Metropolitan Life Insurance Co.

National Labor Relations Board - Board Decisions

Feb 5, 1965

150 N.L.R.B. 1560 (N.L.R.B. 1965)

1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The largest share of the Employer's income is derived from the
University, which pays it a fixed fee for each student enrolled -in the
board plan and receives 16 percent of cash purchases. Most ' of the
Employer's transactions are tied to the student-board arrangement.
During a typical week, 79 percent of the Employer's sales are made
under student meal contracts; 1 percent are made in the cafeterias
through cash sales; 15 percent through cash sales in the snack-
bar; and 5 percent through special catering services to campus
organizations.
All the fixed equipment and nonperishable goods used in the dining
facilities are supplied and owned by the University. The Employer
owns and controls only the perishable food items required in its daily
operations.
Under the Employer's contract with the Board of Regents of State
Colleges of Wisconsin, the University retains certain supervisory con-
trols over the Employer's operations. The Employer has agreed to
comply with all rules and regulations of the University; to keep its
service open and to maintain adequate service at such hours as the
University and the Employer may from time to time mutually deter-
mine; to submit menus for approval by the University at least 1 week
in advance; to use necessary student help at the campus student wage
scale; and to assign to duty only employees • acceptable to the
University.
A similar fact situation was presented to the Board in Crotty
Brothers, N.Y., Inc., 146 NLRB 755, where a union sought to repre-
sent food service employees employed by Crotty at eating facilities
located at Trinity College in Washington, D.C. The Board declined
to assert jurisdiction over Crotty's food service operation since it was
intimately tied to the educational purposes of the nonprofit college.
For the reasons stated by the Board in Crotty, we find that it would
not effectuate the purposes of the Act for the Board to assert juris-
diction here. Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO. 'Case No. 1-CA-4745. Febru-
ary 5, 1965
DECISION AND ORDER
On December 22, 1964, Trial Examiner Harold X. Summers issued
his Decision in the above-entitled proceeding, finding, that the
Respondent had engaged in and was engaging in certain unfair labor
150 NLRB No. 153.
METROPOLITAN LIFE INSURANCE COMPANY 1561
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision and Recommended Order. -
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown]. -
The Board'has considered the Trial Examiner's Decision and the
entire record in this case, including the exceptions of the Respondent,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by ,the Trial Examiner, and orders
that the Respondent, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
In this proceeding , the General Counsel of the National Labor Relations Board,
herein called the Board , issued a complaint 1 alleging that Metropolitan Life Insurance
Company, herein called Respondent , had engaged in and was engaging in unfair labor
practices within the meaning of Section 8(a) (1) and (5) of the National Labor Rela-
tions Act, as amended , herein called the Act. Respondent 's answer to the complaint
failed to respond to some of its allegations , denied others, and pleaded affirmative
defenses ; in effect , it denied the commission of any unfair labor practices.
On November 19, 1964, the General Counsel filed a motion for judgment on the
pleadings . (The motion was referred to Trial Examiner Harold X. Summers and he
was duly designated to rule upon the motion and to act as Trial Examiner in the case
for all purposes .) On November 20, the Charging Party, Insurance Workers Interna-
tional Union , AFL-CIO, herein called the Union, joined in the General Counsel's
motion . On November 25, I issued a telegraphic order on Respondent to respond to
the motion for judgment on the pleadings , showing whether there were any genuine
issues for trial (if so, clearly identifying and stating such issues ) and showing cause,
if any, why the notice of hearing theretofore issued should not be vacated and the legal
issues resolved ,by a written decision after the submission of briefs . On December 2,
Respondent filed a statement of opposition to General Counsel's motion for judgment
on the pleadings and a cross-motion for judgment on the pleadings . On December 4,
I issued a telegraphic order finding that there were no genuine issues of fact for trial
herein but only issues of law which could be decided on briefs; vacating the notice of
hearing herein and deeming the proceeding submitted for decision on the pleadings,
General Counsel 's motion for judgment on the pleadings , the Union 's joinder therein
and Respondent's statement of opposition thereto , Respondent 's cross-motion for judg-
ment on the pleadings , and the record in Case No . 1-RC-7730 [147 NLRB 6881; and
giving the parties the opportunity to furnish further arguments in the form of briefs .2
For the reasons set forth below, I hereby grant the General Counsel 's motion for
judgment on the pleadings and deny Respondent 's cross-motion for judgment on the
pleadings.
1 The complaint was issued on November 6, 1964. The charge initiating the proceeding
was filed on September 23, 1964.
2 Respondent 's request that briefs and arguments submitted in Case No . 1-RC-7730
[147 NLRB 688 ] be considered as fully as if they were resubmitted herein was granted;
such briefs and arguments have been considered herein.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case-the pleadings, the General Counsel's motion for
judgment on the pleadings, the Union's joinder therein and Respondent's statement of
opposition thereto, Respondent's cross-motion for judgment on the pleadings, and the
record in Case No. 1-RC-7730 [147 NLRB 688]-I make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent, at all material times, is and has been a New York corporation with its
principal office and place of business in New York, New York, and a district office in
Holyoke, Massachusetts. In the course and conduct of its business, Respondent causes
and, at all material times, has caused substantial amounts of various types of insurance
to be sold in each of the States of the United States, the premiums for which are
remitted to its New York offices; annually, it derives an amount exceeding $1,000,000
from the sale of insurance outside the State of New York, of which in excess of
$50,000 is remitted from its offices in the Commonwealth of Massachusetts.
I find that Respondent is an employer engaged in commerce within the meaning of
the Act.
H. THE UNION
The Union is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that on or about July 24, 1964, a majority of the employees
in a bargaining unit consisting of all Metropolitan insurance consultants , canvassing,
regular, and office account agents attached to the Employer's district office in
Holyoke, Massachusetts, and to any office which may be detached from the Holyoke
office, but excluding all independent agents, retired agents, managers, assistant mana-
gers, cashiers, clerical employees, secretaries, professional employees, guards, watch-
men, and all supervisors, as defined in the Act, designated or selected the Union as their
representative for the purposes of collective bargaining in a secret election conducted
under the supervision of the Regional Director for Region 1 of the Board; that, on
August 3, 1964, the Union was certified by the Board as representative of the employ-
ees in said unit; that, on or about August 18, 1964, the Union, in writing, requested
Respondent to bargain collectively with the Union as exclusive bargaining representa-
tive of all the employees in said unit with respect to their working conditions, but that,
at all times since on or about August 19, 1964, Respondent has refused to honor the
request. In its answer (with the omission of dates and using language which differs,
but not in substance, from the language used in the complaint),3 Respondent has
admitted these allegations, and I find them to be true.
The complaint further alleges that the above-described unit constitutes a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act; and that, at all material times, the Union has been and is the representative for
the purposes of collective bargaining of a majority of the employees in such unit and,
by virtue of Section 9(a) of the Act, the exclusive representative of all employees in
the unit for the purposes of bargaining collectively in respect to working conditions.
Here, Respondent parts company with the General Counsel. It denies the appropriate-
ness of the unit in question for collective-bargaining purposes within the meaning of
Section 9(b) of the Act, and denies that the Union is and has been the representative
for purposes of collective-bargaining purposes of a majority of the employees in said
unit or, by virtue of Section 9(a), the exclusive representative of all the employees in
the unit for purposes of collective bargaining; affirmatively pleading, it charges the
Board with violating Section 9(c)(5) of the Act in determining that this unit was
appropriate for bargaining purposes by giving controlling effect to the extent to which
the employees had organized.
8Excerpts from the answer : "[ Respondent ] admits : that a secret ballot was conducted
in the unit [described above] ; that [the Union] received a majority of the votes' cast
in the unit [described above] at the election [described above] ; that said Union has
requested the Respondent to bargain collectively with respect to [working conditions]
as exclusive collective bargaining representative of the employees in said unit; and that
the Respondent has refused to bargain collectively with said Union as representative of
employees in said unit,"
METROPOLITAN LIFE INSURANCE COMPANY 1563
A comparison of the allegations of the complaint .and answer, as expanded upon by
the General Counsel's motion for summary judgment, Respondent's statement of oppo-
sition thereto, and Respondent's cross-motion for summary judgment, makes it clear
that Respondent, in its defense here, relies solely upon what it considers to be error on
the part of the Board in Metropolitan Life Insurance Company, Case No. 1-RC-7730
[147 NLRB 6881. It has not offered to present, nor has it presented, any evidence or
arguments not presented to the Board in that matter.4 Under the circumstances, the
Trial Examiner is bound by the Board's ruling in the representation proceeding and the
ensuing certification .5 Therefore, it is found that the above-described unit, found
appropriate for collective-bargaining purposes by the Board,6 is in fact appropriate
for collective-bargaining purposes within the meaning of Section 9(b) of the Act.
It follows, and I find, that the Union, having been selected by a majority of the
employees in said unit, is, by virtue of Section 9(a) of the Act, the exclusive bargain-
ing representative of all employees in the unit for collective-bargaining purposes.
IV. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices , I shall recommend that it be ordered to cease and desist therefrom and
to take certain affirmative action in order to effectuate the policies of the Act.
Upon the foregoing factual findings and conclusions , I come to the ,following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2 ( 6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All Metropolitan insurance consultants, canvassing, regular, and office account
agents attached to the Employer's district office in Holyoke, Massachusetts, and to
any office which may be detached from the Holyoke office, but excluding all inde-
pendent agents, retired agents, managers , assistant managers , cashiers , clerical
employees, secretaries, professional employees, guards, watchmen, and all super-
visors, as' defined in the Act, constitute, and at all times material herein constituted,
a unit appropriate for purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. The Union, at all times material, has been and is the exclusive representative
of all employees in the aforesaid bargaining unit within the meaning of Section
9(a) of the Act.
5. On and since August 19, 1964, by refusing to bargain collectively with the
Union as the exclusive representative of the employees in the aforesaid bargaining
unit, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 ( 6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, and pursuant to Section 10(c) of the Act, I recom-
mend that the Respondent, Metropolitan Life Insurance Company of New York,
New York; its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Insurance Workers International
Union, AFL-CIO, as the exclusive representative of its employees in a bargaining
unit composed of all Metropolitan insurance consultants, canvassing, regular, and
office account agents attached to the Employer's district. office in Holyoke, Mas-
4 Indeed, one of the arguments presented by Respondent in its response to the Trial
Examiner's order to show cause-that' Included in the unit were employees whom the
Union would not and could not fairly represent-took on meaning only by reference to
the representation case, in which Respondent had made the same argument
5 See, e.g., Royal McBee Corporation , 133 NLRB 1450, and cases cited in footnote 5 of
the Trial Examiner's Intermediate Report therein. Cf. Pitt8burgh Plate Class Company
v. N.L.R B., 313 U.S. 146, 158 ("The unit proceeding and this complaint on unfair labor
practices are really one").
Its Decision and Direction of Election, issued on June 25, 1964, is recorded at 147
NLRB 688.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sachusetts , and to any office which may be detached from the Holyoke office, but
excluding all independent agents, retired agents, managers , assistant managers,,
cashiers , clerical employees , secretaries , professional employees , guards, watchmen,
and all supervisors , as defined in the Act.
(b) In any like or related manner , interfering with, restraining , or coercing its
employees in the exercise of their right of self-organization , to form labor organiza-
tions, join or assist any labor organization , bargain collectively through representa-
tives of their own choosing , engage in concerted activities for' the purpose of collec-
tive bargaining or other mutual aid or protection , and refrain from any and all
such activities (except to the extent that the right to refrain may be affected by an
agreement requiring membership in a labor organization , as authorized , in Section
8(a)(3) of the Act.
2. Take the following affirmative action , which I find will effectuate the-policies
of the Act:
(a) Upon request , bargain collectively with the above labor organization as the ex-
clusive bargaining representative of all of its employees in the above-described unit.
(b) Post at its district office located at Holyoke, Massachusetts , copies of the
attached notice marked "Appendix." 7 Copies of such notice, to be furnished by
the Regional Director for Region 1, shall , after being duly signed by an authorized
representative of Respondent , be posted immediately upon receipt thereof and be
maintained by it for a period of 60 consecutive days thereafter in ' conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that such notices are not
altered , defaced, or covered by any other material.
(c) Notify the said Regional Director , in writing , 'within 20 days from the date
of the receipt of this Decision , what steps the Respondent has taken to comply'
herewith 8 -
If this Recommended Order Is adopted by the Board , the words "a Decision and
Order" shall be substituted , for the words " the Recommended Order of a Trial Examiner"
In the notice . If the Board 's Order is enforced by a decree of a United States Court
of Appeals , the notice will be further amended by the substitution of the words "a
Decree of the United States Court df Appeals , Enforcing an Order" for the words "a
Decision and Order."
8 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the said Regional Director , in writing, within 10 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX ,
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner 'of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we notify our employees that:
WE WILL, upon request, bargain collectively with Insurance Workers Inter-
national Union , AFL-CIO, as exclusive bargaining representative of all
employees in a unit composed of insurance consultants , canvassing , regular,
and office account agents attached to our district office in Holyoke , Massachu-
setts, and to any office which may be detached from that office ( but excluding
independent agents, retired agents, managers , assistant managers , cashiers,
clerical employees , secretaries , professional employees, guards, watchmen, and
all supervisors , as defined in the National Labor Relations Act), with respect to
rates of pay, wages, hours of employment , and other conditions of employment;
and WE WILL , if an understanding is reached , embody any such understanding
in a signed agreement. -
WE WILL NOT, by any refusal to bargain , interfere with, restrain,-or coerce
our employees in the exercise of their right to organize ; to form, join , or assist
a labor organization ; to bargain collectively through a bargaining agent chosen
by themselves ; to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection ; or to refrain from any
such activities (except to the extent that the right to refrain is limited by the
lawful enforcement of a lawful union -security requirement).
METROPOLITAN LIFE INSURANCE COMPANY,
Employer.
Dated------------------- By------------------------------------------
(Representative) (Title)
HECK'S DISCOUNT STORE 1565
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston , Massachusetts, Tele-
phone No. 523-8100 , if they have any question concerning this notice or com-
pliance with its provisions.
Heck's, Inc. d/b/a Heck 's Discount Store and Retail Clerks Union
Local 1059 , Retail Clerks International Association , AFL-CIO.
Case No. 9-CA-3158. February 5, 1965
DECISION AND ORDER
On October 28, 1964, Trial Examiner W. Gerard Ryan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
1 We do not find it necessary to rule on Respondent ' s exception to the admission of
Sprague's testimony as hearsay , since, in any event , the Trial Examiner did not rely on it
in making his findings.
' We agree with the Trial Examiner ' s finding that the department heads are super-
visors and his consequent conclusion that Respondent must be charged with Department -
Head Wilkes ' knowledge of Menshouse 's union activities . Regardless of the supervisory
status of the department heads , the record also clearly favors the inference that McCann,
the manager of the Ashland store and an admitted supervisor, had personal knowledge of
Menshouse ' s activities before her layoff on March 31, 1964 . We base this finding on the
following uncontroverted facts: Menshouse personally obtained signed union cards from 11
of the small number of employees at the store ; McCann admitted that several weeks before
he laid off Menshouse , he had heard rumors about union activity in the store ; Darnall,
Respondent's operating manager, whose office was located in another store out of State,
admitted that he was aware of similar rumors before the layoff; and McCann gave
Darnall the names of 8 or 10 union adherents only 3 days after the layoff. The in-
ference is strengthened by the Trial Examiner ' s determination that Respondent's ex-
planation for the layoff was pretextuai.
150 NLRB No. 143.