Metropolitan Life Insurance Co.

National Labor Relations Board - Board DecisionsFeb 1, 1965

150 N.L.R.B. 1478 (N.L.R.B. 1965)

1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL MEMBERS 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, as amended , we hereby notify you that: WE WILL NOT attempt to cause PMTA and its employer-members to discrimi- nate against any of their employees or prospective employees in violation of Section 8 ( a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT restrain or coerce employees or prospective employees of PMTA or its employer-members in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. LOCAL 1332, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Labor Organization. ' Dated------------------- By------------------------------------------- (Representative ) ( Title) 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, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia , Pennsylvania, Telephone No. Pennypacker 5-2612 , if they have any question concerning this notice or compliance with its provisions. Metropolitan Life Insurance Company and Insurance Workers International Union , AFL-CIO. Case No. 2-CA-9734. - Febru- ary 1, 1965 DECISION AND ORDER On November 4, 1964, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain' unfair labor practices, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision . 'Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed exceptions to the scope of the Recommended Order in the Trial Examiner 's Decision and a supporting brief. The Charging Party filed cross-exceptions to the scope of the Recommended Order and an answering brief. 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 reviewed the rulings of the Trial Examiner made at the hearing and finds, that no prejudicial error was committed. 150 NLRB No .. 135. 'METROPOLITAN LIFE INSURANCE COMPANY 1479 The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.1 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Order rec- ommended by the Trial Examiner, and orders that Respondent, Metropolitan Life Insurance Company, its officers, agents, succes- sors, and assigns, shall take the action set forth in-the Trial Exam- iner's Recommended Order with the following modifications : 2 (a) In paragraph 1(a) of the Recommended Order, delete the word "the" before the word "grievances", and "and" before "John Capelluto," and insert the phrase "or any other discharged employee," after "John Capelluto". (b) In paragraph 2(a) of the Recommended Order, insert 'the phrase "or any other employee" at the end of the sentence following the word "individuals". (c) In the second subparagraph of the Appendix, delete the word "and" before "John Capelluto," insert the phrase "or any other discharged employee," after "John Capelluto," and delete the phrase "of said individuals" before the words "were based" at the end of the subparagraph. ' The Trial Examiner inadvertently stated that the Board found a violation of the Act in Sinclair Refining Company, 145 NLRB 732. The Board, however , found it un- necessary to determine whether there had been a violation in that case because the special circumstances presented there led the Board to conclude that it would not ef- fectuate the policies of the Act to issue a remedial order. we note in this connection that the Trial Examiner correctly distinguished Hercules Motor Corporation , 136 NLRB 1648, from the situation here, and that the Board has most recently stated in Fafnir Bearing Company , 146 NLRB 1582, why it does not ef- fectuate the policies of the Act in a situation such as this to defer to the arbitration process Member Fanning sees no essential distinction between the facts and issues in this case and those involved in Hercules . Accordingly, he relies on the reasons set forth in the dissenting opinion in Hercules and in Fafncr Bearing Company , supra, for his finding that Respondent violated Section 8(a) (5) 'We find merit in the exceptions of the General Counsel which go to the scope of the Recommended Order, as we do not consider it clear that paragraph 1(b) thereof would reach similar situations arising because of the Respondent 's asserted policy not to dis- close the information to the Union which was withheld herein. Thus, while this case is not an appropriate one for a broad order, the policy of Respondent does lie at the root of the dispute and should be clearly reached by the remedy. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on January 2, 1964, by Insurance Workers International Union, AFL-CIO (hereinafter referred to as the Union), the complaint herein was issued on March 26, 1964. The complaint alleged that the Metropolitan Life Insur- ance Company ( hereinafter referred to as the Respondent or Company) violated Section 8(a)(5) and ( 1) of the National Labor Relations Act, as amended, by 1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusing to furnish to the Union certain information requested by it with respect to three grievances it filed. Respondent, in its answer, denied that its response to the Union's request was violative of the Act. Pursuant to notice a hearing was held in New York, New York, on June 15, 16, and 17, 1964, before Trial Examiner Stanley Gilbert. All parties were represented by counsel and filed briefs within the time designated therefor. Upon the entire record and from my observation of witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent, a New York corporation with its principal office in the city of New York and with offices located in various of the States of the United States, the District of Columbia, and the Dominion of Canada, is engaged in the business of selling life insurance, accident and sickness policies, and annuities. During the year preceding the issuance of the complaint, a representative period, Respondent, in the course and conduct of its insurance operations, derived a gross revenue in excess of $1 million of which in excess of $50,000 came from its policyholders residing outside the State of New York. During the same period Respondent paid in excess of $1 million in claims to policyholders and beneficiaries residing outside the State of New York. As is conceded by the Respondent, it is, and it has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is conceded by the Respondent, the Union is, and has been at all times mate- rial herein, a labor organization within the meaning of Section. 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE A. Background and chronology of events The facts set forth in this subsection are not in dispute. At all times material herein, the Union has been the exclusive representative of all of Respondent's employees within an appropriate collective-bargaining unit, which unit includes agents. In 1962 the Respondent and the Union executed a collective- bargaining agreement relating to said unit which recited that it was to remain in effect until March 31, 1964. Said agreement provided, inter alia, procedures for the presentation by the Union of grievances and the disposition thereof, including dis- putes arising over the termination of the employment of an agent.' 1 Following are pertinent excerpts from said provisions: . . . when any grievance concerning the termination of any Agent shall arise, the written application [for consideration of the grievance] shall be' filed within fourteen days after written notice of such termination to the Union. k R i t i • The Superintendent of Agencies of the Territory shall review a termination griev- ance with a Committee designated by the Union, . . . within seven business days after receipt of the grievance . . . He shall advise the Union of his decision in writing within seven business days after such review. s s s s r s t Within fourteen business days after written notice of the decision on any griev- ance has been received by the Union it may, if it desires, give notice in writing to the President of the Company of its dissatisfaction with such decision giving Its reasons therefor, in which event the matter may then be referred for conference between the President of the Company and the President of the Union or their designees. Such conference shall be held at the Home Office within fourteen busi- ness days after the Union has notified the Company of its dissatisfaction with the decision . . . . The decision of the President, or his designee, shall be communicated to the Union in writing within ten days after such conference Should the Union be dissatisfied with the Company's decision , the matter may then be referred to arbitration, as hereinafter provided. Grievances may be referred to arbitration by the Union in accordance with the voluntary labor arbitration rules of the American Arbitration Association then obtaining, provided such reference is made by means of written notice to the Com- pany and to said Association not later than thirty business days after the final decision of the Company has been received by the Union in writing. The parties may by mutual consent extend said period. The parties agree to abide by the award subject to such rules and regulations as any Federal Agency having jurisdiction may Impose. METROPOLITAN LIFE INSURANCE COMPANY 1481 Ascribing as its reason therefor his "failure to render proper service" to his policy- holders, Respondent, on July 5, 1963, terminated agent Angelo Sorge. Ascribing as its reasons therefor "failure to render proper service" to their respective policyholders and failure "to produce a satisfactory record of sales accomplishment," Respondent discharged agent Joseph Haggerty on June 28, 1963, and agent John Capelluto on August 23, 1963. The Union filed grievances on behalf of the above-named agents (for Sorge on June 26, 1963, for Haggerty on July 3, 1963, and for Capelluto on August 19, 1963. Each received 2 weeks' notice prior to discharge). The first-step grievance meeting on behalf of Sorge was held on July 3, 1964. The first-step grievance meeting concerning Haggerty was held on July 26, 1963. The first-step grievance meeting with respect to Capelluto was held on September 5, 1963. The second, or final, step grievance meeting (prior to arbitration) was held with respect to all three on October 24, 1963. According to stipulation of the parties hereto, on December 6, 1963, the Union submitted the Sorge grievance for arbitration, and on December 18, it submitted the Haggerty and Capelluto grievances for arbi- tration. The issue raised by the grievances was whether the discharge of each of said agents was for a "just and reasonable cause." By letter dated December 3, 1963, addressed to the Respondent, the Union requested information relating to the discharge of Sorge.2 By letter dated Decem- ber 12, 1963, addressed to the Respondent, the Union requested information relating to the discharge of Haggerty and Capelluto.3 By letter dated December 30, 1963, Respondent notified the Union that it was declining to supply the Union with the information requested and set forth various reasons for its refusal.4 2 The following information was specified in said letter 1. The names of the policyholders as to whom the grievant's failure to render proper service is contended. 2. Specific details of the nature of each failure, stating the time, date and place of such improper service, or the failure to render same. 3. The time and place, if any, that any of the above instances or incidents were brought to the attention of the grievant or the Union, and the name of the person giving such notice. The letter also requested information with respect to his sales accomplishment. How- ever, since Sorge's sales performance was not ascribed as a reason for his discharge, the information requested with respect thereto is not set forth, it obviously not being relevant to the Sorge grievance. Furthermore, the General Counsel was given leave to amend the complaint by deleting from paragraph 10(a) thereof the reference to such information. 3 The information specified in said letter is as follows: 1) The facts and details of, each instance in which the agent is charged with failing to render proper service, including the name of the policyholder, the date, time and place, to whom and when such services were required. 2) State in each case whether the agent was informed of the failure to render services, stating whether such notice was in writing, and the person giving such notice as well as the date, time, and place thereof. 3) State all of the facts upon which the Company relies in terminating the em- ployee for his failure to produce a satisfactory record of sales accomplishments including the following: A) What was the record of sales at the time of the termination B) What was the record for each of the years of the agents employment C) What standard, if any, has the company established for the agents in the district office of Huntington Long Island, below which the Company would consider it to be unsatisfactory D) State the sales records of all agents in the district office at the date of termination of the above named agents, and such records for the years 1962 and 1963. 4) State the time and place and by whom given if any warnings for improper service or unsatisfactory sales accomplishments. 5) State any other facts upon which the Company relied in terminating the agents + The reasons were as follows: 1. The information requested has at the appropriate times been given to the individual agents involved or was within his knowledge. 2 The reasons for the terminations have already been given to the Union during the course of the grievance procedure. [Footnote continued on following page] 1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to the stipulation of the parties, the first hearing date set for the arbi- tration with respect to Sorge was February 11, 1964; the Company requested a deferment to February 27, 1964; the arbitrator, because of illness, rescheduled the hearing on April 6; at the Union's request it was adjourned to April 30; the Union requested an indefinite postponement of the hearing pending the disposition of the instant case which request was denied; the case was adjourned to June 19; and at the time of the hearing in the instant case a further request by the Union for a post- ponement was pending. With respect to the Haggerty and Capelluto grievances, the hearing was first scheduled March 18; it was postponed to April 28 at the Union's request; the Union's request for an indefinite postponement was denied and the hear- ing was scheduled for June 12; and the Union's request that the hearing be adjourned until after June 30 was granted. The record, of course, does not disclose what occurred with respect to the above arbitration proceedings after the hearing in the instant case. B. The issues In its answer Respondent denied the allegations contained in paragraph 10(a) and 10(b) of the complaint (wherein it is recited that the Union requested, on the dates of its letters and at "all times material herein," substantially the information described in the above-mentioned letters of December 3 and 12), but Respondent, in its answer, added an admission that it received the Union's letters. Consequently, the denial of said paragraph 10(a) and 10(b) did not raise a discernible issue, except as to the allegation that the information was requested , not only on the dates of said letters, but also at "all times material herein." This issue is discussed hereinbelow in con- sidering Respondent's first affirmative defense which also raises it. In its answer Respondent alleged four affirmative defenses which may be sum- marized as follows: (1) The information requested had been supplied to the Union or to the dischargees ; ( 2) all the relevant data and information relating to the dis- charges will be supplied at the pending arbitration hearings; (3) the union's sole purpose in filing the charge herein was to use the Board's processes for pretrial dis- covery in the arbitration proceedings; (4) the information sought is of a personal and confidential nature, and its disclosure would injure the Company's business relationships. There is no issue as to whether the information sought by the Union was relevant to an evaluation of the grievances (i.e., whether the discharge was for a "just and reasonable cause" ). It is apparent that the information was relevant . The Respond- ent has not advanced a contention to the contrary. C. The affirmative defenses The only issues herein are raised by the four affirmative defenses which are con- sidered hereinbelow. 1. That the information had been supplied The Respondent contends that the information sought by the Union had been, in fact, supplied to the Union or to the dischargees. Considerable testimony was adduced with respect to interviews between the dis- chargees and their supervisors in which their supervisors discussed with them com- plaints of policyholders and other matters involving their work performance. Respondent elicited uncontradicted testimony from two supervisors (the managers of the offices out of which the dischargees worked) that they discuss each complaint with the agent involved at the time it is received, at which time the agent is given the name of the policyholder involved. 3. The Union is not entitled to the information under the terms of the collective bargaining agreement. 4. Throughout the entire history of the bargaining between this Company and this Union and its predecessors, the Union has never heretofore requested nor has the Company supplied a detailed bill of particulars in a grievance proceeding involving termination. 5 The Union is not entitled to the information as a matter of law. 6. Since the Union has already submitted these cases to arbitration under the contract, your request is obviously now academic. 7. The Union is not entitled to the information under the rules of the American Arbitration Association, now under the law applicable to arbitration proceedings. 8. The Company's detailed relations with its policy holders are of critical im- portance to the operation of its business and should not be made the subject of a fishing expedition through the guise of grievance administration. METROPOLITAN LIFE INSURANCE COMPANY 1483 Sorge's supervisor, Thomas Lynch, testified that a month or so before Sorge's dis- charge he discussed with him a "compilation" of all the complaints against him and that on the date that Sorge was discharged he reviewed approximately 75 percent of the complaints in Sorge's file. Sorge testified that: there was no such review of complaints at the time he was discharged; the only complaint that was referred to was a "Newman Case"; he asked if he was being crucified for that one case; Lynch stated that he was not; and Lynch did not mention any other cases. Although Lynch first testified that at the time Sorge was notified of his discharge, he (Lynch) reviewed 75 percent of the complaints upon which the discharge was predicated, he later testified that at the time of the discharge "he could have discussed it [the complaints], it could have been one or two, or three, or four, of the cases I discussed with him at the time that he sat at my desk and wanted to know further about the reasons [for his discharge]." Therefore, Sorge's testimony is credited that he did not receive, at the time of his discharge, a review of the complaints upon which the Respondent relied as reason therefor. It is apparent from the record that the complaints num- bered far in excess of "one or two, or three, or four." Earl P. Rubini, Haggerty's and Capelluto's supervisor, testified to reviewing com- plaints with Haggerty and Capelluto. He testified that he went over the complaints with the agents at the time they were received and, on occasion , reviewed a number of complaints with them, the last time being sometime prior to their discharges. It appears from his testimony that in such reviews he discussed "the nature of the complaints" but "did not, however, review each complaint."" He further testified that he did not review any complaints with them at the time each was discharged. There is no need to resolve the question of whether Respondent was obligated to supply the Union with information sought with respect to grievances even though the employee involved had such information, since it does not appear that all of the information sought was possessed by the dischargees . It cannot be assumed that the agents knew which of the many complaints received (over the 2-year period considered by Respondent in the cases of Haggerty and Capelluto and the 3-year period considered in the case of Sorge) were relied upon by Respondent as bases for the terminations . It is reasonable to assume* that many of such complaints were either trivial, unjustified, or did not reflect on the performance of the agent. It is unreasonable to assume that, even if the agents were able to sort out the particular complaints which he believed the Company would consider to be serious in nature, their memories could supply them with details thereof. Each agent serviced about 1,000 poliices distributed among approximately 350 families. In view of the large number of policyholders, it appears that the name of the policyholder who made each particular complaint would be of considerable aid to the agent in recalling the perti- nent details of the complaints, so that the Union could ascertain from a discussion with him whether his grievance should or should not be processed, and upon what basis, if any, the grievance could be adjusted. ' The general principle is well established that information requested by the Union relevant to its administration of its collective-bargaining agreement with an employer should be made available to the Union and that failure to supply the information constitutes a refusal to bargain in good faith .5 N.L.R.B. v. Truitt Manufacturing Co., 351 U.S. 149. This affirmative defense does not raise the issue of whether the names of the policyholders who lodged the complaints are relevant to the grievances, but, rather, whether the agent was in possession of the information sought. The argument that the names had been furnished to the agents when the complaints were received is not very impressive.6 It is predicated upon an assumption that the memo- ries of the agents are far more retentive than that which can be assumed with respect to the memory of the normal or average man. It is concluded that the agents were not in possession of all the information (in particular the names of the policyholders upon whose complaints Respondent based the discharges) required by the Union to enable it to evaluate whether the com- plaints against said agents constituted "just and reasonable cause" for their discharge. 5 This presupposes that an overriding consideration does not exist , such as an undue burden upon the employer to furnish the information The question of whether such a consideration existed in this case is raised by the fourth affirmative defense and is discussed hereinbelow. IIt does not appear that when complaints were subsequently "reviewed" with the agents that the names of the policyholders were again revealed , but rather that it was a review of the "nature" of the complaints. 1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Considerable testimony was adduced with respect to what information was requested and what information was given during the meetings at the two steps of the grievance procedure preliminary, to arbitration. It appears that the Company did outline the nature of the complaints made and quoted excerpts from some of them, but that it refused to furnish the Union with the identity of the policyholders who made such complaints. It further appears that the Union urged that it needed the names of the policyholders so that the grievants could identify each particular complaint and furnish the Union with a basis for its determination whether the complaints relied upon by Respondent did or did not constitute a just and reasonable cause for their discharge. Armed with only the information of the nature of the various categories of complaints and without the information of the particular policyholders involved it is apparent that the Union was not placed in a position to discuss the complaints with the grievants and therefrom make an intelligent evalua- tion of the grievances. If the Union could not question the grievant as to the details of said complaints, it could not determine whether the complaints did or did not justify the discharge. In view of the fact that the Respondent does not contend that the other information sought was irrelevant but, on the contrary, offered to furnish such information both shortly before and during the course of the hearing, no pur- pose would be served in analyzing the testimony to determine which of such infor- mation was or was not requested or which was or was not given during the grievance meetings? It is concluded that there is no merit in this affirmative defense. 2. That the information will be supplied at the arbitration hearing This defense does not meet the issue raised by this proceeding. The information, requested by the Union during the first two grievance steps and summarized in its letters of December 3 and 12, 1963,8 was sought by the Union for the purpose of determining whether the grievances did or did not have merit. It would have enabled the Union to drop the grievances if they did not have merit, to bargain with the Company during the grievance meetings over the resolution of the grievances, and to determine whether they were of sufficient merit to warrant their prosecution before an arbitrator. It is no answer to a request for information for these purposes to state that the information will be forthcoming in the course of the arbitration proceeding. To deny the Union information required by it to accomplish the above- mentioned purposes would make an exercise in futility out of the first two steps of the grievance procedure, and to countenance the denial would not effectuate the purposes of the Act. If an employer were to be entitled to refuse information needed to process grievances upon the ground that the information will ultimately be disclosed at an arbitration proceeding, it would put the employer in a position to force the union to arbitration (and the expenses entailed), even in those instances where, had the union had the information, it would have determined that the griev- ances were without merit. In the instant case it appears that the names of the policyholders (upon whose complaints the discharges were predicated) was sought so that the Union and the agent involved could identify the particular complaints, thereby enabling the Union to determine from discussion with the agent whether they did constitute a just and reasonable cause for his discharge. If the complaints did, the Union would have then been justified in dropping the grievance. If there was any question whether the complaints did, the Union would then be in a position to bargain during the griev- ance meetings with respect to a resolution of the grievance. If the complaints did not, or there was a question whether they did, constitute a just and reasonable cause for discharge, then the Union would have been placed in a position of making an appropriate decision whether to resolve the issue by arbitration. 7 The offer included all information sought by the Union except the identity of the policyholders who allegedly complained about the service of the grievants. 8 The complaint alleges that the information was requested on the dates of said letters "and at all times material herein." This would include requests made during the grievance meetings. The record indicates that the Union was seeking during the grievance meetings all of the information described in said letters, and that it indicated that without the names of the policyholders the other information was of little value to it. METROPOLITAN LIFE INSURANCE COMPANY 1485 Several cases were cited by Respondent in support of its position , particularly Hercules Motor Corporation, 136 NLRB 1648 (1962), and the reasoning of the Trial Examiner in Sinclair Refining Company, 145 NLRB 732 (1963). The Hercules case is not applicable to the facts in the' instant case. In that case the Board dis- missed the complaint which alleged as a violation of the Act the refusal to supply information in connection with a grievance. The Board pointed out that the issue existed therein whether the grievance was arbitrable, a dispute which had to be set- tled in the Union's favor before the grievance could be considered. The Board stated, "Manifestly, the information which the Union sought . . . could have no bearing upon the resolution of this dispute over contract interpretation." In finding a violation of the Act in Sinclair Refining Co., the Board took note of the Hercules case and distinguished it for the same reason it is distinguished from the instant cases Further, in Timken Roller Bearing Company, 138 NLRB 15, 16, the Board, in finding a violation of the Act for failure to supply information (wage data), stated, "To hold otherwise would contravene our well-established rule that the mere existence of a grievance machinery does not relieve a company of its obligation to furnish a union with information needed to perform its statutory functions." See also Fafnir Bearing Company, 146 NLRB 1582, and N.L.R.B. v. Otis Elevator Co., 208 F. 2d 176, 179 (C.A. 2, 1953). Clearly, the processing of grievances is a statu- tory function. Section 9(a) of the Act. It is concluded that there is no merit in this affirmative defense. 3. That the Union's sole purpose in filing the charge herein was to use the Board's processes for pretrial discovery in the arbitration proceedings Although the charge was filed on January 2, 1964, subsequent to the dates that the Union submitted the grievances for arbitration, it does not appear that there is merit in this affirmative defense. The arbitration hearings were still pending at the time of the hearing in the instant case and, if the information requested by the Union were furnished to it prior to the hearing in the arbitration proceedings, it would enable the Union to determine whether it should or should not proceed with arbitration. Furthermore, the appropriate remedy herein, in view of the finding hereinbelow that the allegations of the complaints were sustained, would not only require that the Respondent furnish the information sought, but also to cease and desist from refusing to furnish such information in the future.10 Obviously, if the hearings have already been concluded in the arbitration proceeding, there would be no practical value in the remedy that the particular information requested in con- nection with the three grievances involved herein be furnished. However, an order requiring the Respondent to furnish such information in the future would prevent a repetition of the unfair labor practice found herein. A considerable portion of Respondent's brief is devoted to the argument that the Board should not lend its processes to pretrial discovery in arbitration proceedings. The fact that the information needed by the Union to process grievances would also constitute evidence presented before the arbitrator (should the grievance be submit- ted to arbitration) is not a valid reason for denying the Union such information. It is well settled that, in the absence of overriding circumstances, it is a violation of the Act for an employer to refuse information to the Union relevant to an adjust- ment of grievances presented by it. It is more than likely that information relevant to the adjustment of grievances would also constitute evidence to be submitted to the arbitrator. It would not effectuate the policies of the Act to deny the Union information which might enable it to adjust grievances amicably for the reason that 9 The Board stated in Timken Roller Bearing: Further, in Its Hercules decision the Board majority specifically noted that that case was not one "where a union simply sought, and was denied, information which was relevant to its task as bargaining agent in negotiating a contract, or policing or administering a contract , or adjusting a grievance." However, in the present case we are dealing with precisely that situation 'ekpressly ruled out in Hercules, for, as indicated above, here the Union wants data for purposes of "policing or ad- ministering a contract , or adjusting a grievance." [Emphasis supplied.] 10 The Recommended Order will require Respondent to cease and desisc from refusing to furnish the information relevant to the grievances, including the names of the policy- holders, and- to cease and desist from violating the Act in a "like or related manner." 1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requiring it be furnished would reveal the -evidence the employer intends to submit to an arbitrator . Such "pretrial" disclosure of the evidence is not a circumstance which should override the desirability of putting the Union in a position to adjust grievances through bargaining , or to determine the advisability , if adjustment is not accomplished , of submitting the grievance to arbitration. 4. That the information sought is of a personal and confidential nature and disclosure would injure the Company 's business relationships ,Although this affirmative defense was alleged in its answer , Respondent made no argument in its brief in support thereof, nor did it indicate upon what it relied in the record to sustain it. The only testimony elicited by Respondent which can be related to this defense was with respect to a Company "policy " of some years ' stand- ing not to reveal the names of policyholders to the Union in connection with griev- ances over terminations based upon complaints of policyholders . John J . Gill, agency vice president of Respondent , who testified to the existence of this policy , testified as follows to the reason therefor: The reason that we haven't-do not give the names and addresses of policy- holders is because we, in the past, have done this and have found that the policyholders have [been] harassed by certain individuals going back to find out why they complained and do you realize the seriousness , that it is hurting the individual which you complained about, and so forth, and we do not want to be a party to any further harassment of the policyholder. There is nothing in the record , however , to show that policyholders had, in fact, been "harassed" as claimed by Gill . It appears from Gill 's testimony that the,harass- ment to which he testified was only hearsay. On the other hand , Mortimer Gellis, president of Local 5 of the Union, who was actively engaged in the processing of the grievances involved herein , testified with- out contradiction , that the official of the Respondent , who Gill testified informed him of the "policy" ( a Mr. Lawrence ), had, in the past, been the official who processed grievances for the Company , and that he had furnished the names of policyholders to the Union in connection with termination grievances . Furthermore , he testified, again without contradiction , that such information , had also been supplied to him in the past by another official of the Company (G. Hayle Wright ). Gellis testified also that he has been processing grievances with the Respondent for almost 20 years, that there had been no previous refusal to furnish names of policyholders,11 and that never , to his knowledge , has a union representative questioned a, policyholder about complaints. Assuming, for the sake of argument , that the fear of harassment of policyholders would be a valid reason for withholding,the information , there is no showing in the record of a reasonable basis for such fear. The insubstantiality of this defense is further indicated by the argument made by the Respondent in connection with its first affirmative defense; i.e., that the Union could have obtained the names of the policyholders from the grievants. It is therefore concluded that the record will not support a finding that the names of the policyholders constitute information of a "personal and confidential nature," or that disclosure of the names would injure the Company 's business relationships. Consequently , this affirmative defense is deemed to be without merit. It does not appear that there is any overriding consideration which would make it inappropriate for the Board to apply in this case its established principle that infor- mation relevant to the adjustment of grievances should , upon request therefor, be furnished to the Union , and that a refusal to furnish such information constitutes a refusal to bargain in good faith. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE The conduct of the Respondent , set forth in section III, above , occurring in con- nection with its operations described in section I, above, has a close , intimate, and substantial relation to trade , traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructign commerce and the free flow thereof. ll He testified that in the several years preceding the grievances Involved herein he had not processed any grievance over a termination for failure to service policyholders. METROPOLITAN LIFE INSURANCE COMPANY V. THE REMEDY 1487 Having found that the Respondent has engaged in an unfair labor practice by refusing to furnish the Union with the information requested by it relevant to griev- ances (for the termination of agents) filed by the Union, particularly the names of the policyholders upon whose complaints the terminations were based, it will be recommended that Respondent cease and desist from such refusal and take certain affirmative action designed to effectuate the policies of the Act.12 It will also be recommended that the Respondent cease and desist from like and related conduct in order to prevent a repetition of the unfair labor practice found herein. It will be further recommended that the Respondent, upon request, furnish the Union with all information relevant to the grievances involved herein, including the names of policy- holders, so that the Union may be able to discharge its function as the statutory representative of Respondent's employees. Upon the basis of the above findings and conclusions and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By refusing to furnish to the Union all of the requested information (in par- ticular the names of the policyholders) relevant to grievances filed by the Union with respect to the discharges of Angelo Sorge, Joseph Haggerty, and John Capelluto, the Respondent has violated Section 8 (a) (5) and (1) of the Act. 2. The affirmative defenses alleged by the Respondent are without merit. RECOMMENDED ORDER On the basis of the above findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the Respondent, Metropolitan Life Insur- ance Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to furnish the Union with all requested information relevant to the grievances filed by the Union over the discharges of Angelo Sorge, Joseph Haggerty, and John Capelluto, including the names of the policyholders upon whose com- plaints Respondent based said discharges. (b) Refusing to bargain with' the Union in good faith in any like or related manner. 2. Take the following affirmative action which it is deemed will effectuate the poli- cies of the Act: (a) Upon request, furnish the Union with all information relevant to the griev- ances filed by the Union with respect to the discharges of the above-named individuals. • (b) Post in its offices where the above-named dischargees were employed; copies of the attached notice marked "Appendix." 13 Copies of such notice, to be furnished by the Regional Director for Region 2, shall, after being signed by an authorized representative of the 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 the Respondent to insure that such notices are not altered, defaced, 'or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.14 i' No purpose would be served in setting forth in detail said information, inasmuch as Respondent has made it clear on the record that it is willing to furnish all of the information requested by the Union except.the names of the policyholders involved 's 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 of Appeals, Enforcing an Order" for the words "a Decision and Order". 141f this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Second Region in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 775-692-65-vol. 150-95 1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, as amended , we hereby notify our employees that: WE WILL NOT refuse to bargain in good faith with the Insurance Workers Intematioanl Union, AFL-CIO, by refusing to furnish to said Union all infor- mation requested by it relevant to grievances filed by it. WE WILL, upon request, furnish to the Insurance Workers International Union, AFL-CIO, all information relevant to grievances filed by the Union on behalf of Angelo Sorge, Joseph Haggerty, and John Capelluto, including the names of the policyholders upon whose complaints the discharges of said individuals were based. METROPOLITAN LIFE INSURANCE COMPANY, Employer. Dated------------------- By-------------------------------------------(Representative) (Title) 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, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any questions concerning this notice or compliance with its provisions. Local 106, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Local 67, International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO [L. G. Barcus and Sons, Inc.] and Builders' Association of Kansas City.. Case No. 18-CP-36. February 1, 1965 'DECISION AND ORDER On August 20, 1964, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Re- spondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dis- missed, as set forth in the attached Trial Examiner's Decision. Thereafter the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision, and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in con- nection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has con- sidered the Trial Examiner's Decision, the exceptions and briefs, 150 NLRB No. 133.