Metropolitan Life Insurance Co.

National Labor Relations Board - Board Decisions

Jan 27, 1965

150 N.L.R.B. 1298 (N.L.R.B. 1965)

1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act : All production
and maintenance employees, including truckdrivers and cleanup
employees, employed at the Employer's Grass Valley, California,
sawmill and planing mill, excluding office clerical employees, guards,
and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO. Case No. 14-CA-3459. Janu-
ary 27, 1965
DECISION AND ORDER
On November 24, 1964, Trial Examiner Reeves R. Hilton issued
his, Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
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.
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 Respond-
ent, and hereby adopts the findings, conclusions, and recommenda-
tions 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 Respondent, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed by the above -named Union , the General Counsel of the National
Labor Relations Board issued a complaint , together with a notice of hearing, dated
September 29, 1964, which alleges, in substance, that:
(1) All Metropolitan Insurance consultants and canvassing , regular, and office
account agents of the Company, attached to the district office and to the Litchfield
150 NLRB No. 127.
METROPOLITAN LIFE INSURANCE COMPANY, 1299
and Gillespie detached offices attached to' the district office in Alton, Illinois, with
specified exclusions, constitute an appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
(2) On or about May 13, 1964, the Regional Director for Region 14 issued his
Decision and Direction of Election in Case No. 14-RC-4792, in which an election
by secret ballot in the above-described unit was directed.
(3) On or about June 26, 1964, the employees of the Respondent in said unit, in
a secret election, designated and selected the Union as their representative for the
purposes of collective bargaining with the Respondent and on or about July 7, 1964,
the Regional Director certified the Union as the representative of the employees in
said unit and the Union continues to be such representative.
(4) On or about July 31, 1964, and continuing thereafter, the Union has requested
the Respondent to bargain collectively with it as the exclusive collective-bargaining
representative of all the employees in said unit, but commencing on or about August 1,
1964, and at all times thereafter, the Respondent refused, and continues to refuse,
to recognize or bargain collectively with the Union as the exclusive collective-bargain-
ing representative of all the employees in said unit.
(5) By such conduct , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (5) and (1) and Section 2(6) and
(7) of the Act.
Respondent's answer, by failing to deny, admitted the jurisdictional and procedural
allegations of the complaint and the status of the Union as a labor organization. The
answer admits that a secret ballot election was conducted in the unit,set forth in the
complaint; that the Union received a majority of the ballots at said election; that the
Regional Director certified the Union as the bargaining representative of the employ-
ees in said unit; that the Union has requested the Respondent to bargain with it as
the exclusive collective-bargaining representative of the employees in said unit; and
that the Respondent has refused to do so. The answer denied all other allegations
of the complaint, including those relating to the appropriateness of the bargaining
unit, the status of the Union as exclusive representative of all employees in said unit
and the commission by the Respondent of any unfair labor practices within the mean-
ing of the Act. As affirmative defenses, the Respondent alleged that: (1) the unit
does not constitute a unit appropriate for collective-bargaining purposes within the
meaning of Section 9(b) of the Act, and (2) the Board violated Section 9(c)(5) of
the Act in determining that the unit was appropriate for collective-bargaining purposes
by giving controlling effect to the extent to which the employees had been organized.
About October 9, 1964, the General Counsel filed and served a motion for judg-
ment on the pleadings. In support thereof he contended that: (1) the Respondent's
answer admitted all the material allegations of the complaint; (2) the affirmative
defenses pleaded by the Respondent have been raised and litigated in the underlying
representation proceeding, supra, and the Respondent may not raise these issues in
this complaint proceeding before the Trial Examiner, who is bound by the Board's
Decision; and (3) the allegations of the complaint must be found to be true and the
Trial Examiner should make findings of fact and conclusions based thereon.
The Regional Director referred the motion to the Chief Trial Examiner and- Reeves
R. Hilton was duly designated as Trial Examiner herein. On October 14, 1964, I
issued and caused to be served upon all the parties, an order directing the Respondent
to show cause, on or before November 2, 1964, why an order should not be made
herein: (1) vacating the notice of hearing for failure of the pleadings to raise any
issue of fact; (2) setting a date for submission of briefs; and (3) deeming this pro-
ceeding submitted for decision on the pleadings and briefs. The order also directed
the Respondent to set forth the evidence, if any, newly discovered or not available at
the time of the representation proceeding, which it would offer at any hearing held
in this complaint proceeding.
In answer to the order to show cause, the Charging Party joined in the motion of
the General Counsel and the General Counsel filed no additional return. The
Respondent, on October 21, 1964, filed a "Statement in Opposition to Motion of
General Counsel for Judgment on the Pleadings and Cross Motion for Judgment on
the Pleadings" from which it appeared that the Respondent relied, for its defense
herein, on the record in Case No. 14-RC-4792 and that its cross-motion for dis-
missal of the complaint and revocation of the certification was based upon its con-
tentions that (1) the Board acted arbitrarily and capriciously in determining a bar-
gaining unit inappropriate under Section 9 of the Act; (2) the Board's unit determi-
nation was controlled, in violation of Section 9(c) (5) of the Act, by the extent to
which the employees had organized and that the Board's inclusion of insurance con-
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sultants in a unit of debit agents was arbitrary and capricious because, as the evidence
in the representation demonstrated, the Union cannot and will not fairly represent
these employees.
It appearing, therefore, that there were no issues of -fact herein requiring a hearing
before a Trial Examiner for the purpose of issuing a Decision, on October 23, 1964,
I issued an order vacating the notice of hearing and directing that this case be deemed
submitted for decision on the pleadings, the motion papers and the record in Case
No. 14-RC-4792.
Rulings on Motions
Two issues are raised by Respondent's answer in this case: (1) whether the unit
described in the complaint, for the employees in which the Union has been certified
as the collective-'bargaining representative, is an appropriate unit for such purposes
within the meaning of Section 9(b) of the Act and (2) whether the Board, in deter-
mining that said unit was appropriate for collective-bargaining purposes, violated
Section 9(c) (5) by giving controlling effect to the extent to which the employees had
organized." '
The appropriateness of the unit was litigated by the parties and decided by the Board
in the underlying representation proceeding and may not be relitigated-absent newly
discovered evidence-in this case. As the Supreme Court stated, in Pittsburgh Plate
Glass Co. v. N.L.R.B. (313 U.S. 146, 148): "The unit proceeding and this complaint
on unfair labor practices are really one." Accordingly, the decision of the Board,
which is binding upon me, is diapositive of this question.'
The affirmative defense that the Board, in determining that the unit was appropriate
for collective-bargaining purposes, gave controlling effect to the extent of organization,
is raised, of course for the first time, in this proceeding,2 but the Respondent did *not
propose, in its return to the order to show cause, to offer evidence in support of this
defense .3
It is apparent from the foregoing-and all parties, by their motions for judgment on
the pleadings, concede-that there are no factual issues litigable before me and that
the legal issue has been decided by the Board. Accordingly, the General Counsel's
motion is granted and, on the basis of the entire record herein, including the representa-
tion case, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a New York corporation whose principal office is located in New
York, New York, is engaged in the State of New York and various other States of
the United States in the business of selling and issuing life, industrial, and personal
health insurance policies.4 The Respondent presently has in effect in excess of 44
million policies of insurance having a total face value in excess of $94 billion. It
presently has policies of insurance in effect in the State of Illinois valued in excess of
$4 million from which it annually derives revenues in excess of $50,000. According
to the undenied allegations of the complaint, the Respondent, annually, in the course
and conduct of its business operations at its offices in Alton, Litchfield, and Gillespie,
Illinois, derives an income in excess of $1 million, of which more than $50,000 was
remitted to its principal office from the State of Illinois. The Respondent concedes
'Metropolitan Life Insurance Company, 141 NLRB 337, enfd. 328 F. 2d 820 (C.A. 3) ;
Metiopolitan Life Insurance Company, 141 NLRB 1074, enfd. 330 F 2d 62 (CA. 6) ;
Esquire, Inc., 109 NLRB 530, 538-539, enfd. 222 F. 2d 253 (CA. 7)
'The pasties stipulated as the record in Case No 14-RC-4792, the record in Case
No. 13-RC-9051 in which the Board (144 NLRB 149), modifying the Decision of the
Regional Director, held that a unit limited to certain of the Respondent's employees
within the city of Chicago area was appropriate and that inclusion of others in desig-
nated suburban areas-including will County in which Joliet is located-was not re-
quired. In that case the Respondent, in addition to questioning the appropriateness
of the unit because it contained "consultants" as well as "debit agents" and others,
asked that, the petition be dismissed because "the petition was based solely on the union's
extent of organization." In that case, the Union was certified and, upon Respondent's
admitted refusal to bargain, the Board held that Respondent violated Section 8(a)(5)
(146 NLRB 972).
a The contention may have been introduced into this proceeding at this time so that,
at some later date, a court of appeals may be requested so to conclude . (See Metropolitan
Life Insurance Company v. N.L.R.B., 327 F. 2d 906 (C.A. 1) setting aside 142 NLRB 491 )
* The Respondent's offices located in Alton, Litchfield, and Gillespie, Illinois, are the
only facilities involved in this proceeding.
METROPOLITAN LIFE INSURANCE COMPANY 1301
it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act,
and I so find.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The representation proceeding
1. The unit
All Metropolitan Insurance consultants and canvassing , regular, and office account
agents of the Company, attached to the district office and to the Litchfield and
Gillespie detached offices attached to the district office in Alton, Illinois, excluding
independent agents, retired agents, managers , assistant manager, cashiers , clerical
employees, secretaries, professional employees, guards, watchmen, and supervisors
as defined in the Act, constitute a unit appropriate for the purposes of, collective bar-
gaining within the meaning of Section 9(b) of the Act.
2. The certification
On or about June 26, 1964, a majority of the employees of the Respondent in the
unit described above, by a secret ballot election conducted under the supervision of-
the Regional Director for Region 14 of the National Labor Relations Board, desig-
nated and selected the Union as their representative for the purposes of collective
bargaining with the Respondent. On or about July 7, 1964, said Regional Director
certified the Union as the exclusive bargaining representative of the employees in said
unit. The Union is, and at all times since July 7, 1964, has been, the representative
for the purpose of collective bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment of the employees in the
unit described above.
3. The request to bargain and the Respondent's refusal
Commencing on or about July 31, 1964, and continuing to date, the Union has
requested, and is requesting, the Respondent to bargain collectively with it as the
exclusive bargaining representative of all the employees of the Respondent in the unit
described above. On or about August 1, 1964, the Respondent refused, and at all
times thereafter continues to refuse, to bargain collectively with the Union as the
exclusive bargaining representative of all the employees in the unit described above in
that the Respondent has refused to meet, negotiate, or discuss with the Union matter
with respect to rates of pay, wages, hours, and other terms and conditions of
employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connec-
tion with its operations set forth in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom and take
affirmative action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and the entire record in,th a case, including
the representatioh proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 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 and canvassing, regular, and office
account agents of the Company, attached to the district office and to the Litchfield
and Gillespie detached offices attached to the district office in Alton, Illinois, excluding
independent agents, retired agents, managers, assistant manager, cashiers, clerical
employees, secretaries, professional employees, guards, watchmen, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Since on or about, July 7, 1964, the Union has been and is the exclusive repre-
sentative for the purposes of collective bargaining of the employees in the unit
described above.
5. By refusing to bargain collectively with the Union as the exclusive representative
of the employees in the appropriate unit on or about August 1, 1964, and thereafter,
the 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 affect commerce, within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in this case and in the representation proceeding, I recommend that the
Respondent, Metropolitan Life Insurance Company, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Insurance Workers International Union,
AFL-CIO, as the exclusive bargaining representative of its employees in the following
unit:
All Metropolitan Insurance consultants and canvassing, regular, and office account
agents of the Company, attached to the district office and to the Litchfield and Gillespie
detached offices attached to the district office in Alton, Illinois, excluding independent
agents, retired agents, managers, assistant manager, cashiers, clerical employees, secre-
taries, professional employees, guards, watchmen, and supervisors as defined in the
Act.
(b) Interfering with the efforts of Insurance Workers International Union, AFL-
CIO, to negotiate for or represent the employees in the said appropriate unit as the
exclusive bargaining agent.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request, bargain collectively with Insurance Workers International
Union, AFL-CIO, as the exclusive representative of all the employees in the appro-
priate unit described above, with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its offices located in Alton, Litchfield, and Gillespie, Illinois, copies of
the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by
the Regional Director for Region 14, shall, after being duly signed by Respondent's
representative, be posted by it immediately upon receipt thereof, and be maintained
by it for 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 said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 14, in writing, within 20 days from
the receipt of this Decision and Recommended Order, what steps the Respondent has
taken to comply herewith.°
5In the event that this Recommended Order be 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 In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
61n the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read, "Notify 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, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Insurance Workers Interna-
tional Union, AFL-CIO, as the exclusive representative of the employees in the
bargaining unit described below.
ALTON-ARLAN'S DEPT. INC. 1303
WE WILL NOT interfere with the efforts of Insurance Workers International
Union , AFL-CIO, to negotiate for or represent as exclusive bargaining agent the
employees in the bargaining unit described below.
WE WILL, upon request, bargain with the above-named Union, as the exclusive
representative of all the employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment, and other conditions of
employment , and, if an understanding is reached, embody such an understanding
in a signed agreement.
The bargaining unit is:
All Metropolitan Insurance consultants and canvassing , regular, and office
account agents of the Company, attached to the district office and to the
Litchfield and Gillespie detached offices attached to the district office in
Alton, Illinois, excluding independent agents, retired agents, managers,
assistant manager, cashiers , clerical employees , secretaries, professional
employees , guards, watchmen, and supervisors , as defined in the Act.
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, 4459
Federal Building , 1520 Market Street, St. Louis, Missouri, Telephone No. Main
2-4142, if they have any questions concerning this notice or compliance with its
provisions.
Alton-Arlan's Dept. Store , Inc. and Retail Clerks Local 149, Re-
tail Clerks International Association , AFL-CIO. Case No.
141-CA-3248. January 07, 1965
DECISION AND ORDER
On October 13, 1964, Trial Examiner Morton D. Friedman issued
his Decision in the above-entitled proceeding, finding that 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. The Trial Examiner also
found that Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed with
respect to such allegations. Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision, and also filed a supporting brief.'
The Charging Party filed a brief in answer to the exceptions.
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 [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 committed.
1 The Respondent has requested oral argument . Because, in our opinion , the record
and briefs adequately set forth the issues and position of the parties , this request is
hereby denied.
150 NLRB No. 124.