Prudential Insurance Co.

National Labor Relations Board - Board Decisions

Nov 13, 1968

173 N.L.R.B. 792 (N.L.R.B. 1968)

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prudential Insurance Company and Insurance Workers
International Union , AFL-CIO. Case 5-CA-
3907
November 13, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a charge filed on September 19, 1967,1 by
Insurance Workers International Union, AFL-CIO,
herein called the Union, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 5, issued a complaint and notice of
hearing, dated November 27, against Prudential In-
surance Company, herein called Respondent, alleging
that Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (5) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of
charge and complaint and notice of hearing were duly
served upon Respondent.
With respect to the unfair labor practices, the
complaint alleges, in substance, that the Union is the
exclusive bargaining representative of Respondent's
insurance agents in a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act, 2 and that Respondent and
the Union are parties to a collective-bargaining agree-
ment , effective from on or about September 26 The
complaint further alleges that on or about August 27,
the Union requested that Respondent furnish it with
a list of the names and addresses of all bargaining unit
employees in order to permit the Union to bargain
intelligently with Respondent and to perform its
duties and functions with respect to the administra-
tion of the collective-bargaining agreement , and that
at all times material, Respondent has refused to honor
this request, and by such conduct has violated Section
8(a)(5) and (1) of the Act.
On December 7, Respondent duly filed its answer,
admitting certain allegations of the complaint, but
denying the commission of any unfair labor practices.
On February 28, 1968, all parties to this pro-
ceeding entered into a stipulation of facts in lieu of
hearing and stipulated that the proceeding be trans-
ferred directly to the Board for findings of fact,
I Unless otherwise indicated , all events occurred in 1967.
2 The complaint describes the appropriate unit as follows all district
agents employed or hereafter to be employed by Respondent in districts
whose district offices are located in the States of Alabama , California,
Colorado , Connecticut , Delaware , Florida , Georgia, Illinois , Indiana,
Iowa, Kansas , Kentucky , Louisiana , Maine, Maryland , Massachusetts,
Michigan , Missouri, Nebraska , New Hampshire , New Jersey, New York,
conclusions of law, and issuance of a Decision and
Order based thereon. In the stipulation, the parties
agreed that the stipulation of facts and the exhibits
attached thereto, including the charge, complaint, and
notice of hearing, and Respondent's answer would
constitute the entire record in this case. The parties
further stipulated that they waived a hearing before a
'Trial Examiner, the making of findings of fact and
conclusions of law by a Trial Examiner, the issuance
of a Trial Examiner's Decision, and the right to
request oral argument before the Board. The parties
also expressly reserved the right to file briefs with the
Board.
On February 29, 1968, the Board approved the
stipulation, accepted the transfer of the case, and set
March 29, 1968 as the due date for briefs and April
15, 1968 as the due date for reply briefs. Briefs were
timely filed by Respondent, the General Counsel, and
the Union. A reply brief was also filed by Respondent
in timely fashion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the basis of the stipulation and the entire
record in this case, including the briefs, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a New Jersey corporation with offices
in various States of the United States and the District of
Columbia, where it is engaged in the business of
selling and issuing life insurance, health insurance,
group insurance, and annuity contracts. During the
past 12 months, a representative period, Respondent
received as premiums on insurance and annuity
contracts a sum well in excess of $1 million of which
well in excess of $50,000 in premiums were received
from outside the State of New Jersey, and paid out
on claims under said contracts a sum exceeding $500
million of which well in excess of $50,000 in claims
were paid to customers outside the State of New
Jersey.
We find, in accordance with the stipulation, that
Respondent is engaged in commerce within the
North Carolina, Oklahoma , Oregon, Pennsylvania , Rhode Island, South
Carolina, Tennessee , Utah, Vermont, Virginia, Washington , and West
Virginia, the District of Columbia , and the city of Toledo, Ohio,
excluding managers , staff managers , agencies' service representatives,
office supervisors, assistant office supervisors , clerks, persons employed
in a supervisory capacity , and all other supervisors as defined in the Act.
173 NLRB No. 117
PRUDENTIAL INSURANCE CO.
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree and we find that Insurance
Workers International Union , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The sole issue raised in this proceeding is whether,
as alleged in the complaint, Respondent violated
Section 8(a)(5) of the Act by refusing on August 23,
and thereafter, to honor the Union's request for a list
containing the names and addresses of all bargaining
unit employees. A determination of this issue must of
necessity be based upon an examination of the
relevancy of the Union's request and the context in
which it was made.
As indicated by the stipulated facts, a bargaining
relationship has existed between the parties since
1959, when Respondent recognized the Union as the
exclusive bargaining representative of its district
insurance agents employed in 34 States, the District
of Columbia, and the city of Toledo, Ohio. During
the period in question, the parties have entered into
successive collective-bargaining agreements, the most
recent of which was executed on September 25,
1967, and is effective until September 29, 1969.
Although these collective-bargaining agreements have
provided for the checkoff of union dues, no union
security or maintenance of membership provisions
have been agreed upon by the parties.
The broad scope of the bargaining unit is best
demonstrated by the fact that the unit covers
approximately 16,795 district agents employed at
Respondent's 478 district offices and 419 detached
offices throughout the United States. Of the 16,795 unit
employees, approximately 9,702 have executed dues
checkoff authorizations in favor of the Union and are
considered by the parties to be members of the
Union. There are no checkoff authorizations in effect
at 221 of Respondent's offices, however, and it would
appear that the Union does not have any members
employed at these locations.
There is also evidence of considerable turnover
among unit employees. For example in the past year,
Respondent hired 4,315 new agents, while 4,241
3 The Union has also sought such information at various times since
1960.
4 In addition to the 9 , 702 employees on checkoff , the Union has the
names and addresses of 150 nonmember employees.
5 Standard Oil Company of California , Western Operations, Inc.,
166 NLRB No.45, enfd. 399 F.2d 639, (C A. 9) (Member Zagoria,
793
agents were either terminated or left Respondent's
employ voluntarily. During the same period, 2,455
new check-off authorizations were executed, while
2,352 were canceled as a result of transfers, termina-
tions, or voluntary revocations. With respect to
checkoff authorizations, the Respondent provides the
Union with a monthly statement of the names and
office location of employees who have been added to
or deleted from the Respondent's checkoff authonza-
tion list, and in addition Respondent supplies the
Union with a semiannual report listing the names and
location of all employees who have cancelled their
authorizations during this period.
The Union's August 23 request for the names and
addresses of all bargaining unit employees was pre-
sented to Respondent during the negotiations which
resulted in the current collective-bargaining agree-
ment.3 In making this request, the Union stated that
such information was necessary and relevant to the
performance and fulfillment of its duties and func-
tions as bargaining representative. In explanation of
its position, the Union advised Respondent that under
existing conditions it had no effective way of com-
municating with bargaining unit employees,' and as a
consequence, it was unable to advise employees
concerning contract benefits, or enlist their support in
policing and enforcing the collective-bargaining agree-
ment. The Union further took the position that the
information requested was particularly relevant at a
time when the parties were engaged in bargaining
negotiations because it would permit the Union to
poll unit employees as to their preferences and
priorities on various contract proposals. Respondent
has refused at all times since August 23, to supply the
information requested. It has asserted as a basis for its
refusal its policy of refusing to furnish employee lists
to any organization. It has also contended that the
information sought is not necessary and relevant for
purposes of bargaining, and that the collective-
bargaining agreement currently in force contains pro-
visions under which the Union is afforded reasonable
means of communication with unit employees.
On the basis of the evidence before us, we are
convinced that the information the Union requested
from Respondent was necessary and relevant to
collective bargaining and the administration of the
collective-bargaining agreement. As we have pre-
viously stated,' the statutory duty of fair representa-
tion requires that the bargaining agent extend repre-
sentation to nonunion unit employees as well as to
union members, and where as here, the bargaining
dissenting). Though dissenting in Standard Oil, supra, based on the
particular facts there presented , Member Zagoria joins his colleagues in
finding a violation in the instant case , since the relevancy of the
requested information for collective-bargaining purposes has clearly
been established.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative has no effective means of communicat-
ing with a substantial number of unit employees, it
cannot properly meet its statutory obligations under
the Act.
The Union's lack of any effective means of
communication with nonunion unit employees is
amply demonstrated in this record. As previously
mentioned, there is no union security or maintenance
of membership provision in the collective-bargaining
agreement in effect between Respondent and the
Union, and at the present time less than 60 percent of
the bargaining unit employees are members of the
Union. While a relatively low rate of union member-
ship in an established bargaining unit can result from
circumstances unrelated to difficulties in communica-
tion, the broad scope of the unit here involved and
the high turnover among unit employees lends sub-
stance to the Union's claim that the low rate of union
membership is a reflection of the difficulties it has
experienced in attempting to communicate with unit
employees. In this connection, we deem it significant
that the bargaining unit involved in this proceeding is
nationwide in coverage, including over 16,000 agents
employed at 897 locations. In addition, we are
mindful of the fact that in the course of its
operations, Respondent experiences a 25 percent
turnover per year among these unit employees.
While the foregoing demonstrates the inherent
problems encountered in communicating with em-
ployees in a unit of the size, scope, and fluctuations
involved here, such a situation does not in and of
itself establish that the bargaining agent has no
effective means of communicating with unit em-
ployees. Obviously, the parties may agree upon
various channels of communication with employees
which would obviate the necessity of obtaining from
the employer the names and home addresses of unit
employees. However, contrary to the contention of
Respondent, we do not agree that the parties' existing
collective-bargaining agreement provides adequate
channels of communication between the Union and
the bargaining unit employees. Under the terms of
this agreement, the Union is permitted to establish a
grievance committee in each of Respondent's offices.
Also under the contract, the Union has been granted
the right to post certain notices on office bulletin
boards made available for this purpose. -However,
neither the grievance procedures nor the posting
provisions allow the Union to communicate generally
6 At 221 of Respondent 's offices the Union has no grievance
committee , apparently because the Union has no members employed at
these locations.
7 At 335 of Respondent 's offices no union notices are posted,
apparently because few , if any , members are employed at these
locations
8 As a general rule, agents are required to report to their offices only
for meetings which are conducted on Tuesday and Friday mornings
9 In the past , the Union has made infrequent attempts at handbilling
outside Respondent 's offices which have proved to be unsuccessful
with unit employees. There is no contractual authori-
zation for contact between the grievance committee
and employees, except in those instances where the
processing of a grievance is involved.' Likewise,
although the Union has been granted posting rights,
the collective-bargaining agreement limits such
posting to announcements of general interest to its
members. The Union is expressly prohibited from
using the bulletin boards to distribute materials of
any kind, and the Respondent reserves the right to
remove any materials from the Union bulletin boards
which are not authorized under the terms of the
contract.7
It is also quite apparent that the Union does not
have reasonable access to unit employees at the place
of their employment. The nature of an agent's duties
is such that only a very small percentage of his time is
spent in the office.a Moreover under Article XIX of
the collective-bargaining agreement, the Union is
expressly prohibited from soliciting for union mem-
bership; collecting dues; distributing union material,
circulars, or literature of any kind; or conducting
other union business or activities in Respondent's
offices.' These circumstances lead us to conclude that
any effective communications between the Union and
the unit employees must of necessity be conducted, if
at all, at places other than Respondent's offices, and
that due to the size and geographic scope of the unit,
communications by mail to employees at their
homes' 0 may very well be the only feasible means avail-
able for effecting such contact. In any event, it was the
lack of an effective means of communication with
employees which prompted the Union to request that
Respondent supply the names and home addresses of
all bargaining unit employees. In making this request,
the Union indicated to Respondent the reasons it
considered this information necessary, and the pur-
poses for which the information would be utilized. In
substance, the Union advised Respondent it intended
to use this information in order to solicit the
employees' views on contract proposals and pref-
erences, inform the employees concerning contract
benefits, and encourage employee participation in the
policing and enforcing of the collective-bargaining
agreement. Certainly such purposes must be con-
sidered relevant to collective bargaining and to the
administration of the collective-bargaining agree-
ment. 1 1
Accordingly, in view of the foregoing and the
10 Article XIX of the collective-bargaining agreement would seem-
ingly bar union mailings to employees at their offices, and due to this
prohibition , little significance can be given to the fact that Respondent
supplies the Union with the office addresses of those employees who
have effected changes in their checkoff authorization.
11 While we do not dispute the fact that the Union may also use the
information obtained for the purpose of recruiting new members , this in
no way detracts from our finding that the information is necessary and
relevant for the purposes of collective bargaining and the administration
of the collective-bargaining agreement
PRUDENTIAL
entire record, we find that Respondent violated
Section 8(a)(5) and (1) of the Act by refusing on
August 27, and thereafter, to furnish the Union with
a list of the names and addresses of all bargaining unit
employees. 12
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it cease
and desist therefrom, and take certain affirmative
action deemed necessary to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
1. Prudential Insurance Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Insurance Workers International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All district agents employed or hereafter to be
employed by Respondent in districts whose district
offices are located in the States of Alabama, Cali-
fornia, Colorado, Connecticut, Delaware, Florida,
Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Michigan,
Missouri, Nebraska, New Hampshire, New Jersey,
New York, North Carolina, Oklahoma, Oregon, Penn-
sylvania, Rhode Island, South Carolina, Tennessee,
Utah, Vermont, Virginia, Washington, and West Vir-
ginia , the District of Columbia, and the city of
Toledo, Ohio, excluding managers , staff managers,
agencies ' service representatives, office supervisors,
assistant office supervisors, clerks, persons employed
in a supervisory capacity, and all other supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
4. Since 1959, and continuing to date, the above-
named labor organization has been and is the bar-
gaining representative of all employees in the afore-
said appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about August 27, 1967, and
at all times thereafter, to furnish the above-named
organization, upon request, a list of the names and
12 The Charging Party contends that in addition to the initial list of
names and addresses of unit employees , Respondent should be required
twice-monthly to notify the Union as to any changes which have
occurred in the list The Charging Party argues that such supplemental
information is essential due to rapid turnover among Respondent's
employees Although Respondent has not taken a specific position on
this question , we note that with respect to checkoff authorizations
which involve a similar problem , the parties have seemingly reached a
INSURANCE CO. 795
home addresses of all employees in the appropriate
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. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and has thereby engaged in, and
is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Prudential Insurance Company, its officers, agents,
successors, and assigns, shall take the action set forth
below
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Insurance Workers
International Union, AFL-CIO, by refusing to fur-
nish it, upon request, with the names and home
addresses of all employees in the following appropri-
ate unit:
All district agents employed or hereafter to be
employed by Respondent in districts whose district
offices are located in the States of Alabama,
California, Colorado, Connecticut, Delaware, Flor-
ida, Georgia, Illinois , Indiana, Iowa, Kansas, Ken-
tucky, Louisiana, Maine, Maryland, Massachusetts,
Michigan, Missouri, Nebraska, New Hampshire,
New Jersey, New York, North Carolina, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Caro-
lina, Tennessee, Utah, Vermont, Virginia, Washing-
ton, and West Virginia, the District of Columbia,
and the city of Toledo, Ohio, excluding managers,
staff managers, agencies ' service representatives,
office supervisors, assistant office supervisors,
clerks, persons employed in a supervisory capacity,
and all other supervisors as defined in the Act
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed to them by Section 7 of the Act.
satisfactory accommodation by agreeing that information of this nature
be made available on a monthly and semiannual basis Accordingly as
the record demonstrates the necessity for such supplemental informa-
tion , but fails to justify its production on a twice -monthly basis, we
shall require that Respondent notify the Union monthly as to any
changes which have occurred with respect to the names and addresses of
bargaining unit employees
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action:
(a) Bargain collectively with the above-named la-
bor organization by furnishing it, upon request, with
a list of the names and home addresses of all
employees in the appropriate unit, and each month
thereafter notify the said labor organization, in
writing, of any changes which have occurred with
respect to the names and home addresses of unit
employees.
(b) Post at all of its offices throughout the United
States, copies of the attached notice marked "Ap-
pendix".' 3 Copies of said notice, on forms provided
by the Regional Director for Region 5, after being
duly signed by Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 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 said notices are not
altered, defaced, or covered by any other material.
(c) Notify said Regional Director for Region 5, in
writing, within 10 days from the date of this Decision
and Order, what steps Respondent has taken to
comply herewith.
13 In the event that this Order is enforced by a decree of a United
States Court of Appeals, there shall be substituted for the words "a
Decision and Order " the words "a Decree of the United States Court of
Appeals Enforcing an Order "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act as
amended, we hereby notify our employees that*
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with Insurance
Workers International Union, AFL-CIO, by re-
fusing to furnish it, upon request, with the names
and home addresses of all employees in the
appropriate unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed to them by
Section 7 of the Act.
WE WILL bargain collectively with the above-
named labor organization by furnishing it, upon
request, with a list of the names and home
addresses of all employees in the appropriate unit,
and each month thereafter, notify the said labor
organization, in writing, of any changes which have
occurred with respect to the names and home
addresses of unit employees.
The appropriate unit is:
All district agents employed or hereafter to be
employed by Respondent in districts whose dis-
trict offices are located in the States of Alabama,
California, Colorado, Connecticut, Delaware,
Florida, Georgia , Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland, Massa-
chusetts, Michigan, Missouri, Nebraska, New
Hampshire, New Jersey, New York, North Caro-
lina, Oklahoma, Oregon, Pennsylvania, Rhode Is-
land, South Carolina, Tennessee, Utah, Vermont,
Virginia, Washington, and West Virginia, the Dis-
trict of Columbia, and the city of Toledo, Ohio,
excluding managers , staff managers, agencies' ser-
vice representatives, office supervisors, assistant
office supervisors, clerks, persons employed in a
supervisory capacity, and all other supervisors as
defined in the Act.
PRUDENTIAL 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.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 6th Floor, 707 North Calvert Street, Balti-
more, Maryland 21202 Telephone 301-962-2822.