Quaker City Life Insurance Co.

National Labor Relations Board - Board Decisions

Aug 8, 1962

138 N.L.R.B. 61 (N.L.R.B. 1962)

QUAKER CITY LIFE INSURANCE COMPANY 61
Quaker City Life Insurance Company and Insurance Workers
International Union , AFL-CIO. Case No. 5-CA-2117. August
8, 1962
DECISION AND ORDER
On May 28, 1962, Trial Examiner Robert E. Mullin issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent 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 Intermediate
Report. Thereafter, the Respondent and the, Charging Party filed
exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner except as modified herein.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Quaker City Life
Insurance Company, Alexandria, Virginia, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Insurance Workers In-
ternational Union, AFL-CIO, as the exclusive representative of its
employees in the appropriate unit described below :
All employees, including debit agents and office clerical em-
ployees at our office in Alexandria, Virginia, excluding the office
manager, guards, and supervisors as defined in the Act.
(b) Interfering with the efforts of the Insurance Workers Inter-
national 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 the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Insurance Workers
International Union, AFL-CIO, as the exclusive bargaining agent in
the appropriate unit, with respect to rates of pay, wages, hours of em-
' We find it unnecessary to pass upon the issue raised by the Trial Examiner's ruling in
receiving the stipulation , as more fully reported in the Intermediate Report For even
assuming that the stipulation was properly received in evidence , the facts therein do not
call for any change in our earlier unit determination
138 NLRB No. 5.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment, or other conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agreement.
(b) Post at its district office in Alexandria, Virginia, copies of the
notice attached hereto marked "Appendix." 2 Copies of said notice,
to be furnished by the Regional Director for the Fifth Region, shall,
after having been duly signed by an authorized representative of the
Respondent, 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 other material.
(c) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
MEMBERS RODGERS and LEEDOM, dissenting :
In the representation case which is the predicate for our colleagues'
decision in this case, we indicated our disagreement with our col-
leagues' unit finding. Quaker City Life Insurance Company, 134
NLRB 960. There we spelled out why we saw no valid reason for
departing from the principle set forth in the Metropolitan Life case
which the Board adopted in 1944. See Metropolitan Life Insurance
Company, 56 NLRB 1635. We adhere to this position. Consequently,
we would not find that Respondent violated the Act by refusing to
bargain with respect to what we consider to be an inappropriate unit.
2 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 "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with Insurance
Workers International Union, AFL-CIO, as the exclusive repre-
sentative of all the employees in the bargaining unit described
below, with respect to rates of pay, wages, hours of employment,
or other conditions of employment, and, if an agreement is
reached, embody it in a signed contract. The bargaining unit is :
All employees, including debit agents and office clerical
employees at our office in Alexandria, Virginia, excluding
the office manager, guards, and supervisors as defined in the
Act.
QUAKER CITY LIFE INSURANCE COMPANY 63
WE WILL NOT interfere with the efforts of Insurance Workers
International Union, AFL-CIO, to negotiate for or represent the
employees in the appropriate bargaining unit.
QUAKER CITY LIFE INSURANCE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional
Office, 707 N. Calvert Street, 6th Floor, Baltimore, Maryland, Tele-
phone Number, Plaza 2-8460, Extension 2100, if they have any ques-
tion concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the Labor Management Relations
Act of 1946, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act, was
heard in Washington, D.C., on April 16, 1962, pursuant to due notice to all parties.
The complaint, issued on March 19, 1962, by the General Counsel of the National
Labor Relations Board, and based on charges duly filed and served,' alleged that
the Respondent had engaged in unfair labor practices proscribed by Section 8(a) (5)
and (1) of the Act. In its answer, duly filed, the Respondent conceded certain facts
with respect to its business operations but denied the commission of any unfair labor
practices.
All parties were represented at the hearing by counsel and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, to introduce relevant
evidence, and to argue orally. Oral argument was waived. On May 16, 1962, able
and comprehensive briefs were submitted by counsel for the Charging Party and
for the Respondent. These have been fully considered.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation, with its main office in Philadelphia,
is engaged in the business of selling life, accident, health, and hospitalization insurance
in 16 States, including the Commonwealths of Pennsylvania and Virginia and the
District of Columbia. Among its numerous offices, the Respondent maintains a
district office in Alexandria, Virginia. It is at the latter location that the dispute
involved in the instant case arose. In the course of a representative 12-month pe-
riod, the Respondent derived in excess of $1,000,000 from its business operations,
and during that period of time received payments of insurance premiums in excess
of $50,000 at its principal office from points outside the Commonwealth of Penn-
sylvania. Upon the foregoing facts, the Respondent concedes, and I find, that Quaker
City Life Insurance Company is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Insurance Workers International Union , AFL-CIO (herein called Union), is a
labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
Upon a petition for certification, filed by the Union in Case No. 5-RC-3344, and
after a hearing held on June 23, 1961, the Board, on December 5, 1961, issued a
1 The charge was filed on March 9, 1962.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision and Direction of Election a in which it directed an election in a unit con-
sisting of all employees, including debit agents and office clerical employees at the
Respondent's office in Alexandria, Virginia, excluding the office manager, guards,
and supervisors, the unit found by the Board to be appropriate, and which I likewise
find to be appropriate, for the purposes of collective bargaining. On January 4,
1962, in an election by secret ballot conducted under the supervision of the Regional
Director for the Fifth Region, a majority of the employees selected the Union as
their representative. No objections having been filed to the election or to its conduct,
on January 15, 1962, the Board certified the Union as the bargaining representative
of the employees in the unit heretofore mentioned. I now find that at all times since
the latter date, the Union has been, by virtue of Section 9(a) of the Act, the exclusive
representative of all employees in the aforesaid unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours, and other conditions of
employment.
On January 17, 1962, the Union, by letter, requested the Employer to bargain
collectively with it as the exclusive representative of the employees in the unit found
appropriate above, and asked that a meeting for this purpose be held at an early
date. After an exchange of correspondence between the parties, on March 7, 1962,
the Respondent notified the Union that it would refuse to grant recognition on the
ground that the Board's unit determination was invalid.
At the hearing in the instant proceeding, none of the parties called any witnesses.
The Respondent, however, offered in evidence a stipulation, signed by all parties,
as to certain facts with respect to organizational efforts by the Union in two other
Virginia offices of the Respondent and as to a 1953 election in a statewide unit which
was lost by a predecessor to the Charging Union. The General Counsel and the
Charging Party, while conceding the accuracy of the factual data set out in the
foregoing stipulation, objected to its admissibility on the ground that the issue in-
volved had already been litigated and that, in any event, the additional evidence
was irrelevant. The Respondent urged, in support of its offer, that the matter covered
in the stipulation was newly discovered after the representation hearing. In addition,
counsel for the Respondent argued that certain matters which might have been de-
veloped at the representation hearing were not brought forward then because at that
time the Board policy relative to appropriate units in the insurance industry was that
set forth in Metropolitan Life Insurance Company, 56 NLRB 1635, and that the
subsequent Board decision in Quaker City Life represented the first departure from
that rule since 1944.
It is, of course, well established that there can be no relitigation at the unfair
labor practice hearing of matters once litigated at the representation hearing.
Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146, 157-158. N.L.R.B. v.
West Kentucky Coal Company, 152 F. 2d 198, 200-201 (C.A. 6), cert. denied 328
U.S. 866. This prohibition on the introduction of evidence at the second hearing,
however, does not apply to evidence which was newly discovered or unavailable to
the employer at the time of the representation proceeding. Clarostat Mfg. Co., Inc.,
107 NLRB 775, footnote 1. It would also appear that in circumstances such as
those presented by the instant case, where the Board policy on a unit question is
changed or modified subsequent to the representation hearing, an opportunity may
be afforded the party relying on the earlier rule to introduce any further evidence
which application of the new rule suggests. Normally, this would be by motion
to the Board, prior to the representation decision. Here, however, the new rule
in question was announced in the very representation matter that is now in issue.
Other than by a motion to the Board for reconsideration of its decision in the
representation case, the Respondent can offer such evidence only at the unfair labor
practice hearing. At the instant hearing, the Trial Examiner overruled the objections
of the General Counsel and the Charging Party and received the aforesaid stipula-
tion for whatever consideration the Board may wish to accord it upon an appeal
from this report. On the other hand, and in any event, at this stage of the pro-
ceeding, the Board's earlier unit decision represents the law of the case and is, of
course, binding upon the Trial Examiner. Esquire, Inc. (Coronet Instructional
Films Division), 109 NLRB 530, 539, enfd., 222 F. 2d 253 (C A. 7); The Baker and
Taylor Co,, 109 NLRB 245, 246.
In accordance with the Board determination in the representation case, I find that
all employees, including debit agents and office clerical employees at the Respond-
ent's office in Alexandria, Virginia, excluding the office manager, guards, and super-
visors as defined in the Act, constitute a unit appropriate for the purposes of
11 Quaker City Life Insurance Company, 134 NLRB 960
QUAKER CITY LIFE INSURANCE COMPANY 65
collective bargaining within the meaning of Section 9(b) of the Act. The Employer,
having declined the Union's request to bargain in the certified unit on March 7, 1962,
I find that on that date and at all times thereafter the Employer has refused to
bargain collectively with the Union as the exclusive representative of its employees
in an appropriate unit and has thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations described in section I, above, have a, close, intimate,
and substantial 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 unfair labor practices by
refusing to bargain collectively with the Union as the exclusive representative of
its employees in an appropriate unit, I will recommend that the Respondent, upon
request, bargain collectively with the Union .3
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. All employees, including debit agents and office clerical employees at the
Respondent's office in Alexandria, Virginia, excluding the office manager, guards,
and supervisors as defined in the Act, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
3. At all times since January 4, 1962, the Union has been the exclusive repre-
sentative of all employees in the appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive representa-
tive of the employees in the appropriate unit on March 7, 1962, and thereafter, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
5. By said acts the Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
In its brief, the Union requests that the proposed remedial order embody such provi-
sions as will require the Respondent to restore the situation to what it would have been
had there been no violation and accord to the employees any advantage or benefits of
which they have been deprived To that end, the Union asks that the Respondent be
directed to comply with the terms of the collective-bargaining contract which would likely
have been executed, as of the time it would have been executed The Union cites no
authority for this position, but it develops an able argument in that connection, based
on the Board's broad powers to fashion remedial orders that will effectuate the policies
of the Act. If, in the present case, there had been some bargaining to a contract, such a
remedial provision might be warranted. Here, however, where there was no bargaining,
the relief sought by the Union in this connection would appear to be based on elements
too speculative and conjectural for incorporation in the requirements of an order. For
that reason, I shall not recommend such a provision.