The General Accident, Fire and Life Assurance Corp., Ltd.

National Labor Relations Board - Board Decisions

Feb 19, 1968

169 N.L.R.B. 937 (N.L.R.B. 1968)

THE GENERAL ACCIDENT, FIRE AND LIFE 937
The General Accident, Fire and Life Assurance Cor-
poration , Ltd. and Teamsters Local Union No.
122, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case I-CA-6057
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
February 19, 1968
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, JENKINS, AND
ZAGORIA
On December 12, 1967, Trial Examiner Charles
W. Schneider issued his Decision in the above-enti-
tled proceeding, finding that Respondent had en-
gaged 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 and a supporting brief.
The National Labor Relations Board has con-
sidered the Trial Examiner's Decision, the excep-
tions and brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner. I
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
Recommended Order of the Trial Examiner, and
orders that Respondent, General Accident, Fire
and Life Assurance Corporation, Ltd., Boston,
Massachusetts, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.2
[By order of September 18, 1968, the Board
vacated the Certification of Representative issued
in Case i-RC-9202 on April 28, 1967, as corrected
on June 30, 1967; dismissed the petition for Certifi-
cation of Representative filed in Case 1-RC-9202
on September 21, 1966; and dismissed this com-
plaint in Case 1-CA-6057 which issued on Sep-
tember 15, 1967.]
' The record in the representation proceeding indicates that Respond-
ent made a conditional request for a hearing in the event the Board dis-
agreed with the legal basis on which it excepted to the Regional Director's
findings . In considering the Respondent 's exceptions in the representation
proceeding , the Board assumed the version of the facts most favorable to
the Respondent's position , but nevertheless concluded that it raised no
material issues warranting reversal of the Regional Director ' s findings and
recommendations A hearing was therefore unnecessary . C£ Baumritter
v N L R.B., 386 F.2d 117 (C A. 1), enfg. 164 NLRB 297.
2 Delete from paragraph 2(b) of the Trial Examiner 's Recommended
Order that part thereof which reads "to be furnished " and substitute
therefor "on forms provided . . "
CHARLES W. SCHNEIDER, Trial Examiner: Upon peti-
tion for certification as collective-bargaining representa-
tive filed by Teamsters Local Union No. 122, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
the Union, the Regional Director for Region 1 of the
Board on October 13, 1966, approved a stipulation for
certification upon consent election executed by the
General Accident, Fire and Life Assurance Corporation,
Ltd., Boston, Mass., herein called the Respondent, and
by the Union. The appropriate bargaining unit was stipu-
lated to be the unit set out hereinafter.
Pursuant to the stipulation, an election by secret ballot
was conducted on November 9, 1966, under the direction
and supervision of said Regional Director. There were
approximately 11 eligible voters, 11 cast ballots, of which
6 were for, and 5 against the Union. No ballots were chal-
lenged. On November 17, 1966, the Respondent filed
timely objections to the conduct of the election alleging:
(1) that the election was not a free expression of the will
of the employees, and (2) that the Union had interfered
with the election by certain described conduct. The Re-
gional Director of Region 1 conducted an investigation
and on December 21, 1966, issued his report on objec-
tions in which he recommended to the Board that the ob-
jections be overruled in their entirety and that the Union
be certified as the collective-bargaining representative in
the appropriate unit. On January 16, 1967, the Respond-
ent filed timely exceptions to the report on objections
and on January 17 an errata thereto. On April 28, 1967,
the Board issued its decision and certification of
representative in which it found that the Respondent's ex-
ceptions raised "no material or substantial issues of fact
or law which would warrant reversal of the Regional
Director's findings and recommendations." On June 30,
1967, the Board issued an order correcting decision and
certification of representative, in which it struck from the
April 28, 1967, decision and certification of representa-
tive an incorrectly worded unit description and sub-
stituted therefor the wording of the appropri ate unit.
The Complaint Case
On or about August 2, 1967, the Union requested the
Respondent to bargain collectively in the appropriate unit
and on or about August 8, 1967 the Respondent refused
the request. On August 21, 1967, the Union filed the un-
fair labor practice charge involved in the instant case, al-
leging the Respondent's refusal to bargain.
On September 15, 1967, counsel for the General
Counsel, by the Regional Director for Region 1, issued a
complaint alleging that the Respondent had committed
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act by refusing to bargain with the Union upon
request. In due course the Respondent filed its answer to
the complaint in which certain allegations of the com-
plaint were admitted, and others denied.
I Administrative or official notice is taken of the representation
proceeding, Case 1-RC-9202 See Section 9(d) of the National Labor
Relations Act
169 NLRB No. 131
93 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answer the Respondent admitted most of the
material allegations of the complaint including the ju-
risdictional allegations, the appropriateness of the bar-
gaining unit, the fact of the election, the certification, the
Union's request to bargain and the Respondent's refusal.
However, the answer averred that the election was in-
valid and of no legal effect under Section 9(a) of the Act,
in that the Regional Director erred in his conclusion that
the Union's representations in connection with the elec-
tion were insufficient to warrant setting aside the election.
The answer also stated that Respondent's refusal to bar-
gain collectively with the Union is for the sole and ex-
press purpose of securing judicial review of that action of
the Regional Director. By way of further answer the
Respondent asserted that its rights were prejudiced by
the Board's denial of a hearing on the objections since
substantial and material issues of fact were present 2
On October 12, 1967, counsel for the General Counsel
filed a motion for judgment on the pleadings contending
that facts of official record establish the allegations of the
complaint as a matter of law, and that therefore there is
no necessity for a hearing on the issues raised by the com-
plaint.
On October 16, 1967, I issued an order to show cause
on the motion for judgment on the pleadings in which the
parties were directed to show cause on or before
November 3, 1967, as to whether the motion for
judgment on the pleadings should be granted. On
November 2, 1967, Respondent filed a response to
General Counsel's motion for judgment on the pleadings
and order to show cause wherein the Respondent moved
that the Trial Examiner deny General Counsel's motion
and dismiss the complaint in its entirety for failure of the
General Counsel to establish a violation of the Act.
Ruling on Motion for Judgment on the Pleadings
The Respondent contends that the election and certifi-
cation are invalid and that it is therefore under no legal
obligation to 'meet with and to bargain with the Union.
However , it is clear that all material issues of fact and law
in this regard have been decided by the Board. The
Respondent also contends, citing N.L.R.B. v. KVP
Sutherland Paper Company , 356 F.2d 671 (C.A. 6), and
Leedom v. Kyne, 358 U .S. 184, that granting the motion
for judgment on the pleadings would be violative of the
provision in Section 10(b) of the Act to the effect that
"the person so complained of shall have the right ... to
give testimony at the place and time fixed in the com-
plaint." I do not find this proposition supported.
The questions of the validity of the election , the merit
of the Respondent's objections to it, and whether the
Union should be certified as the collective-bargaining
representative were decided by the Board in the represen-
tation proceeding. It is established Board policy, in the
absence of newly discovered or previously unavailable
evidence or special circumstances not to permit litigation
before a Trial Examiner in a complaint case of issues
which were or could have been litigated in a prior related
representation proceeding.3
2 1 find no indication in the record before me that in the representation
proceeding the Respondent requested the Board for a hearing on its objec-
tions, or that the Board demed one.
3 N L.R.B v Macomb Pottery Company, 376 F.2d 450 (C A 7);
Howard Johnson Company, 164 NLRB 801 , Metropolitan Life In-
No newly discovered or previously unavailable
evidence is offered here by the Respondent, nor has it as-
serted the existence of any special circumstances war-
ranting reexamination of the Board's determinations. The
request of the Union to bargain and the Respondent's
refusal to bargain are admitted. It being established that
the Union is the certified bargaining representative, there
are no issues litigable before me or to be resolved by hear-
ing. Neither the Sixth Circuit Court's opinion in KVP
Sutherland Paper Company nor that of the United States
Supreme Court in Leedom v. Kyne are authority to the
contrary. Where there are no material issues to be
resolved there is no requirement for an evidential hearing
and summary judgment or judgment on the pleadings is
appropriate. The Sixth Circuit Court recently and specifi-
cally rejected the Respondent's present contention in the
case of N.L.R.B. v. Tennessee Packers, Inc., 379 F.2d
172, 179, 180 (C.A. 6). The court there said:
Respondent also claims that it was unlawfully de-
nied a hearing on these same issues in the unfair labor
practice charge under direct review herein . Section
160(b), Title 29 U.S. C. provides:
.. The person so complained of shall have
the right to file an answer to the original or
amended complaint and to appear in person or
otherwise and give testimony at the place and
time fixed in the complaint."
This requirement , respondent argues, has not been
met because it was not permitted to relitigate its ob-
jections previously considered by the Board in the
certification proceeding . However, it is a well
established principle of law that the Board is bound
by its own prior determinations in representation
proceedings, and is not required to grant a hearing on
representational issues ancillary to an unfair labor
practice charge, unless the party requesting such a
hearing has some newly discovered evidence.
Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S.
146, rehearing den., 313 U.S. 599; N.L.R.B. v.
National Survey Service, Inc., [361 F.2d 199 (C.A.
7)]; N.L.R.B. v. B.H. Hadley, Inc., 322 F.2d 281
(C.A. 9). A party , in the absence of newly discovered
evidence, is entitled to only one opportunity to
question the Board 's certification procedures. To
require that the Board reopen-and reconsider a
matter that was subject to prior consideration would
necessarily prolong the controversy , and prevent the
orderly settlement of labor disputes. Not having
presented any newly discovered evidence , the Board
was not required , in the present unfair labor practice
proceedings , to grant respondent a hearing on its ob-
jections to the certification procedures.
To substantially the same effect is N.L .R.B. v.
Worcester Woolen Mills Corp., 170 F.2d 13, 16 (C. A. 1),
where the court said:
... an issue covered and decided in unit proceedings
cannot as of right be relitigated in a subsequent unfair
surance Company, 163 NLRB 579 See Pittsburgh Plate Glass Co. V
N L R B, 313 U S 146, 162 (1941), Rules and Regulations , National
Labor Relations Board, Series 8 , as revised January 1, 1965, Sec
102.67(f)
THE GENERAL ACCIDENT, FIRE AND LIFE
labor practice proceeding . If such an issue is to be
relitigated in a subsequent unfair labor practice
proceeding once it has been canvassed in a certifica-
tion proceeding it is up to the party desiring to do so
to indicate in some affirmative way that the evidence
offered is more than cumulative . Otherwise a single
trial of the issue is enough.
See Neuhoff Brothers Packers, Inc. v. N.L.R .B., 362
F.2d 611 (C.A. 5); Macomb Pottery Company, 157
NLRB 1616, enfd . 376 F.2d 450 (C.A. 7). And see
N.L.R.B . v. Bata Shoe Co., 377 F.2d 821 ,826 (C.A. 4);
Krieger-Ragsdale & Company, Inc., 159 NLRB 490 and
cases there cited , enfd . 379 F.2d 517 (C.A. 7); N.L.R.B.
v. Lawrence Typographical Union, 376 F.2d 643 (C.A.
10); N.L.R.B. v. Air Control Products of St. Petersburg,
Inc., 335 F.2d 245 (C.A. 5, 1964). See also E-Z Davies
Chevrolet, 161 NLRB 1380 ; Union Brothers Inc., 162
NLRB 1505 and cases there cited ; Metropolitan Life In-
surance Co., 163 NLRB 579; Red-More Corporation
d/b/a Disco Fair, 164 NLRB 638; Harry T. Campbell
Sons' Corporation , 164 NLRB 247; Ore-Ida Foods, Inc.,
164 NLRB 438 ; Clement-Blythe Companies , 168 NLRB
There being no unresolved issues requiring an
evidential hearing the motion of the General Counsel for
judgment on the pleadings is granted.
On the basis of the record I make the following further
FINDINGS
1. THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times relevant herein
a corporation duly organized under and existing by virtue
of the laws of the United Kingdom and is licensed to do
business in the 50 States of the United States and the Dis-
trict of Columbia.
At all times herein mentioned Respondent has had its
lead office in Perth, Scotland, and has maintained its prin-
cipal office and place of business in the United States at
Philadelphia, Pennsylvania, and has maintained a branch
office at 50 Congress Street in the City of Boston, County
of Suffolk, and Commonwealth of Massachusetts (herein
called the Boston office), and is now and continuously has
been engaged at said Boston office in the business of
selling insurance and the adjustment of personal injury
and property damage claims.
Respondent, in the course and conduct of its business,
annually transmits from its Boston office insurance
premiums valued in excess of $50,000 directly to points
outside the Commonwealth of Massachusetts.
Respondent is and has been engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The following of Respondent constitute a unit ap-
propriate for the purpose of collective bargaining within
the meaning of Section 2(5) of the Act:
4 The purpose of this provision is to ensure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law. See Mar-Jac Poultry Company,
939
All claim adjusters and appraisers employed by the
Employer at its Boston, Massachusetts, branch of-
fice, including the supervising adjuster, but excluding
all other employees, office clerical employees,
professional employees, guards, claim manager,
claim supervisors, and all other supervisors as
defined in the Act.
On November 9, 1966, a majority of Respondent's em-
ployees in the said unit selected the Union as their collec-
tive-bargaining representative in a secret-ballot election
conducted under the supervision of the Regional Director
for Region 1 of the National Labor Relations Board in
Case 1-RC-9202.
On April 28, 1967, the National Labor Relations
Board, after consideration of Respondent's objections to
the above-described election, certified the Union as the
exclusive collective-bargaining agent of the employees in
the said unit.
At all times since on or about April 28, 1967, and con-
tinuously to the present, the Union has been the represen-
tative, for the purpose of collective bargaining, of the em-
ployees in the said unit, and, by virtue of Section 9(a) of
the Act, has been and is now the exclusive representative
of all the employees in the said unit for the purpose of col-
lective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
On or about August 2, 1967, the Union requested the
Respondent to bargain collectively with it with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment, as the collective-
bargaining representative of Respondent's employees in
the appropriate unit.
On or about August 8, 1967, Respondent refused and
continues to refuse, to recognize and bargain with the
Union as such representative.
By thus refusing to recognize and bargain with the
Union the Respondent has refused to bargain collectively
in violation of Section 8(a)(5) of the Act and has inter-
fered with, restrained, and coerced its employees in viola-
tion of Section 8(a)(1) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the
entire record in the case, I recommend that the Board
issue the following:
ORDER
A. For purposes of determining the effective period of
the certification the initial year of certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit.4
B. The General Accident, Fire and Life Assurance
Corporation, Ltd., Boston, Massachusetts, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Teamsters
Local Union No. 122, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive collective-bargaining represen-
tative of the employees in the following appropriate unit:
Inc, 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140
NLRB 226 , 229, 328 F .2d 600 (C A. 5); Burnett Consti uction Company,
149 NLRB 1419 , 1421, 350 F 2d 57 (C.A. 10).
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All claim adjusters and appraisers employed by the
Employer at its Boston , Massachusetts , branch of-
fice, including the supervising adjuster , but excluding
all other employees , office clerical employees,
professional employees, guards , claim manager,
claim supervisors , and all other supervisors as
defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in said ap-
propriate unit as the exclusive collective -bargaining
representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request , bargain collectively with Teamsters
Local Union No. 122, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of
America, as the exclusive representative of the em-
ployees in the appropriate unit described above, with
respect to rates of pay, wages , hours of work , and other
terms and conditions of employment , and embody in a
signed agreement any understanding reached.
(b) Post at its Boston, Massachusetts , office copies of
the attached notice marked "Appendix ."5 Copies of said
notice , on forms provided by the Regional Director for
Region 1, after being duly signed by an authorized
representative of the Respondent , shall be posted by the
Respondent 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 1, in writ-
ing, within 20 days from the receipt of this Decision, what
steps it has taken to comply herewith.6
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT refuse to bargain collectively with
Teamsters Local Union No. 122 , International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, as the exclu-
sive collective-bargaining representative of all the
following employees:
All claim adjusters and appraisers employed
at our Boston, Massachusetts , branch office, in-
cluding the supervising adjuster , but excluding
all other employees , office clerical employees,
professional employees, guards, claim manager,
claim supervisors , and all other supervisors as
defined in the Act.
WE WILL NOT interfere with the efforts of said
Union to negotiate for or represent the employees in
the appropriate bargaining unit as exclusive collec-
tive-bargaining representative.
WE WILL bargain collectively with the Union as
exclusive bargaining representative of the employees
in the appropriate unit and if an understanding is
reached we will sign a contract with the Union.
THE GENERAL ACCIDENT,
FIRE AND LIFE ASSURANCE
CORPORATION, LTD.
(Employer)
5 In the event that 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 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
8 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 1 , in writing , within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith"
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, 20th Floor,
John F. Kennedy Federal Building, Cambridge and New
Sudbury Streets , Boston , Massachusetts 02203,
Telephone 223-3353.