United Insurance Co. of America

National Labor Relations Board - Board Decisions

Dec 30, 1966

162 N.L.R.B. 439 (N.L.R.B. 1966)

UNITED INSURANCE CO. OF AMERICA 439
United Insurance Company of America and Insurance Workers
International Union, AFL-CIO. Case 4-CA-3627. December30,
1966
DECISION AND ORDER
On April 22, 1966, Trial Examiner Harold X. Summers issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting brief;1 the Charg-
ing Party filed exceptions to the Trial Examiner's. Decision; and the
General Counsel filed a brief in answer to Respondent's exceptions
and brief.
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire rec-
ord in this case, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.2
[The Board adopted the Trial Examiner's Recommended Order.]
1 The Respondent has requested oral argument . Because, in our opinion , the record and
briets adequately set forth the issues and positions of the parties, this request is hereby
denied.
While we agree with the Tiial Examiner that the Respondent ' s booklet regarding its
savings and profit -sharing pension fund states that the Respondent shares with agents the
cost of life insurance and family hospital and surgical plans , unlike the Trial Examiner, we
deem it unnecessary to decide whether the booklet also manifests that the Respondent
shares the cost of an "income protection" plan.
We hereby correct the following error in the sentence preceding the indicator for footnote
56 in the Trial Examiner 's Decision This sentence should read in part 11 . . in the 1957
court proceeding wherein Pennsylvania debit agents « ere found to be independent
contractors."
TRIAL EXAMINER'S DECISION
This case was heard upon the complaint 1 of the General Counsel of the National
Labor Relations Board (herein called the Board ), alleging that United Insurance
Company of America (herein referred to as Respondent , United , or the Company),
had engaged in and was engaging in unfair labor practices within the meaning of
Section 8(a)(1) and ( 5) of the National Labor Relations Act (herein called the
Act). Respondent's answer to the complaint admitted some of its allegations and
denied others , and it pleaded affirmatively ; in effect, it denied the commission of
any unfair labor practices . Pursuant to notice , a hearing was held before Trial
Examiner Harold X . Summers at Philadelphia , Pennsylvania , from October 25
1 The complaint was issued June 23, 1965 . The charge initiating the proceeding was filed
April 20, 1965.
162 NLRB No. 33.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through 29, 1965. All parties appeared at the hearing and were afforded full oppor-
tunity to examine and cross-examine witnesses, to argue orally, and to submit briefs.
Briefs filed by the General Counsel, Respondent, and the Charging Party have been
fully considered.
The sole issue in this case is whether the individuals on whose behalf the Charg-
ing Party seeks to bargain collectively-so-called debit agents-are employees or
are independent contractors.2
Upon the entire record of the case,3 including my evaluation of the reliability of
the witnesses based upon the evidence and my observation of their demeanor, I
make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent is, and has been at all times material herein, an Illinois corporation,
with its principal office located at Chicago, Illinois. Engaged in the sale of insur-
ance, it maintains offices in various States, including the Commonwealth of Penn-
sylvania. During the year preceding the issuance of the complaint in this matter,
Respondent, in the course and conduct of its business operations, received income,
consisting of insurance premiums, in excess of $1 million; of this, more than
$50,000 was derived from premiums which were collected within the Common-
wealth of Pennsylvania and remitted to points outside the Commonwealth.
Respondent, in its answer, denies that it is an "employer" within the meaning of
the Act. Presumably, this denial is based upon its contention that the debit agents
are not employees within the meaning of the Act. Saving this question for later
analysis, I note in the record, and I find, that certain individuals, patently employ-
ees, perform services for United: e.g., cashiers , claims employees, miscellaneous
clerical workers, and telephone operators 4
Respondent is an employer engaged in commerce within the meaning of the Act.
II. THE UNION
The Charging Party, Insurance Workers International Union, AFL-CIO ( herein
called the Union ), is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and setting
The instant case arises out of the Union's attempt to organize the Company's
Pennsylvania debit agents.
Throughout 48 States of the United States, including the Commonwealth of
Pennsylvania, United is engaged in the sale, issuance and servicing of life and of
health-and-accident insurance policies; in addition, acting on behalf of United Fire
Insurance Company of America,5 it sells and services fire insurance policies issued
by that company.
The territory in which United operates is broken up into divisions, each of which
is divided into districts. Divisional managers, headquartered within divisional lines,
3 All parties agree that this is the basic Issue. In addition, the Charging Party, but not
the General Counsel or Respondent, contends that the good faith of Respondent in calling
Into question once again (see Labor Relations History, infra), the status of the debit
agents is also an Issue. As will be seen, the instant case arises out of the desire of Respond-
ent, notice of which was conveyed to all other parties well before the inception of this
proceeding, to test the validity of the unit finding theretofore made by contending, as it
does here, that the debit agents are not employees . and the pleadings herein confine them-
selves to this issue (Moreover, a respondent's Insistence on a judicial test of a Board
action, of Itself, does not constitute unlawful motivation under the Act. Cf. Cumberland
Shoe Corporation, 156 NLRB 1103 )
3 I corrected a number of typographical errors in the transcript
4 Respondent also has district office managers and assistant managers In view of its
position that the debit agents with whom they deal are not employees, United does not
regard the managers and assistant managers as "supervisors," but it does regard them as
"employees [who] perform managerial functions "
5 United Fire (as it will be called herein), is a New York corporation. Its principal office
at New York City, it occupies space in the Chicago headquarters of United, for which space
it compensates United.
UNITED INSURANCE CO. OF AMERICA 441
are responsible for the affairs of their district offices; and each district office is
headed by a district manager who , with the help of a number of assistant managers,
oversees the district 's performance and, by means of reports to the home office and
contacts with his divisional manager, maintains liaison with company headquarters.
(A slight deviation is found in and around Philadelphia, Pennsylvania. There,
five district offices in the suburbs and five district offices housed at one location in
the city constitute a region headed by a regional manager-terms which, for all
purposes of this case , I find to be equatable with division and divisional manager,
respectively.) 6
The debit agents 7 are attached to one or another district office, groups of five or
six of them comprising the "staff" of an assistant manager. The composition of a
given assistant manager's staff is determined at the divisional (or, in the case of
Philadelphia , at the regional ), level; the district manager may make changes only
on a temporary basis.8
Finally, the district offices have cashiers and clerical employees.
Of some relevance in this matter is the fact that a number of the debit agents
involved were formerly debit agents of Quaker City Life Insurance Company
(herein called Quaker City). As of March 16, 1964, that organization and United
entered into an agreement whereunder United took over most of the former's
assets and assumed the responsibility for the former 's outstanding insurance poli-
cies.9 Thereupon , Quaker City's debit agents were notified that no further work
was available for them but that they-perhaps not all of them; this record lacks
details-would be permitted to sell insurance for United under terms offered by
United, provided they signified agreement within a reasonable time. A number of
such individuals-the number undisclosed in this record-accepted the offer and
became debit agents for United.
B. The unit; the Union's majority designation; the demand; the refusal
In the representation case-United Insurance Company of America, Case 4-RC-
6127-which is the genesis of the instant proceeding , the same parties as those who
are parties hereto entered into a stipulation for certification upon consent election,
providing, with an important reservation noted infra, that a unit appropriate for
bargaining purposes consisted of
All debit agents employed by [ Respondent ] at its districts in Pennsylvania
(Philadelphia, Upper Darby, Chester, Harrisburg , Reading, York, Hanover,
Pittsburgh, McKeesport, Greensburg , and Somerset ), excluding special agents,
inspectors , office clerical employees, professional employees , guards, managers,
assistant managers , and supervisor a defined in the Act.
The instant complaint alleges that the "employees" thus described constitute an
appropriate bargaining unit. Respondent , in its answer, denies that this is an appro-
priate bargaining unit , specifically averring that the debit agents in question are
independent contractors rather than employees . Further elucidating at the hearing,
Respondent made clear that the contention in the averment was the sole basis for
its denial-that it did not, for example , question the geographical grouping or the
specific job inclusions or exclusions.
6 It should be noted that , in offering testimony and counter - testimony herein, the parties
called only witnesses who, in their respective opinions, were in a position adequately and
representatively to convey the total picture of Respondent 's relevant operations. They
refrained from calling witnesses to testify as to the procedures followed in each and every
district office. Obviously , in an operation of this kind , one might find variations here and
there ; but-absent the point being specifically raised-I find that such variations are not
material ( I credit one witness' testimony to the effect that , basically , the Company operates
uniformly throughout the country ) Unless the contrary is indicated , my findings herein
may be deemed to be applicable throughout the district offices in Pennsylvania.
v Throughout the country 3,500 ; 300-plus in Pennsylvania
Agents may be transferred from one staff to another without advance notice to them
e It appears that , for operational purposes if not for all purposes . Quaker City ceased
to exist as of that day . None of the parties hereto contend that any part of this case depends
upon any claim of "successorship " of United to Quaker City, and I find it unnecessary to
decide the question-to which the parties devoted somewhat extended argument-of whether
there was a successorship , a merger , an acquisition, or something else
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the pleadings and the respective positions, stipulations, and con-
cessions of the parties at the instant hearing, and with an awareness the term "unit
appropriate for bargaining purposes" as used in the act contemplates that it be com-
prised of "employees," I find that, if debit agents are employees (a question I
reserve for disposition hereinbelow), the debit agents described above constitute an
appropriate bargaining unit within the meaning of the Act.io
In an election conducted in connection with the representation case above refer-
red to, held on November 18, 1964, the Union received the votes of a majority of
the debit agents involved and, on March 25, 1965, the Board certified the Union
as the bargaining agent of all of them. I find that, on and since November 18, 1964,
the Union had been and was designated by a majority of the debit agents.
By letter sent on or about April 1, 1965, and received by Respondent shortly
thereafter, the Union, through its Vice President Charles G. Heisel, expressed its
readiness to bargain over the working conditions of the debit agents, asked for
recognition forthwith, and requested the setting of a mutually agreeable time and
place for the commencement of negotiations. By letter of April 9, sent by company
counsel to union counsel, Respondent, reiterating and calling attention to the posi-
tion it had taken in the representation case-namely, that it did not regard debit
agents as employees-declined to bargain with the Union as requested. Thus-
assuming that the debit agents are employees-we have a request to bargain con-
cerning an appropriate unit and a refusal to accede to that request.
C. The status of the debit agents
1. Pertinent labor relations history
This is not the first occasion on which the status of United's debit agents has
been put into issue.
On May 11, 1954, in a consolidated proceeding initiated by petitions filed by a
predecessor of the Union and by a rival labor organization, the Board issued a
Decision, Order, and Direction of Election 11 in which, holding that the Pennsyl-
vania debit agents whose status was there put into issue were employees and not
independent contractors, it dismissed one of the petitions and, in connection with
the other, directed a statewide election among such agents. Prior to the holding of
the election, however, the second petition was withdrawn and the case was closed.
Late in 1956, the Union's predecessor filed a new petition for certification-
Case 4-RC-3194, hereinafter sometimes referred to as "the 1957 case [or proceed-
ing]"-covering the same debit agents. Pursuant to an agreement for consent election
(in which Respondent, for that case only, waived its right to raise the contention
that debit agents were not employees), an election and a rerun election were held,
as a result of which, on May 7, 1957, the Regional Director for Region 4 of
the Board certified the Union as the debit agents' bargaining agent. Thereafter,
United refused to bargain on the stated ground that the debit agents were inde-
pendent contractors and not employees, and an unfair labor practice proceeding
ensued. On a petition to review the first Board order.therein-an order to bargain,
in which the debit agents were held to be employees-the Court of Appeals for the
Seventh Circuit 12 held that the Trial Examiner (with the approval of the Board)
erred iri relying on Board findings of fact contained in the 1954 proceeding, and it
remanded the case for the current receipt and consideration of all relevant evidence
on the issue. Subsequently, a second hearing was held as an eventual result of which
the Trial Examiner issued a Second Supplemental Intermediate Report in which
he again concluded that the debit agents were employees and recommended that
the Board reissue its original bargaining order (now running to the Union rather
than to its predecessor); and the Board 13 adopted his findings, conclusions, and
recommendations. Once again, the case went to the circuit court; this time,14 the
10 In an effort to avoid anticipating my conclusion, I shall refer herein to the group in
question as "the debit agents" ; this term will be understood as comprised of all individuals
in the "unit" described
11 Reported at 108 NLRB 843, the proceeding has been referred to in the instant case
as "the 1954 case [or proceeding]."
12 In 272 F 2d 446 (1959).
13 At 132 NLRB 885
14 In 304 F.2d 86 (1962)
UNITED INSURANCE CO. OF AMERICA 443
court, concluding that the debit agents were independent contractors , granted
United's petition for review and denied the Board 's cross-petition for enforcement.15
(It should be noted that , in March 1964 , at the time of the transaction between
United and Quaker City noted earlier , the debit agents of the latter company were
represented , for collective-bargaining purposes , by the Union . At that time and for
some time before , the working conditions of such agents were and had been gov-
erned by collective -bargaining contracts between Quaker City and the Union.)
The question as to the status of Respondent 's debit agents was reraised in mid-
1964 upon the filing, by the Union , of a petition for certification (Case 5-RC-
4722) covering the Company's debit agents in and around Baltimore , Maryland.
United sought to test the validity of the certification of the Union issued by the
Board therein ; it declined to honor the certification because , it contended , the Balti-
more debit agents were not employees . In the ensuring unfair labor practice case,
the Board 16 rejected United 's contention and entered a bargaining order . The order
is now undergoing judicial review.17
The representation petition which is the foundation for the instant case was filed
late in 1964 . In that proceeding , United, having raised the issue of the debit agents'
status, entered into a stipulation for certification upon consent election , executed
also by the Union and approved by the Regional Director, which stipulation con-
tained the following paragraph 13:
By entering into this stipulation [United] does not waive its contention that the
debit agents . are independent contractors and not employees within the
meaning of the . . . Act. The parties to this stipulation recognize that the
agreement of [United ] not to raise this particular issue of the status of its
debit agents is limited to this representation proceeding, and that it will not be
precluded from raising such issue in any other proceeding, including but not
limited to, any unfair labor practice proceeding that may result from its refusal
to bargain with any organization certified pursuant to this stipulation.
Pursuant to the stipulation , an election among the debit agents was held on Novem-
ber 18, 1964, as a result of which, on March 25, 1965, the Board certified that the
Union had been designated by a majority of the "employees" in the affected "bar-
gaining unit " and that the Union was the bargaining representative of all such
"employees."
2. The job, described
The selling and servicing of so-called industrial insurance , both life and health-
and-accident , constitutes a major aspect of the Company's operations . Distinctive
15 Respondent urges that , on the basis of this decision , the principle of collates al
estoppel dictates that the instant complaint be dismissed. The argument runs as follows
The doctrine of res judicata is applicable to administrative proceedings ; the sole dif-
ference between res jadscata and collateral estoppel is that' the former involves the
same cause of action, the same parties, and the same'dispositive issue(s) whereas the
latter involves the last two factors only-and, in essence, the same principles of ap-
plicability are involved ; the parties and the issue-the status of the debit agents-here
are the same as those in the 1957 case, and the issue was there decided, by the Court of
Appeals for the Seventh Circuit, adversely to the position here taken by the General
Counsel. Granting, as I do, that the principles of res wdicata and of collateral estoppel
are applicable where there has been a judicial determination in an administrative pro-
ceeding and that the parties and the ultimate issue in the tv,o proceedings are identical,
I do not believe that the court's decision forecloses a decision on the merits herein. The
situation on which the court decision was based was 9 years old, at the time of the instant
hearing, and-all parties contend-changes had occurred in the interim I owe it to the
Board and the court to permit a fresh determination 'of the debit agents' status on the
merits. Respondent's motion to dismiss based on this ground is denied (I would also
reject, however, the Union's contention that, if either res ,ludicata or collateral estoppel
applies, I am bound to follow the Board's decision in the 1957 proceeding; I believe I
am entitled to assume that the Board would have adopted the court's decision as the law
of the case )
16 In 154 NLRB 38, issued on July 28, 1965
17As of the time of the instant hearing, petitions for review filed by the Union and by
the Company were pending in the District of Columbia and in the Seventh Circuit, re-
spectively. Since the close of the hearing, I have become administratively aware, sole
jurisdiction lies with the Seventh Circuit.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
features of this type of insurance are the facts that-due to limitations imposed by
State law and by the Company-the face values of such policies are relatively low
and that the premiums are payable, normally at the homes of policyholders, on a
weekly or monthly basis. These characteristics dictate that debit agents, a substan-
tial part of whose activities is devoted to the sale of these policies and to the col-
lection of their premiums, must spend a great deal of their working time within the
neighborhoods of their policyholders.
Each debit agent is attached to a "debit," an area in which he spends a major
part of his working time. Clearly, any discussion of the debit agents' duties and
responsibilities must begin with a treatment of the debit.
Speaking generally, a debit is an area containing the locations of a group of
Respondent's industrial insurance policyholders. These locations mainly mark the
residences of such holders, but the debits also include business establishments; the
evidence in this record indicates, and I find, that the addresses of some policyhold-
ers are business addresses and some premiums are collected at business addresses.
The sizes and shapes of debits vary greatly-for all this record reveals, there is no
"master map" on which existing debits, with hard and fast boundaries, are dis-
played-it appearing only that some are larger than others. An urban debit, for
example, can be quite compressed while an outlying debit might be comprised of a
rough 12- by 21-mile rectangle. The size and shape of a debit, I find-to the extent
it has any defined limits-are determined by the ability of a debit agent reasonably
to furnish comprehensive insurance services to the present and potential policy-
holders located in that debit.
I here find what is inherent in such a description: that, over a period of time-
since a debit's size and shape are a function of the assigned debit agent's personal
characteristics, the number of Respondent's customers, and the number of poten-
tial customers-debits grow, contract, and change their shapes as time passes
Add to this the fact that all the geographical territory within a debit is not exclu-
sively that of a given agent. Partly because of historical accident-e.g., the transaction
as a result of which many Quaker City agents came over to United but continued
to work in their old locations-and partly because of Respondent's policy-transfer
system (see infra), more than one debit agent may, and often do "work" the same
territory. Not unknown are instances in which four United debit agents serve policy-
holders living in the same building.
As a result, whatever may have been the original thrust, it appears that, now, the
term "debit" is more applicable to a logical cluster of existing and potential policy-
holders rather than to sharply defined geographical area. This idea is reflected in
the frequent use of the word "book" (short for "debit book" or "street book") as
a synonym for "debit." Thus viewed, the question of whether the Company or the
agent owns the debit-a question to which the parties devoted extended attention-
does not lend itself to relevant disposition.i$ I can only note that an agent may not
"sell" or "assign" his debit to another without the consent of the Company; that,
while, on occasion , departing debit agents have "taken" policyholders (to other
insurance companies ) with them, such practice may constitute a violation of a Penn-
sylvania statute against "twisting," and that, absent, termination of insurance policy
by Respondent or by the insured, the policy survives the termination of the rela-
tionship between Respondent and debit agent.
Depending upon the circumstances, there may be occasions upon which an agent
is himself transferred from one debit to another, but this is a deviation from the
normal . When a debit becomes "open," there is no system of "bidding" for that
debit by existing agents; United fills the vacancy by bringing in a new man . Agents
may be, and have been, transferred from one district office to another; but the
instances which, in this record, support this finding, are such as to indicate that the
changes resulted from a reorganization of district offices and that the agents involved
worked the same debits after the changes.
The relationship between Respondent and debit agent commences when agree-
ment is reached, between an authorized company representative and a prospective
agent, that the latter shall undertake to sell and to service United policies under the
terms and conditions set forth hereinbelow.
The Company, particularly through its district managers , is continuously engaged
in an active recruiting campaign. Whenever-a not infrequent occurrence-a debit
181 shall find hereinbelow that the physical debit book itself is furnished by Respondent
for the debit agent's use, that the list of policyholders contained in each debit book
belongs to Respondent, and that Respondent has the right, at all reasonable times, to
inspect the notations in the book
UNITED INSURANCE CO. OF AMERICA 445
is "open" (i.e., temporarily not covered by a debit agent), the word is spread in an
attempt to fill the gap.19 Prospects are interviewed, either by a district manager or
higher official, and are asked to fill out an application 20 Whatever other criteria
are utilized, a history of selling insurance has little weight; typically, the new debit
has no experience in the industry. If the prospect is sized up as a likely one, and if
he is willing, he becomes a United agent-trainee.
Under Pennsylvania law, the right of anyone to sell insurance for any insurance
company is conditioned upon his being licensed to do so by the Commonwealth, the
issuance of which license, in turn, is conditioned upon his passing an insurance
agents' examination administered by the Pennsylvania Department of Insurance; and
any arrangement between United and a hew debit agent carries with it the require-
ment that the latter obtain a license to sell for United. The early period, then, is
directed toward equipping the new agent with sufficient knowledge to pass the exam-
ination: training books or, other materials are made available, and appropriate
library books are recommended to him.21 The process of qualifying for a license can
consume any period from a few days upward.
Even before he is licensed, the on-job training of the new agent begins. Having
been assigned to an open debit and having'been attached to the staff of an assistant
manager, he spends his early weeks "on the street" in the company of his assistant
manager. The latter introduces him to policyholders on-the debit, acquaints him
with collection methods, and coaches him on sales approaches. As time passes, the
agent's own active participation in the debit work increases. Moreover, during this
training period he is expected (with the assistant manager's help), to file the weekly
reports which are filed by all agents-see infra; in addition, he must prepare an "A-
and-A" report-described infra-each week whereas it is required of established
agents but once each quarter. - '
The training period varies, consuming between several days and 5 or 6 weeks.
(Note that it is considered a training period, not a probationary period.) Finally,
w hen it is determined-by both the new man and his assistant manager-that he
needs no further help, he is left to his own devices.
Having completed his training period, the agent takes on the task of servicing his
debit. Among other things, he establishes a routine which, hopefully, will best serve
his purposes as an insurance salesman on his debit. His routine-i.e., the hours and
the days he spends on the street, in the district office, and at his home; the number
and frequency of his visits to policyholders, present and potential; and the sale
approach he utilizes-is established by him, in the light of what he considers to be
most desirable. It is an individual routine, differing from that of other of Respond-
ent's debt agents, and, except to the extent that what appears below may indicate
the contrary, the Company plays no part in its formation.
Most of a debit agent's work on his debit consists of collecting premiums on
existing policies. Typically, he approaches the household of a policyholder or a
family of policyholders, at intervals, for the purpose of collecting the premiums, the
timing of these approaches varying with the circumstances. (Although the premi-
ums on industrial insurance are payable either weekly or monthly, the payment of
such premiums on the "even date"-i.e., the due date only-is the exception rather
than the rule; the policyholder often makes an advance payment of a number of
premiums due.) The debit agent attempts to accommodate himself to the conven-
ience of the policyholders in this respect; hence, much of his collecting is done in
the evening.
The other aspect of the debit agent's job, while on his debit, is the procurement of
new business, either from present policyholders or potential customers. Although-
as is true of all salesmen,Lcollectors-the time during which a debit agent spends in
"selling" himself and his product cannot be isolated, the evidence indicates, and I
find, that the ratio of time spent in collecting premiums as opposed to that spent in
actively seeking new business is about 15 to 1.
United's debit agents are not limited to.selling policies on their own debits. Each
of them is licensed to sell policies for United throughout the Commonwealth of
10 One of the witnesses learned of an opening through his neighborhood lunchtime con-
tacts with a United assistant district manager. The services of the wife of another
witness were solicited by a district manager.
20 A form not in this record.
2i Persons already licensed to^ sell insurance in Pennsylvania need not retake an exam-
ination They need only procure a license to sell for United, a license issued by the Com-
monwealth upon the request of United.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pennsylvania, and, not infrequently, each makes a sale outside his own debit. Subse-
quently, the selling agent may or may not himself service such policies; details as
to transferring policies will be discussed infra.
(United's debit agents are not limited to selling insurance for that company. At
least 29-out of 300-plus in Pennsylvania-are licensed to sell insurance for one or
more insurance companies other than United. On occasion, some have sold such
policies. The only restriction laid down by United in this respect is that its debit
agents not be engaged in the sale of competing insurance policies. Nor are they
limited to the insurance business. The record contains testimony, which I credit, that
at least two Pennsylvania debit agents simultaneously engage in other operations;
one sells general merchandise on credit and makes collections thereon along with
his premium collections ; another holds himself out as being simultaneously engaged
in the real estate business . In this respect , I find that such "outside" activities as
are now being engaged in-selling others' insurance or engaging in other busi-
nesses-are not regarded by Respondent as detracting from the essential character
of the involved debit agents' fundamental occupation : selling Respondent 's insur-
ance on a full-time basis.)
Each agent spends a certain amount of time in the district office, which is open 5
days per week from 8 a.m. to 5 p.m. (From the available evidence, I find that
agents, depending on individual circumstances , go there from one to three times a
week, for a total of 4 to 18 hours.) There, he picks up his messages, prepares or
completes the preparation of his reports and settles his account ( infra), attends
agents' meetings ( infra), and, on occasion , consults with his manager or assistant
manager (infra).
"Homework" constitutes an important part of the routine . The times and amount
vary as between agents, but all of them spend a number of hours working at home
on their weekly reports. I drew the distinct impression that the agent whose house
lights are not burning far into the night before the morning his report is due con-
siders himself fortunate.
Working as a debit agent for Respondent carries with it certain emoluments,
direct and fringe.
The compensation is computed on a commission basis. Each week, the debit agent
receives-or, rather, withholds from his collections of that week-an amount deter-
mined, essentially, by premiums collected and sales made, as affected by a formula
taking into consideration the extent of uncollected premiums due, any increase or
decrease in the "book," and the length of his service with the Company.22
Except as to deviations which are noted hereinbelow, all debit agents in Pennsyl-
vania are paid on a uniform basis. The rate of compensation, and the factors con-
tributing to its computation, are fixed by a document known as an Agent's Commis-
sion Plan, the last general revision of which was made on January 1, 1962.23 Each
agent, as his relationship with the Company begins, is given a copy of the Plan and,
in writing , signifies his agreement with its terms.
On the subject of whether the terms of the Plan, or any modfication of these
terms, are the product of "negotiation" between agent and Respondent or whether
they are unilaterally imposed by Respondent, the respective parties offered evidence,
on the basis of which I find that the terms and conditions of the Plan were origi-
nally formulated by United; that, from time to time, United has revised the Plan, in
which case its revised terms are applicable to all its agents; that, at any given time,
it would offer and does offer compensation to a prospective agent in accordance
with the Plan as of that time; and that the sole "negotiation" on its terms consists
of the agent's (or prospect's) "agreement" as symbolized by his staying with (or
coming to) the Company or his "disagreement" as symbolized by his leaving. (At
least one agent at one time signified that his acceptance of the terms of the plan was
"under protest." He remained with the Company, however, under the terms of the
Plan.) In this connection , it should be noted that on one occasion, as a result of
"suggestions" emanating from debit agents and passed upward , the Company, con-
trary to its regular practice , made a number of modifications of the terms of the
Plan as they applied to the Philadelphia agents only; the modifications were uni-
laterally formulated by the Company and were announced to the affected agents at
district office meetings 24
za There is no minimum or maximum . One of the agents who testified herein earns
$20,000 per year.
23 This is a printed form. Under date of March 16, 1964, a rerun of the 1962 plan,
without change , was prepared for use in connection with the incoming Quaker City agents.
11 The modifications , generally speaking, were "favorable " to the agents.
UNITED INSURANCE CO. OF AMERICA 447
Among the privileges „njoyed by Respondent's debit agents are vacations-in the
Company's parlance, "service award bonuses." In April or May of each year, each
assistant manager calls his staff together, and they discuss vacation schedules. As the
time for each agent's vacation approaches, his sales and collection efforts increase,
for the vacation pay he will receive will be based upon his activities of the 4 weeks
preceding the vacation. At the appointed time, he takes a 2-week holiday, for which
period he receives a lump sum equivalent to one-half his prior 4 weeks' earnings.
During the period he is on vacation, his debit is "covered" by his assistant manager;
and he receives no pay for the assistant' s sales and collections, except to the extent
that such sales and collections involve fire insurance policies issued by the Respond-
ent's sister company.
As has been found, the debit agents set their own work hours, workdays, and
workweeks. Therefore, in addition to vacation periods, they may, if they wish, take
time off for holidays, for illness, or for no reason at all. No advance notice to or
permission from Company representatives is required, and no one covers the agent's
debit on such occasions, with one exception: in cases of more extended absence due
to illness, the involved assistant manager will "work" the debit; when he does, the
earnings realized from his labors inure to the benefit of the agent.
Debit agents are eligible to participate in Respondent's Savings and Profit-Sharing
Pension Fund, a plan whereunder employees, 25 on a voluntary basis, may build up
financial revenues for the future. The details are irrelevant hereto except for the
fact that United makes contributions to the corpus of the fund in accordance with
a specified formula; to this extent, of course, the agents' contributions are enhanced.
Likewise on a voluntary basis, Respondent's debit agents may participate in sev-
eral group insurance plans: Life Insurance , Family Hospital and Surgical Expense,
and Accident and Sickness (income protection) Insurance. The cost of debit agents'
participation in these plans is shared by the debit agents and the Company.26
Forty-two United States code, Section 410(j), treating with social security tax
requirements, defines the term "employee" to include, among others,
(3) any individual ... who performs services for renumeration for any
person-
(B) as a full-time life insurance salesmen .
if the contract of service contemplates that substantially all of such services
are to be performed personally by such individual; except that an individual
shall not be included in the term "employee" under the provisions of this para-
graph if such individual has a substantial investment in facilities used in con-
nection with the performance of such services (other than in facilities for
transportation), or if the services are in the nature of a single transaction not
part of a continuing relationship with the person for whom the services are
performed.
Because its house counsel considers decisions on the application of this provision to
its debit agents to be "somewhat garbled" in that there remains a question as to
whether the principal activity of the individual involved must be the solicitation of
life insurance as opposed to accident-and-health insurance, United, since 1954, has
chosen to treat the agents as "employees" for purposes of this provision. In his
weekly abstract, the basis for "settling up" with the Company, each agent, using
the Federal Insurance Contribution Act tables, provides for the deduction from his
earnings of social security taxes; and, in due time, Respondent transmits this amount,
plus its own FICA contribution, to the Internal Revenue Service.
On the other hand, Respondent takes no steps to cover the debit agents under
any workmen's compensation or unemployment compensation statutes.
While there is no formal system of seniority, length of service with the Com-
pany-with the addition of any service with Quaker City-is taken into considera-
tion in a number of aspects affecting the debit agent . It is given weight in comput-
ing commissions earned, and, derivatively, is reflected in benefits such as the amount
2-The plan specifies that the term "employee" includes its debit agents "for the pur-
poses of this Plan only." Section 7701 (a) (20) of the Internal Revenue Act of 1954,
which deals with pension funds and under which the Company's Fund operates, specifies
that full -time life insurance salesmen may be considered "employees " within the meaning
as used therein
2OThis finding is based on information found on the inside cover of a booklet describing
the Savings and Profit- Sharing Pension Fund (General Counsel 's Exhibit 27 herein).
Witnesses who alluded to these insurance programs testified only that agents paid premi-
ums thereon ; they made no mention of company contributions.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of vacation pay; it is one of the bases for increased benefits under the Company's
pension plan ; it determines the order of selecting vacation periods; and , as will be
found herein , it plays a part in the Company 's "tolerance " of a poor production
record.
Much of the testimony was devoted to the duties of and restrictions upon the
debit agent in the pursuit of his occupation.
I have already found that the debit agent chooses his own days and hours for
collecting premiums and making new -sales contacts ; the frequency of his contacts
with policyholders and customers is a product of his own determination , as influ-
enced by the requirements of policyholders and customers ; and he is free to use
whatever sales approach he deems appropriate.
"Paper-work" is a necessary part of the debit agent 's job. At least once a week,
on or before Thursday, he is required by Respondent to file a report on his col-
lecting and sales activities during the past week , a report containing data as to the
condition of his debit and of the "reserve account" on the basis of which part of
his compensation is computed . At the same time, he must prepare and submit an
"abstract" of his weekly report, which abstract serves as the basis for his striking
his cash balance with the Company .27 In addition , each 3 months , he must prepare
and submit an Advance -and-Arrears report ( an A-and-A ), constituting a picture,
derived from his debit book, of the currency of his policyholders' premium pay-
ments. Also, as and when indicated , he must file reports of policy lapses. On the
basis of the evidence in this record , I find that the preparation of these papers con-
sumes from 3 or 4 hours to a full day per week; it can be done--depending on the
individual agent's preferences-at a single stretch or at separate intervals over a
period of days, at home or in the district office or at both places.
(It should be here noted that the filing of these documents accomplishes a double
object. The weekly report and abstract serve as the basis for the agent 's computing
and retaining from his collections his weekly compensation , as well as for the
Company's keeping track of its insurance liability. Likewise, an A-and-A, which
must "balance " if it is accurate , serves as a self-audit by the agent ; also, it con-
stitutes a further check by the Company on its potential insurance liability. The
lapse report provides a signal for the (seldom employed ) managerial attempt to
"save" the policy ; more important , it serves as another gauge of the Company's
insurance liability.)
In addition , once every 6 months, he must submit a "street list" showing the
name and address of each of his policyholders and the amount of premium each
pays.
United's district managers conduct meetings of debit agents almost every week,
the meeting day varying as between district offices . At this time , sales ideas are
discussed by and between management and the agents ; 28 campaigns and contests
are announced ; sales "pledges" may be educed ; insurance policy changes are
explained ; and, in one case, a change in the employees ' compensation was con-
veyed. Attendance is not "compulsory" in the normally accepted sense of the word,
and the Company maintains no attendance records; absenteeism is not uncommon,
and, occasionally , less than the majority of an office's agents are present. But,
except for individual contacts between members of management and the debit
agents-about which, see infra-these meetings constitute the sole opportunity for
mass-conveying messages from Respondent to its debit agents ; and an agent who
absents himself may be deprived of information important to him and to the Com-
pany, information which may or may not subsequently come to his attention. Under
normal circumstances , an agent will give advance notice that he will be absent. I
find that the working relationship between a debit agent and Respondent will be
adversely affected should he fail to attend a substantial number of scheduled meet-
ings and that, for all practical purposes , relatively regular attendance by any indi-
vidual agent is a condition of the continued maintenance of this relationship.
I have earlier discussed the size and shape of Respondent 's debits. Now, in a
discussion of the "freedom" exercised by the individual debit agent , I must return
to the subject of a debit 's dimensions , in another of its aspects . Perhaps owing to
the fact that a substantial portion of a debit agent 's time is occupied in collecting
premiums, the "size" of an agent's debit is often expressed in terms of the amount
of its premiums due weekly . For example , witnesses spoke of a $475 debit ( a debit
n An equivalent report on monthly pay insurance is due once a month
281 reject the idea, implicit in the testimony of one witness , that these were mere "get-
togethers" of agents to exchange successful ideas . Clearly, these meetings are Company-
sponsored.
UNITED INSURANCE CO. OF AMERICA 449
on which the total weekly premium collectability is $475), an $800 debit, and a
$1,140 debit. Obviously, since collecting consumes time, the size of a debit, in this
sense, will affect the time a debit agent must spend on the debit; and , just as obvi-
ously, it is subject to a greater or lesser degree of control by the debit agent, either
by his exerting greater or lesser efforts toward new sales or by his actions in con-
nection with the transfers of policies between agents . And the fact of the matter is
that debit agents do give vent to their individual tastes in this respect. Based largely
upon his personal circumstances ( e.g., in his opinion , the desirable amount of time
to be spent on the street as against that to be spent at home ), each debit agent has
in mind what he considers to be the "optimum " debit. (I find that the "optimums"
vary greatly-at least from $500 in one case to $1,000 in another.) And agents do
regulate the premium amounts of their debits; specifically, they increase or decrease
these amounts in the direction of the limits they deem to be desirable. And the
Company, will not, under such circumstances, reprimand agents or take any other
disciplinary action.29
As has been indicated, one method of controlling the size and shape of a debit
is to accelerate or decelerate new-sales efforts . Another method-perhaps more
within the effective control of . a debit agent-is to take appropriate action with
respect to the transfer of a policy from one debit agent to another.
Once a debit agent has sold a policy, that policy, and the collection of the pre-
miums therefor, is normally the continuing responsibility of the seller. But the seller
may, if he wishes, seek to transfer the policy to another debit agent. He will usu-
ally, but not always, discuss the proposed action with the potential "receiving"
agent; whether he has discussed it or not, he prepares a transfer form giving details
of the proposed transfer , one copy of which is turned in to his assistant manager.30
The receiving agent may or may not be willing to accept the transfer. For one
thing, he himself may be seeking to hold his own debit down to what he considers
to be its optimum size. For another , in view of the elements making up the Agent's
Compensation Plan-particularly, the fact that both the inability to collect a pre-
mium on one's book or the lapse of a policy may result in a cut in income for the
responsible agent-it behooves the potential beneficiary of the transfer action
closely to examine the gift before he accepts it; and he is given a reasonable period
in which to make an investigation,31 at the end of which he decides to take or not
to take the policy(ies).
My finding in this respect should not be construed to mean that the sole, or even
the most frequent , reason for the desire to transfer out a policy is to regulate the
size of a debit; more frequently than not, the proposed transfer involves a policy-
holder who resides at a distance from the seller 's debit, a situation in which the
collection of premiums would require an undue expenditure of time. ( Occasionally,
though, the would-be transfer is a "block-transfer"-i.e., one which involves a
number of policyholders living in close proximity to each other; this transfer, if
effected , definitely changes the size and shape of two debits. ) The important aspect,
for purposes of this discussion , is the role played by management in policy trans-
fers. Upon a full consideration of the evidence before me, I find that Respondent's
representatives play a minor , and a purely ministerial , part; 32 the decision-to
transfer or not to transfer-depends upon the agreement of both the transferring
and the receiving agents, and the Company neither blocks nor forces a transfer.33
29 Except perhaps, with respect to a "new" man In such a case, a "holding-clown" at-
titude would be considered a reflection upon his suitability for this type of work See
discussion of the termination of a Company-agent relationship, infra
ii This is not to be confused with the sale or assignment of a debit , which (I have
found ) is forbidden No money changes hands between the parties to a policy transfer
31 In company parlance, he "FBI's" the policy
32 In the event the transfer goes through, the information contained on the transfer
form is used at the home office as a basis for official changes in the respective agents'
"life registers" or lists of policyholders
33 Thus, I reject the conclusion implicit in the testimony of several witnesses : that
management can and on occasion does force an agent to accept a transfer. I find that
one such incident was the product of a mistake and that the other-in which, allegedly,
a management representative implied that the failure of an agent to accept a transfer
might result in the refusals of other agents to accept transfers from him-\Nas an ex-
pression of fact as to other agents' possible reactions to an "unreasonable" act by one of
their number rather than an official company position.
264-047-67-vol. 162-30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been earlier indicated that each district office is under the supervision of
a district manager, that each office has a number of assistant managers, and that
each debit agent is on the staff of an assistant manager. In connection with the
subject of the "freedom" enjoyed by debit agents in the performance of their
responsibilities, voluminous testimony as to the relationships of the debit agents
with their district managers and assistant managers was proffered by the parties.
The credible evidence (I find) boils down to this:
District managers and assistant managers are considered "managerial employees"
of Respondent. The links between the men in the street and the home office, they
are held responsible for the smooth and successful operation of the district office.
In the discharge of this responsibility, they keep close watch on the production
figures, take indicated action, and keep Chicago informed. Their compensation, in
large part, is dependent upon the production of the district office (in the case of
the manager) or of a staff of debit agents (in the case of the assistant manager).
District managers have a part to play in a number of actions initiated by debit
agents. For example, the participation of the manager or of an assistant, or of both,
is called for (1) in connection with the debit agents' weekly settlement report and
abstract,34 (2) with respect to the transfer of a policy or block of policies from one
agent to another, and (3) whenever a policy is reported as having lapsed for non-
payment of premiums. But the nature of the participation can be gauged more
realistically in the light of the facts that (1) as for the debit agent's weekly report
and abstract, (a) the manager's/assistant manager's examination of the debit agent's
weekly report and abstract is primarily designed to procure summary information
bearing on the Company's insurance liabilities, and (b) the debit agent's cash settle-
ment on the basis of the report and abstract need not wait upon his manager's or
assistant's examination; (2) as earlier found, the manager or assistant manager has
no authority to block a policy transfer about which the involved agents are in
agreement; and (3) the requirements of managerial action in case of lapses 35
(a) are more honored in the breach than in adherence and, (b) in any event, con-
stitute attempts to maintain up-to-date records of company liability rather than
attempts to control agents' activities.
More to the point are the working relationship between managers /assistants and
agents.
The district manager and, under him, the assistant manager, keep close watch
over the performance of each debit agent under their respective (overlapping)
jurisdictions. They investigate complaints about them made by policyholders. They
study the records and discuss between them the various agents' performances; where
indicated, they will speak to a failing agent, seeking reasons, making suggestions,
and offering the assistant manager's streetside assistance. In his weekly report to the
home office, the district manager will not hesitate to comment on an agent's per-
formance, and, in the same report, he usually notes that an assistant manager is
"assigned" to a particular agent for the following week.
On the other hand, a debit agent to whom an assistant manager's help is offered
(and to whom, presumably, that agent has previously been "assigned"), may, and
sometimes does, refuse the offer. There is no indication in this record that he must
give a reason for the refusal; his decision is accepted by management, and the
assistant manager goes about his other duties 36 Among these duties is the giving
of advice and the rendering of on-debit assistance to any other debit agent who, on
his own, requests either; and, when made, the latter request is always honored
unless the press of other duties prevents it. And, when an assistant manager does
accompany an agent onto the latter's debit, the manner of their joint undertaking-
e.g., whether they will visit homes together or will "`split" the visits-is normally
determined by the agent.
3; The amount due and owing the agent at the end of each week-with all deductions
to be made from this amount-is computed, in the first instance, in this abstract. If his
assistant manager sees the document before it is acted on (but see infra) and if he sees
any obvious mistakes, they will be called to the attention of the agent for correction. But
the basic check of the abstract's accuracy is made by a postaudit at the home office ; if
errors are found, the indicated corrections are relayed to the agent
^Among other things, the manager or assistant must certify that he sought to prevent
the lapse by a personal visit to the policyholder.
38 One of General Counsel's witnesses testified, at least by implication, that an assistant
manager with a staff of six agents must accompany each of his agents 1 out of every
6 weeks. I find that there is no such requirement.
UNITED INSURANCE CO. OF AMERICA 451
There may be, and are, occasions on which the manager and his assistant con-
clude that more than an "offer of assistance" is necessary. For any reason deemed
sufficient by them-and the reason need not be conveyed-they may require an
agent to prepare an interim A-and-A, a task which requires the expenditure of extra
time; and they may insist on the right to examine his books and records. When an
agent's record is sufficiently poor, the assistant manager, the district manager, or
both, may call him in for a discussion-a summons he may not refuse 37-and
discuss the situation with him at length; they may intimate to him that he is not
suited to the industrial insurance business; and they may insist that he accept the
company of the assistant manager on his rounds for a "field inspection." A witness
for Respondent attempted to distinguish between an "offer to assist" and an "offer
to accompany"; whether they are distinguishable or not, it is clear, and I find, that,
in the last analysis, a debit agent is not free to reject the company of an assistant
manager when the latter insists-if he desires to maintain his relationship with
United.38
With respect to the payment of insurance claims, the debit agent has no manda-
tory role. He is free, however, to participate in such phases as he believes will
enhance his standing with the policyholder. He may help in the preparation of the
claim of loss and-although he has no part in its verification-he may follow its
progress. The claim validated, it is normally paid by company check, delivered by
the debit agent; but the agent may, if he wishes, use premium funds collected to
pay the claim in cash-the receipt for the money paid to the policyholder serving
as cash subsequently turned in with his settlement abstract 39
There was surface disagreement between the parties-the General Counsel and
the Union on the one hand and Respondent on the other-as to the basic equip-
ment and the tools necessary to discharge the responsibilities of a debit agent. But
the apparent disagreement dissolves under close scrutiny. In effect, all parties were
in agreement, and the testimony offered by each establishes, that a debit agent's
stock in trade is (to give it the labels applied by witnesses), his salesmanship, his
personality, and his imaginativeness; and that the exercise of his skill requires that
he possess or have access to certain auxiliary tools; a rate manual; the debit book;
premium receipt books (for retention by policyholders); business forms, such as
insurance application blanks; reporting forms, whereby the Company can be kept
informed of the results of the agent's efforts; and basic advertising materials. I
find, on this record, that the debit salesman furnishes (to the extent he possesses
them), the salesmanship, the personality, and the imaginativeness, and that the
Company furnishes the enumerated auxiliary tools. Although Respondent was
unwilling to stipulate that it furnished more than "some of the blank forms and
advertising materials needed by the agent" (emphasis supplied), I find that, for all
practical purposes, it furnished all such items. To the extent that any witness testi-
fied that he furnished his own items in these categories (e.g., in one instance, a
pad of blank paper; in several, personal advertisements; in others, Christmas cards
or calendars), he made it clear that he was fulfilling what he considered to be a
personal need.
More tangible was the parties' disagreement on whether agents are required to
use the forms and advertising materials furnished by the Company. To the extent
it has relevance, I find that, in the absence of a situation clearly calling for a sub-
stitution, agents are required to use company recording, reporting, and general
business forms,40 but that agents are free to use or not to use the business "helps"
in the form of the available advertising materials.
(Having found that United furnishes all necessary forms and that the agents are
required to use them, I find, in addition, that the rate manuals and the debit books
remain the property of the Company at all times. Most of the debit agents own
automobiles which they use for transportation either to or from their offices and
7 According to a manager called as a witness by Respondent, he may, "under dire
circumstances," call an agent at his hone at night
See infra, for a discussion of the termination of a Company-agent relationship
One agent, who has a "Latin" following, often pays rejected claims out of has own
pocket, insisting that this is "good business." The same agent scorns the selling advice of
his assistant manager on the basis of what he conceives to be his superior knowledge of
the personal characteristics of his clientele.
'" Except for a form notifying a policyholder of his being in arrears on premium pay-
ments ; its use by agents is optional.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
debits or on the debit itself, although there is no formal requirement that they do
so. On the debit, house-to-house visits do not normally require the use of a car.)
Several agents, according to this record, receive or have received an amount
above and beyond that to which they would be entitled under the terms of the
Commission Plan generally applicable to their groups. One agent who testified at
this hearing is given 211/z percent of his collections and another receives 21 percent
instead of the usual 20 percent; and one agent, in 1957, received a $5 weekly fee
for the use of his automobile in servicing an "out-of-town" debit. The General
Counsel and the Union contend that the differentials constitute compensation for
the use of automobiles on the job; Respondent, in effect, concedes that the 1957
payments were for travel expenses , but takes the position that the 11/ percent and
the 1 percent now being paid are part of the involved agents' regular pay. The
agents who presently receive these differentials were among those who came over
from Quaker City in March 1964. There, they each had received a flat sum in lieu
of a mileage allowance for the use of their cars,41 and when they were given the
opportunity to go with United, they called attention to this fact; it was agreed,
thereupon, that they would be given 11/z percent and 1 percent, respectively, the
dollar amounts represented by these percentages roughly approximating the com-
pensation each had been receiving as an automobile allowance. Since then, the
differentials have not been used in computing vacation pay (see supra). In view of
this history and in the absence of any other satisfactory explanation for the favor-
able treatment accorded them, I conclude and find that these extra payments con-
stitute amounts given in lieu of travel expenses rather than compensation for regu-
lar services rendered.42
In the absence of any special arrangement, however, a debit agent is expected to
pay his own travel expenses.
Limited only by the legal prohibition-against the selling of insurance and the
collection of premiums by unlicensed personnel, agents may use whatever help
they wish. It does not appear, however, that United's debit agents make any
arrangements for assistance, other than the casual and the trivial. A policyholder
may arrange that his premium be collected from another holder, with whom he
leaves his money and his premium receipt book; or someone at a place of business
may turn over to the agent the premiums for a number of policyholders who work
there, and in turn receive their receipted books for return to them; or, as in one
case, an agent hired a "bodyguard" for 2 days. Any expenses incurred in connec-
tion with such acts are the agents 43
Almost all the agents treat a part of their home as an office, exclusively or
partially. There, they keep a desk, typewriter, adding machine, telephone exten-
sion,44 or some of these. A number of them use such items as the basis for income
tax deductions, since, in any event, the Company pays none of the expenses.
As earlier noted, one agent simultaneously is engaged in the real estate business;
he has an office at which he also will conduct company business. On one occasion
in the past, one agent rented a street-entrance basement room for $8 a week which
he held out as a place of (insurance) business. The Company did not compensate
either.
The agent does have desk space at the district office, although there is no paid-
for telephone at his disposal. Incoming telephone messages are held for him, and,
occasionally, the problem which is the occasion for one of his incoming calls will
be solved by his assistant manager. If he has any policyholders who pay by mail,
an office clerical will process the transaction: abstract the check, receipt and return
41 One of them covered for Quaker City and now covers for United a large suburban
debit The record contains no details as to the size of the other agent's debit
'2I regard it as immaterial that one or both of the agents did not treat it as such
for income tax purposes. I also regard as immaterial the fact that a third agent (who did
not testify) once received a 2 percent differential when he worked on a large debit and
later retained the same benefit when he transferred to a small debit, this, in my view,
constitutes a historical accident which merely serves to corroborate my finding herein.
48 The Company has various trinkets available for purchase by agents which may be
used to reward "helpers" or agents may purchase tokens of appreciation elsewhere ; they
may pay out sums of money ; or they may credit a helpful policyholder with "time on
his book"
94 Almost invariably, the home telephone, to the degree it is used for business, is used
for outgoing calls only. The incoming phone number given out by an agent is usually
his district office number
UNITED INSURANCE CO. OF AMERICA 453
the premium receipt book to the policyholder, and transmit to the agent a notice
of the transaction which he can use as cash in his weekly abstract.45
In addition to offering the small items which agents may use as gifts, Respondent
has available several types of business cards and a number of selling aids for sale.
Agents are not required to buy them; if they do, they pay for them.
An agent pays for his original licensing-in the neighborhood of $10. Apparently,
there is no charge for renewals.
I have already found that certain advertising "helps" are furnished the agents
without charge: brochures, calendars, and Christmas cards. Some agents (at their
own expense ), imprint their own names on these materials, and some of them go
out and purchase this type of item elsewhere . Specifically , an agent has ordered
what he considered to be a better calendar, and a number of agents have sought
to extend their good will by doing their own advertising, with civic, religious, and
athletic organizations. Obviously, the Company does not forbid such extra efforts,
but they are at the respective agents' expense 46
Agents also engage in certain activities designed to enhance their effectiveness
as sellers of insurance : e.g., join organizations , contribute to community projects,
act as business advisors , write or translate letters for policyholders , and subscribe
to trade magazines . The annual "extra" expenditures of one of the witnesses who
testified-and, clearly, he and one other spent more than the rest-amounted to
$200, plus that spent for Christmas gifts.
The relationship of a debit agent and the Company is terminable at will and
without notice , at the option of either . At one end of the scale are agents' "resig-
nations," based upon low earnings or some other symptom of incompatibility with
the work. At the other are instances in which the Company institutes terminative
action because of an agent's undue shortage in moneys turned in or his outright
embezzlement.
The largest group of terminations consist of agents' resignations . In the main,
but not necessarily exclusively, these come from relatively new agents.
One of Respondent's witnesses, District Office Manager Toplin, testified-credibly,
I find-about company policy on terminations for the withholding of funds collected
by agents: A termination by the Company would be "automatic" in the case of an
agent's embezzlement. With respect to shortages in money collected, there is an
unwritten rule that a shortage above $ 57 is considered serious; termination is almost
automatic, but it depends upon the discretion of the district manager.47 And,
finally, while terminations for these reasons constitute a very small proportion of
all terminations , they constitute a majority of the terminations initiated by the
Company.
The parties introduced testimony as to several terminations which fall between
the extremes . One agent was "spoken to" by his manager and assistant manager
after 5 months of experience indicated that he was "incapable" of writing new
insurance or collecting premiums ; about a month later , his record showing no
improvement , he quit the business . With respect to two other agents, each with 3
or 4 months of service , the district manager , suggesting that they were not cut out
for the insurance business , requested and was given their resignations.48
According to Manager Toplin, United's tolerance of an agent 's poor production
record (whether the result of a deliberate effort to hold down the size of a debit
or for any other reason ), increases as the agent's length of service with the Com-
pany increases . While Toplin might ask a new man with an inauspicious record for
his resignation , he "did not think" he would take this action with respect to a 2-
year man-although he might "comment" to him-and he would "have to live
45 The General Counsel makes much of the fact that the District Office pays the postage
in returning the book It should be noted that this is the only instance of its kind, one
agent at whose request the district office sends material to his home has to foot the bill
for the postage
46 Respondent does insist that the agents, in their advertising, conform with State law.
47 It should be noted that shortages-i e., a failure to report all money collected
during the reporting period-are not easily detectable, since, in the first instance, the
Company's knowledge of the amount collected is derived from the weekly report of the
agent himself ; the fact that funds have been collected but not reported can be uncovered
only as a result of an A-and-A, normally prepared quarterly, or of a field inspection,
ordered because of suspicious circumstances
One of the two requested and ii as given the opportunity to shift debits, but the
change made no apparent difference.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with" an oldtimer ( for example , a 20-year man ), who was not producing . In view
of the substantial evidence herein of overlapping and duplicative debits, I find
somewhat confusing , if not incredible , Toplin 's testimony that not only would he
tolerate the poor production of the oldtimer but , "satisfied with less business" in
the area in question , he would send no other agent into that neighborhood. But a
resolution of this question is unnecessary ; on his testimony as a whole, viewed in
the light of all the evidence , I find that Respondent believes it has the authority,
and does have the authority , to terminate any agent for low production.
In connection with the termination of an agent, whatever its nature or the reason,
he must surrender his rate manual and debit book, and a final audit of the state
of his debit is made.
When the relationship has been terminated , Respondent must notify the State
Insurance Department which, in turn , cancels the agent's license to sell insurance
for United . Thereafter (by operation of State law), he may not sell insurance for
any company unless or until he possesses a specific license to do so.
Because they do not fit into any of the categories treated above , I here set forth
findings as to certain miscellaneous factors which may throw light on the status
of the debit agents.
The debit agent has no control over, and cannot vary, the price of his product-
the insurance policy. This is a requirement of the State, which has approved a rate
schedule submitted by the Company, and of Respondent.
In point of fact, the Respondent requires agents' adherence to all regulations of
the State Insurance Department.
I have noted that the debit agent , with his weekly report and abstract , turns in
the money he has collected during the week, less that which is due and owing him
for his services . He may, if he wishes, make partial deposits earlier in the week,
using the receipts therefor in lieu of cash turned in with his abstract . On the other
hand , he may-and usually does-retain all such money until his reporting day;
and, in the interim , he may use it as he wishes.
Respondent honors debit agents ' requests to withhold funds for the payment of
Federal income taxes and, in proper time, it transmits the money withheld to the
Internal Revenue Service; likewise, appropriate city income taxes are computed,
withheld , and transmitted. It does so , however, purely as a courtesy to the agents,49
who are free to specify whatever amount-including "nothing"-they wish to be
deducted.
The agents in a district office have what is known as an agents' fund , to which
they make a contribution each week . The fund , which is in the custody of the office
cashier 50 but is administered by three agents, is used, for example , to pay premi-
ums for agents ' holdup insurance , for prizes in the agents' own sales contests, for
remembrances in case of sickness, and for parties and the like.
Clearly, as has been earlier suggested, the Company regards the work of its debit
agents as full-time work . This is emphasized at.the original interview and is the
basis for maintaining the future relationship . To the degree that , as found above, it
permits other activities , it regards their engagement as above and beyond the full-
time task for which the agent is responsible.
To the extent that it has any bearing , I find that some of the debit agents regard
themselves as employees and that some regard themselves as "in businss." But the
latter group , asked by whom they are "employed ," give the answer- "United Insur-
ance Company of America."
Respondent contends that its only rules for agents ' conduct are those found in the
rate manual and that, as there specified,
Any rules contained herein with respect to the methods and means of conduct-
ing your [i .e., the agent 's] insurance business have been established and are
required by state law and by regulations of the various Insurance Departments
throughout the country and are binding upon the Company and the Agent.
Subject to the above , the Company is solely interested in the results obtained.
Most of the manual is filled with descriptions of and rates for various types of insur-
ance policies, matters which, I find , are governed by State law. But there are many
items which , self-evidently , are not prescribed either "by state law or by regulations
of the various Insurance Departments throughout the country ." They normally are
'fl For several months in 1955 , Respondent stopped holding Federal income taxes for
agents The result was an outcry among the agents , and the previous practice was resumed.
5o Who is not under the supervision of the district office manager.
UNITED INSURANCE CO. OF AMERICA 455
not framed in terms of rules of conduct , but they do shed some light upon Respond-
ent's interest or lack of interest in its agents ' manner and means of operating. To
name a few-and I paraphrase:
All premiums collected are trust funds and must be remitted in accordance with
the Company's procedure.
The Company suggests that newly issued policies be delivered immediately by the
agent in person and only after settlement of premium. They should not be mailed or
sent to the insured in any other manner and must not be delivered to the insured
without the settlement of premium.
The agent is responsible for the first premium or policies issued and sent him for
delivery. If, for any reason, a policy is sent him before settlement is made, the agent
must, before delivery, obtain settlement . If a policy is not delivered and the agent
does not make remittance of premium within 30 days, he is liable for fees and
charges, e .g., of the medical examiner.
If the health of the insured has been impaired prior to delivery of the policy, the
agent should withhold and return it to the Company with a full statement of rea-
sons for withholding.
The agent should seek the collection of premiums due at the first opportunity; he
should not wait until the grace period has expired. If the grace period has expired,
he should complete an application for reinstatement and submit it with a health cer-
tificate and premium remittance.
A careful search for a lost policy should be made before a request for a duplicate
is made.
The agent should make a full report upon death of a policyholder and attach all
newspaper accounts or reports of death . Where there is a double indemnity clause,
the agent should state carefully and fully all details incident to the death.
It is not permissible to collect any premiums after the death of the insured.
Cases postponed by the temporary illness of an applicant should be followed up
by the agent at the end of the postponement period.
The first and most important selection of risks is by the agent . If he receives more
than his share of unfavorable decisions by the home office, he should take stock of
the type of business he is soliciting.
The time to place "rated" contracts is at once . The applicant should not be per-
mitted to "cool" or become impatient or disgusted because of time lost in argument
over risk classification.
Agents should not write applications for industrial insurance on persons not seen
by them.
3. Discussion and conclusions
The Act does not precisely define the word "employee." Section 2(3) provides, in
pertinent part , that the term shall not include "any individual having the status of
an independent contractor ." The legislative history of the section shows that Con-
gress expressly excluded independent contractors in order to remedy what it thought
was an unwarranted expansion of the definition of "employee" in N.L.R.B. v.
Hearst Publications , Inc., 322 U.S. 111 , to include persons who would be considered
independent contractors at common law.51 Congress broadly viewed as employees
persons who "work for wages or salaries under direct supervision " and as inde-
pendent contractors those who "undertake to do a job for a price, decide how the
work will be done, usually hire others to do the work, and depend for their income
not upon wages but on the difference between what they pay for goods, materials,
and labor and what they received for the end result, that is, upon profit." 52
As shown by the legislative history of amended 2(3), whether in any given situa-
tion the relationship at issue is that of employer -employee or that of independent
contractorship must be determined under common law concepts 53 Generally, under
the common law "right of control " test , an employer-employee relationship has been
found where the person for whom the work is to be done, while he may relinquish
some of his authority over certain aspects of the day-to-day operations , retains con-
trol over, or the right to control , the significant portions of the details and means
n See, e.g., H. Rept. 245 on H R 3020, 80th Cong, 1st sess, p 18; and H Conf Rept
510 on H.R . 3020, 80th Cong, 1st secs., pp. 32-33.
sa H. Rept 245, supra.
m N.L.R B. v. Nu-Car Carriers, Inc., 189 F 2d 756 (C A. 3), cert denied 342 U S.
919. Also see N.L.R.B v. Steinberg and Co., 182 F.2d 850, 854-855 (C.A. 5).
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by which the desired result is to be accomplished.54 As pointed out by the Supreme
Court in the Hearst case,55 the application of common law concepts to given fact
situations is no simple task. Every facet of company-agent relationship must be
carefully scrutinized and considered
A logical opening would be to place the elements of the instant case alongside
those which were relied upon by the Court of Appeals for the Seventh Circuit in the
1957 proceeding wherein Pennsylvania debit agents were found to be employees.56
Here, as there,57 the debit agent sets his own workhours as well as workdays; he
pays his own rent,58 postage, and telephone expenses, and I must presume (since
the burden herein is the General Counsel's), that he would have to pay any bond-
ing expense; he may take days off without notice; he may transfer policies to con-
senting agents and vice versa, without company interference, and he may not be
forced by the Company to participate in undesired transfer transactions; he retains
his commissions from funds collected; he is free to sell anywhere in Pennsylvania;
he must submit the reports which, in the opinion of the court, are no more signif-
icant than those required of a manufacturer's representative by a manufacturer; and,
while the Company owns the agent's rate manual, they are the agent's sole source
of rate information. Other elements are superficially similar. In the 1957 case,
according to the court, agents paid the salaries of assistants; here, I find, Respond-
ent would not reimburse agents for assistants' salaries, but these agents 59 have no
salaried assistants, whereas, according to the court decision, the agent (quoting from
the Trial Examiner) "is free to follow the superintendent's 60 suggestions or to
devise his own methods," the effect of the managerial system found in the instant
case, as will be discussed below, is seriously to curtail that freedom; and, while
attendance at agents' meetings is not compulsory, I have found, in this case, that
relatively regular attendance by an individual agent is, for all practical purposes, a
condition of the continued maintenance of the companyragent relationship. And,
finally, we have the dissimilar factors. Here, in contrast with the facts recited in the
court opinion, the Company does pay travel expenses where it is warranted; a newly
engaged agent is not free to choose any area in his district office which is geo-
graphically convenient-he is given an open debit; transfers of an agent are not con-
ditioned upon his requesting them; an assistant manager may accompany an agent
in his debit whether or not the agent "desires" it; and, finally, the agents do not pay
the full cost of the group insurance plans available to them. Clearly, the cases are
not on all fours.
On the other hand, a side-by-side evaluation of this case and the Phoenix Mutual
case,61 in which the same court found that company's insurance salesmen to be
employees rather than independent contractors, demonstrates substantial differences.
The "like" elements: A prospective salesman needs no experience; he makes writ-
ten application and is then interviewed; engaged, he is assigned a given territory and
is expected to work full time; he is provided a headquarters with desk space, sales
supplies, and advertising materials. On the other hand, there are a number of
"unhkes," in varying degrees. In Phoenix, the company provided telephones, post-
age, stationery , and business cards; it paid for salesmen 's licensing and bonding; it
forbade them to engage any help; except for voluntary additional contributions, it
fully financed a retirement and provision plan; and it provided a special disability
pension . More important , Phoenix apparently set a new-business production stand-
ard which had to be met under penalty of "discharge"; and Phoenix required its
w N L R B v Phoenix Mutual Fife Insurance Company, 167 F.2d 983, 985-987 (C A
7), cert denied 335 U S 845; N L R B v. Steinberg, supra, 857-858; N L.R B. v. Key-
stone Floors, Inc, 306 F 2d 560, 562 (CA 3); Local 24, International Brotherhood of
Teamsters v. N L R B., 266 F.2d 675, 678, 680 (C A.D C ; National Van Lines, Inc. V
1' L R B , 273 F.2d 402, 403 (C A. 7). See United States V Silk, 331 U S 704, 714-718.
Supra, 120-124
ss And which, I have earlier indicated, I would consider the law of that case.
57 The order of the elements listed here is not to be construed as a measure of their
importance I have adopted the order as it appears in the court's opinion
The court did not specify whether it was referring to the cost of home space or to
the cost of "outside" offices. By referring back to the Intermediate Report upon which the
court case was based, I find that the sole rental there involved a $10 charge that Agent
Presley made for his use of space at home ; lie testified in the instant case that he still
makes this charge
-^ As contrasted with general agencies, who are not involved herein
60 The parties stipulated herein that an assistant manager was formerly called a
"superintendent
61 Supra.
UNITED INSURANCE CO. OF AMERICA 457
salesmen to furnish a daily record of interviews and sales, number of hours worked
in the field and number of new prospects seen, and similar details. Obviously,
Phoenix is not controlling.
So, once again, we must look at the "total situation" here to determine the extent
of the control, either exercised or reserved, over the agents' methods and means of
conducting their business.
In the course of this hearing, the statement most repeated was that Respondent
is interested only in the results of the agents' efforts, not in the manner and the
means employed in achieving those results. And the strongest arguments in support
of the statement were the facts that the agents select their own worktimes, make as
many or as few visits to present or prospective policyholders as they wished, and
select their own sales approaches; not only do they possess such freedom-they
can exercise it without reporting to the Companay on their activities. But the sig-
nificance of these facts can only be gauged in the light of the basic function per-
formed by the agents.
As all parties agreed, the stock in trade of a salesman are his salesmanship, his
personality, and his imaginativeness. (And this is true whether he be an employee or
an independent contractor.) The most effective use of a salesman (employee or con-
tractor) consists of recognizing this and refraining from restricting him in the exer-
cise of the selling characteristics which are peculiarly his own. The self-interest of
the principal dictates that, unless the results call for a contrary course, he permit
the salesman to devise and utilize his own manner and means of selling to the wid-
est extent. It is in the action taken when the results are not satisfactory that (I find)
the instant debit agents are distinguishable from independent contractors. When the
debit agent fails to produce, his assistant manager or district manager successively
speaks to him, offers to work with him, and insists on working with him; finally all
other means exhausted, the manager asks him to resign-only refraining from tak-
ing this step if the agent's record of service is a long one. The conclusion is ines-
capable that the Company's interest in results is such that, when results fall short, it
retains the right to control the means and manner whereunder the results are being
achieved.
In another respect, the nature of the debit agent's work militates against the
directing, except where the results demand it, of his methods of operation. His sell-
ing and collecting is done out in the field at odd hours. Clearly-employee or inde-
pendent contractor-he cannot be closely "supervised." Only if his poor perform-
ance demands it (and only if he is an employee), is anything done about his way of
operating-as it is here.
The ratio of one assistant manager to six agents strengthens this conclusion. The
former, working full time, devotes himself to making sure, through his staff, that
Respondent's basic mission-selling insurance-is effectively accomplished. Of course,
he is interested in results, but, if and when they hoist a warning signal, he cannot
help but be interested in the manner in which the results are being attained.62
This observation naturally leads us into a broader area. A main function of
United is to sell insurance and to conserve the insurance policies it issues. While it
is free to choose the manner in which it will conduct the function, it must be recog-
nized, in determining what choice was actually made, that this is not merely one of
the Company's sidelines; it is its bread and butter. As for the involved agents, their
fulltime occupation is selling and conserving the Company's insurance policies. They
typically have no prior experience in the field; they undergo a period of training by
Respondent; and, thereafter, they hold themselves out to be United salesmen. This
relationship is a far cry from that which exists between United and the general
agencies who deal regularly with Respondent,63 licensed insurance brokers who sub-
mit insurance applications to Respondent, and "freelance" insurance salesmen
(licensed to sell for Respondent), who sell an occasional policy; here, we have a
degree of closeness and interdependence which hardly paints a picture of company
representative and debit agent traveling their independent ways.
So, we have that degree of control or right to control which signifies the existence
of an employer-employee relationship. In addition, certain other aspects of the rela-
tionship point in the same direction.
The rate of compensation is unilaterally imposed. There are paid vacations.
United contributes to pension, life insurance, hospital and surgical expense, and acci-
e2 Interestingly enough, an assistant manager may become a debit agent on rare
occasions Normally, the movement is in the other direction
"These general agencies, with employees of their own (subagents), sell policies for
United under contract with that company
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent and sickness plans. Length of service with the Company plays a part in a num-
ber of important privileges. And the Company furnishes all necessary forms, includ-
ing basic advertising aids.
Finally, I find that the Company has a substantial investment in each debit
whereas the debit agent does not. The latter's business expenditures, such as he
chooses to make, are, in fact, minimal. And, except for his time, he takes no risk of
a net financial loss.
Upon the entire record and on what I am convinced is a fair preponderance of
the credible evidence, I am persuaded and find that Respondent retains the right to
direct and control, in substantial detail, the details and means by which the selling
and collecting functions of its debit agents are carried out. I conclude and find that
the debit agents are employees rather than independent contractors.64
Upon the foregoing factual findings and conclusions, I come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 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. The debit agents employed by Respondent at its district offices located in the
Commonwealth of Pennsylvania are employees within the meaning of Section 2(3)
of the Act.
4. All debit agents employed by Respondent at its districts in -Pennsylvania
(Philadelphia, Upper Darby, Chester, Harrisburg, Reading, York, Hanover, Pitts-
burgh, McKeesport, Greensburg, and Somerset), excluding special agents, inspec-
tors, office clerical employees, professional employees, guards, managers, assistant
managers, and supervisors as defined in the Act, constitute and at all times material
herein constituted a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
5. The Union, at all times material, has been and is the exclusive representative
of all employees in the aforesaid bargaining unit'within the meaning of Section
9(a) of the Act.
6. On and since April 9, 1965, by refusing to bargain collectively with the Union
as exclusive representative of the employees in the aforesaid bargaining 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.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it be ordered to cease and desist therefrom
and to take certain affirmative action in order to effectuate the purposes of the Act.65
In arriving at this conclusion, I have given full consideration to certain factors
which militate in a contrary direction , the facts that the debit agent sets his own work-
time : that he may transfer-out or transfer-in policies without interference ; that he may,
and does, regulate the sire of his debit, that he is free to advertise or engage in other
"enhancement" activities as he wishes, and that, until settlement date, he may use
premium money collected as his own. And I do not rely on other factors which are as com-
patible with an independent contractorship as with an employer-employee relationship :
the facts that certain agents receive travel expenses , that agents may not sell competitive
products , and that they must regularly report the result of their activities Nor do I
rely on still other factors which I find, have no probative value : the fact that the Com-
pany makes social security payments, out of an abundance of caution ; the fact that it
withholds and transmits income tax payments, as a courtesy to agents , and the fact
that it requires agents to operate within the requirements of all State insurance laws.
a, At the hearing, the Union urged, as a remedy herein, that Respondent be ordered to
adopt and install, for these debit agents, either all the working conditions, or at least
"the most favorable" working conditions, set forth in a collective-bargaining contract
allegedly executed on or about October 1963, between the Union and Quaker City ; and,
in support of such contention, offered to prove the existence of such contract and to
prove that, if Respondent had bargained with the Union herein, the terms of such con-
tract, or at least its most favorable terms, would have been incorporated in a collective-
bargaining contract between the Union and Respondent. Because I regarded the conten-
tion, under the circumstances, as unduly speculative, to say the least, I ruled this out
as an issue and rejected the offer of proof These rulings are here reaffirmed.
UNITED INSURANCE CO. OF AMERICA 459
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case, I hereby issue the following:
RECOMMENDED ORDER.
United Insurance Company of America, of Chicago, Illinois, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Refusing to bargain collectively with the Insurance Workers International
Union, AFL-CIO, as ' the exclusive representative of its employees in a bargaining
unit composed of all debit agents employed by Respondent at its districts in Penn-
sylvania (Philadelphia, Upper Darby, Chester, Harrisburg, Reading, York, Han-
over, Pittsburgh , McKeesport, Greensburg , and Somerset ), excluding special agents,
inspectors , office clerical employees , professional employees , guards, managers,
assistant managers , and supervisors as defined in the Act.
(b) In any like or related manner, interfering with , restraining , or coercing its
employees in the exercise of their right of self-organization , to form labor organiza-
tions, to join or assist any labor organization , to bargain collectively through repre-
sentatives of their own choosing , to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to refrain from any
and all such activities (except to the extent that the right -to refrain may be affected
by an agreement requiring membership in a labor organization , as authorized in
Section 8(a)(3) of the Act).
2. Take the following affirmative action, which I find will effectuate the policies
of the Act.
(a) Upon request , bargain collectively with the above labor organization as the
exclusive bargaining representative of all of its employees in the above-described
unit.
(b) Post at its district offices located in the Commonwealth of Pennsylvania,
copies of the attached notice marked "Appendix ." 66 Copies of such notice, to be
furnished by the Regional Director for Region 4, after being duly signed by an
authorized representative of Respondent , shall be posted 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 Respondent to insure that such notices are not
altered , defaced , or covered by any other material.
(c) Notify the said Regional Director , in writing, within 20 days from the date
of the receipt of this Decision, what steps the Respondent has taken to comply
herewith.67
08 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. 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 "
07 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read* "Notify the 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, upon request , bargain collectively with Insurance Workers Inter-
national Union , AFL-CIO , as exclusive bargaining representative of all debit
agents employed by Respondent at its districts in Pennsylvania (Philadelphia,
Upper Darby, Chester, Harrisburg, Reading, York, Hanover, Pittsburgh,
McKeesport , Greensburg , and Somerset ), excluding special agents, inspectors,
office clerical employees , professional employees , guards, managers , assistant
managers , and supervisors as defined in the Act, constitute and at all times
material herein constituted a unit appropriate for the purposes of collective
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining within the meaning of Section 9 (b) of the Act; and WE WILL,
if an understanding is reached , embody any such understanding in a signed
agreement.
WE WILL NOT, by any refusal to bargain , interfere with, restrain , or coerce
our employees in the exercise of their right to organize; to form, join, or
assist a labor organization ; to bargain collectively through a bargaining agent
chosen by themselves; to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection ; or to refrain from
any such activities ( except to the extent that the right to refrain is limited by
the lawful enforcement of a lawful union security requirement).
Dated------------------- By-------------------------------------------
(Representative) (Title)
UNITED INSURANCE COMPANY OF AMERICA,
Employer.
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, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia , Pennsylvania
19107, Telephone 597-7617.
Shovel Supply Company, Inc. and International Union of Electri-
cal, Radio and Machine Workers , AFL-CIO . Case 16-CA-501.
December 30, 1966
DECISION AND ORDER
On August 22, 1966, Trial Examiner Josephine H. Klein issued
her Decision in the above-entitled proceeding, finding that the
Respondent has engaged in and is 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, the Respondent filed exceptions
to the Decision and a supporting brief.
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 [Members Fanning, Brown, and Zagoria].
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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modification: I
i The charge herein was filed on October 29, 1965 . Section 10 ( b) of the Act prohibits
finding violations based on conduct which occurred more than 6 months before the filing
of unfair labor practice charges. In this instance that date would be April 29, 1965.
Accordingly , and contrary to the Trial Examiner ' s finding that Respondent failed to
bargain In good faith from on or about April 16, 1965, we find that such failure occurred
on and after May 7, 1965 , the date of the parties ' second bargaining meeting.
162 NLRB 43.