Continental Insurance Co.

National Labor Relations Board - Board Decisions

Feb 1, 1968

169 N.L.R.B. 600 (N.L.R.B. 1968)

600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
Continental Insurance Company and American
Communications Association , Communications
Trade Division , International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Help-
ers of America , Petitioner. Cases 2-RC-14651
and 2-RC-14679 (formerly 22-RC-3696)
February 1, 1968
DECISION AND DIRECTION OF
ELECTIONS
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND BROWN
Upon petitions duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
consolidated hearing was held before Hearing Of-
ficer Raymond P. Green.
Pursuant to the provisions of Section 3 (b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Thereafter, the Employer and the Petitioner filed
briefs in support of their position.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. Questions affecting commerce exist concern-
ing the representation of employees of the Em-
ployer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The Employer is engaged in all phases of the
sale and `service of casualty, property, and life in-
surance throughout the United States and Canada.
Its home office is located in New York City, New
York. Regionally, the Employer operates through
nine departments, each one servicing a different
geographic area of the United States and Canada:
the Eastern, Metropolitan New York City, Middle,
Southeastern, Buckeye, Western, Southwestern,
Pacific, and Canadian departments.
The Metropolitan New York City department
consists of three branch claims offices located
within 25 miles of each other: New York City,
Huntington, and White Plains.
The Middle department consists of nine branch
claims offices: Newark and Perth Amboy in New
Jersey; Baltimore, Maryland; Charleston, West
Virginia; Washington, D. C.; and Allentown, Har-
risburg, Pittsburgh, and Philadelphia, Pennsylvania.
With respect to the Metropolitan department, in
Case 2-RC-14651, the Petitioner seeks a unit con-
169 NLRB No. 85
listing of all claims adjusters, examiners, and in-
vestigators (herein called adjusters), and also the
supervising adjusters in the New York City branch
claims office. The Employer contends, initially, that
the only appropriate unit is one that should also in-
clude the other two branches of the Metropolitan
department, Huntington and White Plains.
With respect to Case 2-RC 14679, the Petitioner
seeks two separate units of adjusters and supervis-
ing adjusters, one at the Employer's Newark, New
Jersey, and the other at its Perth Amboy, New Jer-
sey, claims office, both in the Middle department.
The Employer argues for a combined unit of all nine
branch claims offices in the Middle department.
All, nine departments perform basically the same
functions: selling insurance policies and settling
claims. Each department is headed by a departmen-
tal manager with overall responsibility for the Em-
ployer's business within his territory. At the branch
office level there is a branch manager with twin
responsibilities. He reports to the manager of his
department and also to an official at the home office
in charge of his particular operating function. At the
Metropolitan New York City department, Henry
Gregory is the departmental manager. He is also
the head of the New York City branch claims of-
fice. The other two branch offices are headed by
branch claims managers who report to Gregory in
his capacity as department manager.
In opposing the unit sought by Petitioner in Case
2-RC-14651, the Employer contends that the smal-
lest relatively autonomous unit of its claims struc-
ture is composed of claims employees from all three
branches making up the department. It argues that
the centralized control exerted over White Plains
and Huntington by the same personnel as exercise
control of the New York City branch office com-
pels this conclusion. This control, the Employer ar-
gues, is manifested in various ways. Thus, one of
the Employer's exhibits reveals that between
November 4, 1966, and May 11, 1967, supervisors
from the New York City office in their departmen-
tal capacity made 40 full-day visits to the other two
branches. These visits were primarily for the pur-
pose of improving claims processing procedures
and occasionally would include the settlement of
certain claims. These visits, however, represent no'
more than a normal degree of departmental supervi-
sion over the activities of a subordinate body. One
would expect this degree of supervision to be exer-
cised by any regional office over a district office.
As evidence of employee interchange, the Em-
ployer presented evidence that out of a group of ap-
proximately 110 claims employees in the three
branches there have been about 40 nonpromotional
transfers since 1960. Most of these transfers, how-
ever, were permanent and not temporary in-
terchanges; and the few temporary interchanges
were virtually all to a World's Fair branch which
was set up for a specific purpose and for a limited
time.
CONTINENTAL INSURANCE COMPANY 601
The Employer relied heavily on the fact that
claims of a certain category, arising at the branch
offices and denominated DCO reporting claims, are
closely supervised by personnel from the
Metropolitan department headquarters. The branch
office places what is called a reserve on each claim
that it receives. DCO claims are those claims in
which the estimated liability, the reserve, exceeds
a certain stated amount. The department headquar-
ters keeps a separate file on all DCO claims. The
record reveals that the non-DCO claims far exceed
DCO claims both numerically and in moneys paid.
All such non-DCO claims are handled exclusively
at the branch office levels. Therefore, it is quite
clear that, in the vast majority of claims processed
to conclusion, the branch offices are in complete
control.
It is true, as the Employer contends, that such
personnel policies as hiring, firing, and the granting
of raises are quite centralized, and final authority in
these areas resides in the person of Departmental
Manager Gregory. It appears, though, that the in-
itiation of all such actions occurs at the branch
level, and they are generally approved.
Although the Employer's claims operations are
performed with a substantial degree of centralized
control and coordination, we nevertheless do not
agree that these attributes of company structure are
sufficient to defeat the appropriateness of a
separate bargaining unit covering the New York
City branch claims office. Notwithstanding the cen-
tralization in certain areas, it appears clear to us
that the Employer's other two branch offices in the
Metropolitan Department are, to a large extent,
separate entities. They are responsible directly and
individually to the department head. Their claims
processing activities are, to a substantial degree,
performed subject only to the supervision of the
local branch manager who is responsible for day-to-
day operations. As indicated above, the great
majority of claims are settled exclusively by the
branch claims office. We have also noted the
absence of any significant amount of temporary in-
terchange among nonsupervisory personnel among
the branch offices. There is likewise no evidence of
any uniformity of wage structure among the three
branches.
In view of the above facts, we are of the opinion
that the Employer's New York Branch office pos-
sesses sufficient autonomy and separate identity to
make it an appropriate unit for collective bargain-
ing. We see no warrant here for departing from our
customary position in such cases.'
As we observed in Utica Mutual, a factually
similar case, "Neither the fact that the regional of-
fices merely implement centrally promulgated poli-
cies, nor the fact that the home office performs a
variety of services in support of regional operations,
nor the fact that the actual activities carried on in
the regional offices are to an extent duplicated, con-
trolled, or assisted by the home office, defeat the
separate identity of the Employer's branch ...
claims offices." The Employer's other arguments in
support of its contention for a departmental unit
have been considered but do not appear to be meri-
torious.
In Case 2-RC-14679, many of the same con-
siderations control in determining whether Newark
and Perth Amboy in the Employer's Middle depart-
ment are separately appropriate for collective-bar-
gaining purposes. The record shows that each of
these branches is separately autonomous in its
operations. Neither reports to the other; there is
separate supervision and virtually no employee in-
terchange.
In view of the foregoing, we find that a unit
limited to the New York City branch office of the
Employer is appropriate for collective-bargaining
purposes; and that two separate units limited to the
Newark and Perth Amboy, New Jersey, branch
claims offices are appropriate for collective bargain-
ing.
We now examine the Employer's contention that
supervisory adjusters should be excluded from any
appropriate units as supervisors within the meaning
of the Act. The Petitioner, although conceding that
certain named individuals are supervisors,
nevertheless maintains that the supervisory ad-
justers are not supervisors within the meaning of
the Act.2
In the New York City branch office there are (ex-
cluding the stipulated supervisors) 13 supervisory
adjusters. Of this number 12 are in the bodily injury
section, and one is in the physical damage section.
The other sections contain no supervisory adjust-
ers.3 The branch office contains approximately 43
adjusters, 6 compensation examiners, and 5 com-
pensation investigators.
The dispute over the supervisory status of super-
visory adjusters centers primarily on the bodily in-
jury section where 12 of the 13 supervisory ad-
justers are located. Seven of these supervisory ad-
a As we noted in Utica Mutual Insurance Company, 165 NLRB 964,
"Since Section 9(b) specifically recognizes the validity of the plantwide
unit, the Board has long held that a unit confined to a single manufacturing
plant of a particular employer is presumptively an appropriate unit....
Moreover, where a district office in the insurance industry possesses the
requisite autonomy, the Board has considered such office as the analogue
of the single manufacturing plant." See, e.g. , Metropolitan Life Insurance
Co (Woonsocket, R. 1.), 156 NLRB 1408. The Employer's reliance on
State Farm Mutual Automobile Insurance Co., 158 NLRB 925, appears
to be misplaced. State Farm is clearly distinguishable, as the record in that
case revealed that day-to-day supervision was exercised on a divisional,
multioffice rather than a branch office basis, and that the various claims
offices lacked sufficient autonomy to be separately appropriate.
z We accept the stipulation reached in Case 2-RC-14651 that certain
named individuals are supervisors within the meaning of the Act.
3 The New York City branch office contains the following sections:
bodily injury , physical damage, workmen's compensation, fire loss, bur-
glary, and subrogation.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
justers each have three adjusters assigned to them,
and one has two adjusters assigned to him. Of the
remaining five supervisory adjusters , two handle
"foreign" claims and do not have any adjusters per-
manently assigned to them . They may, however, as-
sign work to any adjuster in the office . One other
supervisory adjuster plans to retire soon and has no
men assigned to him while he completes his pending
cases. Another supervisory adjuster is new and will
shortly be assigned adjusters . The only remaining
supervisory adjuster , located in the physical
damage section , performs essentially the same work
as his counterparts in the bodily injury section.
For all relevant purposes the Newark and Perth
Amboy offices are similarly structured , although
Perth Amboy is too small to be divided into sec-
tions.
We are of the opinion that all of the supervisory
adjusters in dispute are supervisors within the
meaning of the Act.4 We are aware that the label
"supervisor" in itself is not controlling in deciding
this issue . We have long held that supervisory
status is determined by the actual duties perform-
ed.5 However , it is not necessary to show that an
individual has all the indicia of supervisory authori-
ty; it need only be shown that an individual pos-
sesses one or more of the indicia listed in the statu-
tory definition to bring him within the scope of that
definition.6
The record is clear that the supervisory adjusters
responsibly direct the work of the adjusters as-
signed to them . When a claim is received by the of-
fice, it first goes to a supervisory adjuster who
establishes a "reserve " for the claim . He then as-
signs it, using his discretion, to any of the adjusters
assigned to him . At this time the supervisory ad-
juster gives directions to the adjuster with respect
to what he wants done in connection with the claim.
These instructions are often detailed . The adjusters
are expected to comply with the instructions given
them and failure to do so may result in disciplinary
action.
Further , in any case which requires a settlement
in excess of an adjuster's settlement authority, it is
necessary to secure the approval and authorization
of the supervisory adjuster. Regardless of the ad-
juster 's opinion on the value of the claim, the
judgment of the supervisory adjuster is controlling.7
It appears to us that the nature of the direction
exercised by the supervisory adjusters is of a
responsible rather than a routine nature. Thus,
although the amount of'actual direction performed
4 We are, however, unable to adopt the Employer's contention that all
regular adjusters should be excluded from the unit because they are
managerial employees . We reach this result for the reasons set forth in
Lumberman 's Mutual Casualty Co. of Chicago, 75 NLRB 1132.
5 Cooke & Jones, Inc., 146 NLRB 1664.
6 Clark-O'Neill, Inc., 147 NLRB 370.
by a supervisory adjuster will vary depending on
the experience and skill of the adjusters and the
value of the claim , the supervisory adjuster is ulti-
mately responsible for all the cases assigned to him.
The evidence before us reveals that often when
directing the settlement of an important case, the
supervisory adjuster will independently establish
the most appropriate course of action and will then
require the adjuster to proceed in accordance with
that judgment . These directions appear to be much
more than ministerial or routine in nature.
In addition to their power to responsibly direct
work, supervisory adjusters also have the power to,
and do in fact , effectively recommend raises and
promotions . Gregory testified in this connection
that he "can't possibly review all of the files that are
assigned to each one of these men [adjusters], and
I have to rely upon the supervisory adjuster's
recommendations, because he is more intimately in-
volved on a daily basis , as contrasted to my periodic
review ." Further, Petitioner concedes that in late
1965 Gregory indicated to the supervisory ad-
justers that they could and should make such
recommendations . Notwithstanding Petitioner's
contention that these recommendations are no
longer solicited , the transcript is replete with exam-
ples of recently written recommendations placed in
the adjuster ' s personnel file and which have been
favorably acted upon.
Both in the areas of work direction and effective
recommendation of personnel action , the same fac-
tors which lead us to conclude that supervisory ad-
justers possess these powers in the New York City
branch appear to be equally present in Newark and
Perth Amboy.8
The question of whether supervisory adjusters
possess any of the other indicia of supervisory
status set forth in the Act is in sharp dispute. How-
ever , in view of our foregoing conclusions , we need
not resolve these credibility issues. It is clear that
supervisory adjusters possess at least two substan-
tial indicia of supervisory status, and this is suffi-
cient to exclude them from the unit.
There remains for consideration only the
question of whether Lillian Simmons is a claims ad-
juster and hence to be included in the New York
City unit. We find that Simmons is an office clerical
and therefore should not be included in the unit.
On the basis of the foregoing and the entire
record in this case , we find that the following con-
stitute units appropriate for purposes of collective
bargaining within the meaning of Section 9 (b) of the
Act.
In this regard it is pertinent to note that , where adjusters generally
have about $250 in settlement authority , the settlement authority of super-
visory adjusters is substantially higher , generally ranging between $2,500
and $3,500.
6 Unlike New York City where the practice was for written recommen-
dations for salary increases to be submitted , in these two branches it ap-
pears that such recommendations were made orally.
CONTINENTAL INSURANCE COMPANY
(1) All New York City branch claims adjusters,
examiners , and investigators , excluding office, cler-
ical, managerial , confidential , and professional em-
ployees, and guards, supervisory adjusters, and
other supervisors as defined in the Act.
(2) All Newark branch claims adjusters, ex-
aminers, and investigators , excluding office, cleri-
cal, managerial , confidential , and professional em-
9 Election eligibility lists , containing the names and addresses of all
eligible voters in the respective units, must be filed by the Employer with
the Regional Director for Region 2 within 7 days from the date of this
Decision and Direction of Elections . The Regional Director shall make
these lists available to all parties to the elections No extension of time to
603
ployees, and guards, supervisory adjusters, and
other supervisors as defined in the Act.
(3) All Perth Amboy branch claims adjusters,
examiners , and investigators , excluding office, cler-
ical, managerial , confidential , and professional em-
ployees, and guards, supervisory adjusters, and
other supervisors as defined in the Act.
[Direction of Elections 9 omitted from publica-
tion.]
file these lists shall be granted by the Regional Director except in extraor-
dinary circumstances . Failure to comply with this requirement shall be
grounds for setting aside the election or elections whenever proper objec-
tions are filed Excelsior Underwear Inc., 156 N LRB 1236