Equitable Life Insurance Co.

National Labor Relations Board - Board Decisions

Mar 1, 1967

163 N.L.R.B. 192 (N.L.R.B. 1967)

192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 front the receipt of this Decision, what steps
Respondent has taken to comply herewith.24
choosing, and to engage in any other concerted
activities for mutual aid or protection, or to refrain
from any or all such activities.
NEIL AMANA FOOD SERVICE,
INC.
(Employer)
"'' In the event Ilutt this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify said
Regional I)ireetor, in writing, within 10 days from the date of this
Order, what steps 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
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT refuse to recognize and bargain with
Food Store Employees Union Local #347,
Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, as the exclusive
representative of the employees in the appropriate
bargaining unit described below.
WE WI1.1. NOT coercively interrogate or poll our
employees concerning their union activities or
sentiments ; nor will we threaten our employees with
reprisals because of their union activity; nor will we
assist our employees in the withdrawal of their union
designations.
WE WILL NOT discourage membership in the above-
named or an y other labor organization of our
employees, by discharging any of our employees
because of their concerted or union activities, or in
any other manner discriminate against them in regard
to their hire or tenure, or any term or condition of
em ploy Inc lit.
WE WILL, upon request, bargain collectively with
the above-named Union as the exclusive
representative of all employees in the bargaining unit
with respect to rates of pay , wages, hours of
employment , and other conditions of employment,
and , if an understanding is reached , embody such
understanding in a signed agreement . The bargaining
unit is:
All our production employees employed at our
place of business in Charleston , West Virginia,
including clerks , weighers, wrappers,
meatcutters , maintenance men, truckdrivers,
and helpers , excluding office clerical employees,
salesmen, salesladies , guards , professional
employees , the store manager, and all other
supervisors as defined in the Act.
WE WILL offer immediate and full reinstatment to
Raymond L. Scarberry and make him whole for any
loss of pay lie may have suffered because of the
discrimination against him.
WE WILL N OT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to join or assist a ration, to bargain
collectively through representatives of their own
Dated By
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United States
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
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, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3686.
Equitable Life Insurance Company and
Insurance Workers International Union,
AFL-CIO. Case 8-CA-2954.
March 1, 1967
SUPPLEMENTAL DECISION
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On September 11, 1962, the National Labor
Relations Board issued a Decision and Direction of
Election in Case 8-RC-4590 ,' finding appropriate a
unit of debit insurance agents at the Respondent's
two district offices located in Cleveland , Ohio, and
its detached office in Lorain , Ohio. After an election
duly conducted on September 28, 1962, the Regional
Director for Region 8, on October 5, 1962, certified
Insurance Workers International Union , AFL-CIO,
as the exclusive bargaining representative of
employees in the appropriate unit . Contending that
the Board ' s unit finding was erroneous , and in order
to test the validity of the certification, Respondent
Company thereafter refused to bargain.
On January 29, 1963, Trial Examiner A. Norman
Somers issued an Intermediate Report in the above-
entitled matter , finding that the Respondent had
violated Section 8(a)(5) and ( 1) of the National Labor
Relations Act, as amended , by refusing to bargain
with the Union . The Trial Examiner ' s findings were
adopted by the Board in its Decision and Order
' Equitable Life Insurance Company, 138 NLRB 529.
163 NLRB No. 28
EQUITABLE LIFE INSURANCE CO. 193
which issued on March 25 , 1963 .2 Thereafter, the
Board , on November 5, 1963 , filed with the United
States Court of Appeals for the Sixth Circuit a
petition for enforcement of its Order . While the
petition was pending before the Sixth Circuit Court
of Appeals , the Supreme Court of the United States,
on April 5 , 1965 , handed down its opinion in
N.L.R.B. v. Metropolitan Life Insurance Company,
380 U .S. 438 . The Supreme Court there vacated a
judgment of the Court of Appeals for the First
Circuit , denying enforcement of a Board Decision
and Order , and remanded the case to the Board for
further proceedings "due to the Board 's lack of
articulated reasons for the decisions in and
distinctions among the cases " involving unit
determinations in the insurance industry.
Subsequently , the Board , on February 11, 1966,
issued a Supplemental Decision and Order in the
Metropolitan case,3 in which the Board explicated
the rationale underlying its original unit
determination as well as its general policy for
determining appropriate bargaining units in the
insurance industry.
On May 20, 1965 , the United States Court of
Appeals for the Sixth Circuit entered an order
remanding the instant case to the Board for further
proceedings consistent with the opinion issued by
the Supreme Court in the Metropolitan case, supra.
On September 14, 1966, the Board issued an order
inviting parties to this proceeding to file briefs
directed to the unit issues of this case in the light of
the Supreme Court ' s opinion in the Metropolitan
case, supra , and the Board 's Supplemental Decision
and Order in that proceeding . The Respondent has
filed a brief, which the Board has duly considered.
In accordance with the aforementioned remand
order of the Court of Appeals for the Sixth Circuit
and the prior order by the Supreme Court of the
United States , the Board has reconside_ed its
original decision in the instant case, its earlier
decision in the underlying representation case, and
the entire record in both proceedings , and reaffirms
its original appropriate unit determination and its
finding that the Respondent has refused to bargain
with the Union in the appropriate unit in violation of
Section 8(a)(5) and (1) of the Act.
In the initial representation case, the Board
decided that a unit of the Respondent 's debit
insurance agents at its Cleveland East and
Cleveland West district offices, Cleveland, Ohio,
and its detached office in Lorain , Ohio, was
appropriate . The Respondent contends , basically,
that the Board 's subsidiary finding that each of the
Respondent 's district offices is an inherently
appropriate unit is erroneous , that the grouping of
the offices in the instant case is incongrous and does
not present a reasonable degree of geographical
coherence , and, finally , that the Board's unit
determination herein is based upon extent of
organization , and thus is contrary to Section 9(c)(5)
of the Act.4 We reject these contentions for the
following reasons.
In the Supplemental Decision in Metropolitan Life
Insurance Company, supra , the Board, after
extensive evaluation of the relevant factors,
concluded that the district office is the insurance
industry 's analogue of the single manufacturing
plant , which the Act recognizes as presumptively
appropriate.5 The Board reaffirmed this policy
determination in the recent The Western and
Southern Life Insurance Company case ,6 finding
appropriate separate units of debit insurance agents
at that Company's McKeesport , Pennsylvania, and
Wilkinsburg , Pennsylvania , district offices. A
reexamination of the record herein reflects that the
Respondent 's district office organization is similar in
significant respects to that of the district offices in
the Metropolitan and Western and Southern cases,'
and for the reasons stated in these decisions, we
reject the Respondent 's contention that a unit of
debit agents at each of its district offices is not
inherently appropriate.
The Board further held, in the initial
representation case, that while the individual district
offices may constitute a separate appropriate unit,
such a finding should not preclude the grouping of
such offices in a single unit where such grouping is
justified by cogent geographic considerations.
Accordingly , the Board found that a unit comprising
all the Respondent ' s offices in a separate and
distinct geographic area, namely, the city of
Cleveland , was appropriate , and, further , that since
the Respondent 's detached office in Lorain, Ohio,
was administratively linked to the Cleveland West
office, it was properly includable in the unit . We find
no merit in the Respondent 's contention that the
grouping in this case is artifical, is incongrous, and
lacks -geographic coherence. As we stated in
' 141 NLRB 718.
a Metropolitan Life Insurance Company (Woonsocket , R 1.), 156
NLRB 1408
4 Section 9(c)(5) provides : "In determining whether a unit is
appropriate for the purposes specified in subsection (b) the extent
to which the employees have organized shall not be controlling "
Section 9(b)
8 163 NLRB 138
7 For example , the district manager exercises immediate
supervisory authority over the agents assigned to his office; the
sales force of such district manager operates in its own distinct
geographical area , there is virtually no interchange, or transfer, of
agents between the district offices , and there is no bargaining
history in any significant sense In the instant case, we note,
additionally , that the district manager normally recruits new
agents, he accepts applications from and interviews prospective
agents, and forwards their applications, together with his
recommendations, to the home office, if an applicant is hired, he
is assigned to the district office, where he is given an intensive 13-
week program under the guidance and direction of the district
manager and one of the office's staff managers ; the district
manager may recommend the discharge of an agent, and the
district manager may order an audit of the agent's accounts
whenever he thinks it is necessary, and in the event of an
apparent shortage in the agent 's accounts, the district manager is
instructed not to allow the agent to handle cases until the matter
is thoroughly investigated.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Equitable Life Insurance Co.,8 inclusion of a
detached office derives from the fact that a detached
office is administered as part of the district office, as
in the instant case, and, hence , is appropriately
included with its parent office even though the two
offices may be some distance apart.
Finally, we find no merit in the Respondent's
contention that our unit finding herein is based on
extent of union organization , and, therefore , contrary
to Section 9(c)(5) of the Act. It is now well
established that Section 9(c)(5) was intended to
preclude the Board from basing its unit
determination solely on extent of organization where
other relevant criteria of appropriateness are absent.
It was not intended to invalidate units which, as
here, qualify under other tests of appropriateness.9
In view of the foregoing , and on the basis of
the record as a whole, the National Labor Relations
Board reaffirms its Order of March 25 , 1963, in this
proceeding.
8163 NLRB 138, fn 2 See , also, Metropolitan Life Insurance
Company (Woonsocket, R I), supra, fn 22
" N.L.R B v Metropolitan Life Insurance Co., supra,
Metropolitan Life Insurance Co (Woonsocket , R I.), supra, fn 20,
The Western and Southern Life Insurance Co , supra
Lever Brothers Company and International
Chemical Workers Union, Local No. 452.
Case 21-CA-6891.
March 1, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 26, 1966, Trial Examiner Howard
Myers issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, that the conduct complained of was an
isolated incident, and that the violations found did
not warrant the issuance of a remedial order, and
recommending that the complaint be dismissed in its
entirety, as set forth in the Trial Examiner's
Decision attached hereto. Thereafter, the General
Counsel filed exceptions with a supporting brief, and
the Respondent filed cross-exceptions and a reply
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
I Member Brown sees no need for, and therefore does not loin
his colleagues in, directing the remedial order in the special
circumstances of this case
2 As to Respondent 's posting of a notice disavowing any
involvement in the "claimed" interference with the "Shop
Steward in the Machinist Section of the Mechanical
Department," we do not feel that this action was sufficient to
overcome the adverse effects caused by the unfair labor practice
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 cross-
exceptions, the brief and reply brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, with the following modifications:
We agree with the General Counsel that, under
the circumstances of this case, a remedial order
should issue.' Foreman Koster's conduct in calling
together the employees under him, and telling them
in no uncertain terms that they should change their
shop steward or things will get rough for them,
strikes at the very heart of established collective-
bargaining relationships. In the overwhelming
majority_ of collective-bargaining agreements, the
foreman-steward relationship is generally the first
stage of the grievance procedure, and, as the Act
envisages, each party is entitled to the unrestricted
services of its representative. We are not unmindful
of the fact that there is but one incident before us.
However, not only would Koster's actions directly
affect Blankenship's relations with the employees he
represented in the machinist section as steward, but
could very likely have a direct impact on the
relationship between other stewards and the
employees they represent. In our opinion, the
dangers implicit in Koster's conduct can only be
remedied by the issuance of a cease-and-desist order
with the required notice posting.2
The Effect of the Unfair Labor Practice: Upon
Commerce
The activities of Respondent s ;t forth in section
III of the Trial Examiner's Decision, occurring in
connection with its operations described in section I
of the Trial Examiner's Decision, have a close,
intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
The Remedy
It having been found that Respondent has
engaged in certain unfair labor practices prohibited
by Section 8(a)(1) and (2) of the Act, it will be ordered
to cease and desist therefrom and take specific
The notice does no more than disavow involvement in conduct not
recognized to have occurred, was not posted until November 15,
6-1/2 months after the incident, and only after Respondent was
notified of the General Counsel's intention to issue a complaint in
this case It also appears that the notice was only posted in the
machinist section, while it would appear from the record that
employees in other sections were aware of the occurrence of the
illegal conduct
163 NLRB No. 29