Metropolitan Life Insurance Co.

National Labor Relations Board - Board Decisions

Sep 25, 1950

91 N.L.R.B. 473 (N.L.R.B. 1950)

In the Matter Of METROPOLITAN LIFE INSURANCE COMPANY and UNITED
OFFICE AND PROFESSIONAL WORKERS OF AMERICA, CIO
Case No. 2-CA-992.-Decided September 25,1950
DECISION AND ORDER
On May 4, 1950, Trial Examiner Robert L. Piper issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.,
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed.2 The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and adopts the findings, conclusions, and recommendations of the Trial
Examiner insofar as they are consistent with this Decision and Order.
1. The Trial Examiner found, and we agree, that the Respondent
refused to bargain with the Union in violation of Section 8 (a) (5)
and 8 (a) (1) of the Act.
' The Respondent, relying on N. L. R . B. v. Postex Cotton Mills, Inc., 181 F. 2d 919
(C. A. 5), May 5, 1950 , contends that the Board had . no authority to use its processes in
behalf of the Union at a time when it was affiliated with the CIO and the latter was not in
compliance with Section 9 (h) of the Act. For the reasons stated in J. H ., Rutter-Rex
Manufacturing Company , Inc., 90 NLRB 130, this contention is rejected . See also West
Texas Utilities Co. Inc. , 184 F. 2d 233 (C. A. D. C.), July 10, 1950.
2 The Trial Examiner properly granted the General Counsel 's motion to strike the affirm-
ative defenses in the Respondent 's answer which attack UOPWA 'S compliance with Section
9 (h) of the Act . Sunbeam Corporation, 89 NLRB 469 . See N . L. R. B. v. Greensboro
Coca Cola Bottling Co., 180 F. 2d S40 (C . A. 4), March 6, 1950. The Trial Examiner
also properly rejected the Respondent's offer of additional proof in support of its con-
tention that the Union was not in compliance and that the Union ' s president , while tech-
nically complying by filing the affidavit required by Section 9 (h), had in fact filed a false
affidavit. American Seating Company, 85 NLRB 269. In this connection , the Respondent
contended that by changing Section 203 . 13 of its Rules and Regulations the Board in effect
overruled its line of decisions on the litigability of compliance with Section 9. The change
in question does not disturb the Board's established rule that compliance is an adminis-
trative matter not subject to collateral attack . Metropolitan Life Insurance Company,
90 NLRB 935 . In any event , we are satisfied that UOPWA has effected proper com-
pliance within the meaning of the Act . Equitable Life Insurance Company, 90 NLRB
No. 282.
91 NLRB No. 68.
473
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In reaching this conclusion, we rely on the following facts :
On July 15, 1949, the Union, which was at that time affiliated with
the CIO, won Board-directed elections 8 in two separate units com-
prising the Respondent's insurance agents employed in the New York
metropolitan area and in the State of New Jersey. On October 7,
1949, the Union was certified by the Board as exclusive bargaining rep-
resentative for these units. On October 10, 1949, the Union, by letter,
requested the Respondent to meet for the purpose of collective bargain-
ing. On October 14, 1949, the Respondent, also by letter, denied this
request on the ground that the Union had allegedly failed to come into
compliance with the provisions of Section 9 (h) of the Act.4
However, at the hearing the Respondent contended that because of
an alleged schism in the Union, a substantial doubt arose as to the
identity of the union which represented the Respondent's employees;
that a question concerning representation therefore exists ; and that,
under these circumstances, there can be no valid basis for finding a
refusal to bargain.
The Trial Examiner found-that the facts adduced by the Respond-
ent at the hearing were insufficient to constitute evidence of a
schism.. We agree with this finding. Moreover, even if the testimony
were sufficient to support a schism finding, it is clear in any event that
there was no schism on October 14, 1949, the date of the original re-
fusal to bargain, and that the existence of a schism at a later date could
not excuse the refusal to bargain on October 14. Under the circum-
stances of this case, therefore, we do not have to decide whether a
schism in the bargaining representative at the time of the refusal to
bargain excuses such refusal. For these reasons, it seems clears that
the schism allegations cannot affect our conclusions as to this phase
of the case.
Accordingly, we find that the Respondent by refusing to bargain
collectively with the Union as the exclusive bargaining representative
of the employees in the appropriate units, violated Section 8 (a) (5)
and 8 (a) (1) of the Act. -
2. After the hearing in this case, Insurance and Allied Workers Or-
ganizing Committee, CIO, herein called IAWOC-CIO, filed a motion
'Metropolitan Life Insurance Company , 83 NLRB 1044.
" In the representation cases resulting in the certification of the Union , the Respondent
made similar contentions which the Board rejected . Metropolitan Life Insurance Com-
pany , 86 NLRB 428 . At the hearing in this case, the Respondent also contend that it
should not , because of its refusal to bargain with UOPWA-CIO, be ordered to bargain
with what it alleges is a different Union-UOPWA unaffi liated-which resulted from
UOPWA's expulsion from the CIO on March 1, 1950. The Board and 'the courts have
rejected like contentions in the past (N. L. R. B. v. Harris-Woodson Co. Inc., 179 F. 2d
720 (C. A. 4), Jan . 30, 1950 ) ; the Board has rejected this contention even where the change
in affiliation of the certified union occurred before the original refusal to bargain (Wall.
green Company, 44 NLRB 1200.).
METROPOLITAN LIFE IlNSURANCEI COMPANY 475
to intervene so as to urge (1) that.the record be reopened to permit
IAWOC-CIO to produce evidence of a "genuine schism" within the
certified representative, and (2) that, if such schism is proved, it
would not effectuate the purposes of the Act to direct the Respondent
to bargain with UOPWA "until the doubt as to the identity of the
certified bargaining representative can be resolved". The Respond-
ent acquiesced in the motion "so far as it seeks to reopen the record
for the purpose of submitting additional evidence to prove that a sub-
stantial schism has developed within the UOPWA". UOPWA op-
posed the motion, disputing the factual allegations recited therein,
and contending that it is untimely, and made by a labor organization
which is not a party to the. proceeding, does not itself claim any inter-
est, and "has no standing to make any motion herein".
It appears from the motion that the principal incidents relied on
by IAWOC-CIO as evidence of schism occurred between February
25, 1950, and March 2, 1950. The hearing before the Trial Examiner
was held on March 21, 1950, and it is clear that the proffered evidence
with respect to such incidents was available at the time of- the hear-
ing. No plausible explanation is now offered for the failure of the Re-
spondent to produce this evidence, or for the failure of IAWOC-CIO
to use it as a basis for a. motion to intervene at the time of the hearing,
which had been called to its attention. Under the circumstances, we
shall deny the motion as untimely.
Moreover, even assuming the timeliness of the motion and the ex-
istence of the schism alleged therein, we find no merit in the Respond-
ents' contention that because of such schism it would not effectuate
the purposes of the Act to issue our normal bargaining order.
A bargaining order being the normal remedy for a violation of
Section S (a) (5) of the Act, the Board, with judicial approval, has
held that the policies of the Act will best be effectuated by directing an
employer to bargain with the representative of the employees, upon
request, even though that representative, for whatever reasons, may
have lost its majority status after the employer's refusal to bargain.;
As the Supreme Court stated in the Franks " case:
6 Karp Metal Products Co. Inc., 42 NLRB 119 , 51 NLRB 621 ( Supplemental Findings of
Fact and Recommendation ) ; N. L. R. B . v. Karp Metal Products Co. Inc. , 134 F. 2d 954
(C. A. 2), cert. denied 322 U. S. 728; N. L. R. B. v. Franks Bros. Co. Inc., 321 U. S. 702,
affirming 1.37 F. 2d 989 (C. A. 2), enforcing 44 NLRB 898; N. L. R. B. v. Swift & Co.,
162 F. 2d 575 (C. A. 3) ; Lancaster Foundry Corp., 82 NLRB 1255, 1257; The Mengel
Company, 80 NLRB 70.5 ; American Laundry Machine Co., 76 NLRB 981; Marshall Bruce
and Company, 75 NLRB 90; Toledo Desk & Fixture Co ., 75 NLRB 744 ; Craddock-Terry
Shoe Corporation, 73 NLRB 1339 ; Robeson Cutlery Co. Ine ., 67 NLRB 481 ; Wilson & Co.,
67 NLRB 662 ; Semi -Steel Casting Co., 66 NLRB 713 ; .Hughes Tool Co ., 50 NLRB 981, 985.
N. L. R. B. v. Franks Bros. Co. Inc. , 321 U. S. 702.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
One of the chief responsibilities of the Board is to direct such
action as will dissipate the unwholesome effects of violations of
the Act . . . That determination the Board has made in this
case and in similar cases by adopting a form of remedy which
requires that an employer bargain exclusively with the particular
union which represented a majority of the employees at the time
of the wrongful refusal to bargain despite the union's subsequent
failure to retain its majority. The Board might well think that
were it not to adopt this type of remedy, but instead order elec-
tions upon every claim that a shift.in membership had occurred
during proceedings occasioned by the employer's wrongful refusal
to bargain, recalcitrant employers night be able by continued
opposition to union membership indefinitely to postpone per-
formance of their statutory obligation. In the Board's view,
procedural delays fairly to determine charges of unfair labor
practices might in this way be made the occasion for further pro-
cedural delays in connection with repeated requests for elections,
thus providing employers a chance to profit from a stubborn
refusal to abide by the law. That the Board was within its
statutory authority in adopting the remedy which it had adopted
to foreclose the probability of such frustrations of the Act seems.
too plain for anything but statement. (Emphasis added.)
The Respondent , although not questioning the above Board doc-
trine, urges that because in representation cases the Board holds a con-
tract or certification no bar to a representation petition where it ap-
pears that a schism exists in the incumbent union, the Board should,
tinder similar circumstances , decline to issue a bargaining order in an
unfair labor practice case. We do not agree. To withhold a bar-
gaining order because of the occurrence of a schism in the ranks of the
certified union after the refusal to bargain, would afford employers
"a chance to profit from a stubborn refusal to abide by the law." More-
over, as the Board stated in the Karp Metal Products case ( supra),
it is impossible "to disentangle other factors from the discouraging
effects" of an employer 's unfair labor practices . Any successful schism
coming at such a time may well be attributed , at least in part, to a
respondent 's prior refusal to bargain. Had this Respondent bar-
gained with the. Union so that the Union had the status of a going
collective bargaining concern, that factor-regardless of other factors
here which we are not permitted to consider-would normally have
militated against any successful schism.
The argument based on the Board's treatment of schism in repre-
sentation cases overlooks a basic difference between the nature and
purpose of a representation case and of an unfair labor practice pro-
METROPOLITAN LIFE INSURANCD COMPANY 477
ceeding. In representation cases the Board is primarily concerned
with "the desires of the employees" as to their bargaining representa-
tives-a matter which an election is designed to determine-while in
it case involving a refusal to bargain "one of the chief responsibilities
of the Board is to direct such action as will dissipate the unwholesome
effects of violations of the Act". The issuance of a remedial order
at this time would not preclude IAWOC-CIO or any other union
from seeking a redetermination of representatives at an appropriate
time.' As we stated in a recent decision : $
We do not mean to imply that because the Respondent has un-
lawfully refused to bargain with the Union, it must deal exclu-
sively with that labor organization in perpetuity. We do say that
the order tobargain must be given effect for a reasonable period of
time in which it can be given a fair chance to succeed. After such
a reasonable period, the Board will, in a. proper proceeding and
upon a proper showing, take steps to ascertain again the em-
ployees' choice of a bargaining representative. However, until
the Respondent has expunged the effects of its illegal refusal to
bargain by first according the Union the bargaining rights which
it had illegally withheld from that organization, we do not reach
the stage of redetermination of representatives.
For the above reasons, we conclude that it will best effectuate the
policies of the Act to require the Respondent to bargain collectively
with the Union, upon re*quest.9
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Metropolitan Life Insur-
4 As stated by the Court of Appeals, Ninth Circuit, in N. L. R. B. Y. Andrew Jergens
Company, 175 F. 2d 130, at page 135:
The fact that the Board has exercised its remedial discretion in a manner that mili-
tates against a present majority of the bargaining unit does not, according to the
Franks case, involve any injustice to the employees who wish a different arrangement.
"For a Board order which requires an employer to bargain with a designated union
is not intended to fix a permanent bargaining relationship without regard to new
situations that may develop" . . . "After such a reasonable period the Board may,
in a proper proceeding and upon a proper showing take steps in recognition of changed
situations which might make appropriate changed bargaining relationships" . . . To
this we might add that Section 9 (c) of the Labor Management Relations Act of 1947
expressly extends the right to question a particular union's certification to .. . an
employee or group of employees or any individual or labor organization acting in their
behalf . . . and 'also to an employer.
R Lancaster Foundry Corporation, 82 NLRB 1255, 1257.
9 As more than 12 months have expired since the election in this case (See Fruitvale
Canning Company, 85 NLRB 684), we see no need to pass upon the finding of the Trial
Examiner with respect to the application of Section 9 (c) (3) to the facts of this case.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ante Company, New York, N. Y., and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Office and Pro-
fessional Workers of America, as the exclusive representative of all
agents of the Respondent employed in the State of New Jersey and
all agents of the Respondent employed in the New York metropolitan
area, respectively, including canvassing, regular, and office account
{gents, but excluding independent agents, retired agents, ordinary
representatives, managers, assistant managers, cashiers, clerical em-
ployees, secretaries, professional employees, guards, watchmen, and all
supervisors.
(b) In any other manner interfering with the efforts of said Union
to negotiate for or represent the employees in the aforesaid unit as
exclusive bargaining agent.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Office and Pro-
fessional. Workers of America, as the exclusive representative of all its
employees in the aforesaid appropriate units with respect to rates of
pay, wages, hours of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its offices in New York City and in the State of New
Jersey copies of the notice attached hereto,and marked Appendix A.1e
Copies of said notice, to be furnished by the Regional Director for the
Second Region shall, after being duly signed by the Respondent's rep-
resentative, be posted by the Respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days there-
after, inconspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply therewith.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
10 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice before the words : "A Decision and Order " the words
"A Decision of the United States Court of Appeals Enforcing."
METROPOLITAN LIFE INSURANCE' COMPANY 479
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT engage in any acts in any manner interfering with_
the efforts Of UNITED OFFICE. AND PROFESSIONAL WORKERS OF'
AMERICA, to negotiate for or represent the employees in the bar-
gaining units described below :
WE WILL BARGAIN collectively, upon request, with the above-
named union as the exclusive bargaining representative of all
employees in the bargaining unit described below with respect to
wages, rates of pay, hours of employment, or other terms or con-
ditions of employment, and if an understanding is reached, em-
body such understanding in a signed agreement. The bargaining
units are :
All agents of the Respondent employed in the State of New
Jersey, and all agents of the Respondent in the New York metro-
politan area, respectively, including canvassing, regular, and office
account agents, but excluding independent agents, retired agents,
ordinary representatives, managers, assistant managers, cashiers,
clerical employees, secretaries, professional employees, guards,
watclm7en, and all supervisors.
METROPOLITAN LIFE INSURANCE COMPANY,
Erploye'r.
Dated -------------- By -------------- --------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. James P. Alfieri, for the General Counsel.
llcv srs. Burton..1. Zorn, Harry D. Guthrie, and Thomas F. Delaney, of New
York, N. Y., for Respondent.
Newberger, Shapiro, Robinoivitz and Boudin, by Mr. Leonard B. Boadin, of
New York, N. Y., for the Union.
STATEMENT OF THE CASE
Upon in amended charge fled on October 25, 1949, by United Office and Pro-
fessional Workers of America (hereinafter called the Union), affiliated with the
Congress of Industrial Organizations (hereinafter called the C. I. 0.), the General
Counsel of the National Labor Relations Board (hereinafter called the Board),
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director for the Second Region (New York, New York), issued
a complaint dated December 7, 1949, against Metropolitan Life Insurance Com-
pany (hereinafter called Respondent), alleging that Respondent had engaged
and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act as amended (hereinafter called the Act), 61 Stat. 136,
29 U. S. C., Supp. II, Secs. 141 et seq. Copies of the charges, the complaint, and
a notice of hearing were duly served upon Respondent and the Union.
.
With respect to the unfair labor practices, the complaint alleged in substance
that at an election conducted on or about October 7, 1949, under the supervision
of the Board's Regional Director for the Second Region, a majority of the em-
ployees within appropriate bargaining units, described below, designated the
Union as their representative for the purposes of collective bargaining; that at
all times after that date the Union was the exclusive representative of the
employees in the appropriate units; and that on and after October 14, 1949,
Respondent refused to bargain collectively with the Union as the exclusive rep-
resentative of the employees in the said units.
Respondent's answer in substance admitted the allegations of the complaint,
but denied the commission of any unfair labor practices, and affirmatively al-
leged that the Union was not in compliance with Section 9 (h) of the Act. While
denying that the election was held on October 7, the answer admitted that
it was held on July 15, 1949, and that the Union was certified by the Board
as the exclusive representative of the employees in the appropriate units. The
answer further admitted an exchange of letters subsequent to the certification,
wherein the Union requested Respondent to bargain, and Respondent refused,
on the grounds that the Union was not in' fact in compliance with Section 9 (h)
of the Act.
Pursuant to notice a hearing was held in New York City on March 21, 1950,
before the undersigned, Robert L. Piper, the Trial Examiner duly designated
by the Chief Trial Examiner. All parties were represented by counsel, partici-
pated in the hearing, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence hearing upon the
issues.
At the opening of the hearing, the General Counsel moved to strike the affirma-
tive defense from the answer on the grounds both that the question had been
decided by the Board in its representation decision between the same parties
(86 NLRB 428), and that compliance with Section 9 (h) of the Act is an ad-
ministrative matter to be determined by the Board and is not subject to attack
by the parties to the proceeding. This motion was granted.' Thereupon, Re-
spondent moved to amend its answer to include two additional affirmative de-
fenses : one, that the Union, as certified by the Board and as the charging party,
no longer existed since its expulsion from the C. I. 0., and two, that a substan-
tial doubt existed as to the identity of the union which represented Respondent's
employees in the appropriate units. This motion was granted. Ruling was
It is, of course, well established that parties may not relitigate in an unfair labor
practice proceeding involving charges of refusal to bargain issues decided in a prior repre-
sentation proceeding. Clark Shoe Company, 88 NLRB 989, and numerous cases cited
therein. It is equally established that compliance with Section 9 is an administrative
matter not subject to attack by the parties. N. L. R. B. v. Greensboro Coca-Cola Bottling
Co., 180 F. 2d 840 (C. A. 4, March 6, 1950 ) ; Prudential Insurance Company of Annerica, 80
NLRB 1583; Procter d Gamble Company, 78 NLRB 1043; Craddock-Terry Shoe Corpora
tion, .70 NLRB 842.
METROPOLITAN LIFE INSURANCE, COMPANY 481
reserved on Respondent's motion at the close of the hearing to revoke the Board's
certification of the Union as bargaining representative and to dismiss the com-
plaint, and is disposed of by the findings and conclusions hereinafter made. All
parties waived oral argument. Thereafter, pursuant to leave granted to all, the
Union filed a brief which has been considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF PACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation, maintaining its principal office at
New York, New York, engaged in the sale and issuance of life insurance policies
and annuities throughout the United States and the Dominion of Canada. On
December 31, 1948, Respondent had in excess of 32,700,000 policyholders and in
excess of 39 billion dollars of life insurance in force. Respondent invests its
funds in real estate, real estate mortgages, and Government, municipal, and cor-
porate bonds, and makes extensive use of the mails and other instrumentalities
of interstate commerce. It has been found by the Board to be engaged in inter-
state commerce? Respondent admits, and I find, that it is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LA73OR PRACTICES
A. The appropriate units
The complaint alleged, Respondent admitted, and I find, that all agents of
Respondent employed in the State of New Jersey and all agents of Respondent
employed in the New York metropolitan area, respectively, including canvassing,
regular, and office account agents, but excluding independent agents, retired
agents, ordinary representatives, managers, assistant managers, cashiers, clerical
employees, secretaries, professional employees, guards, watchmen, and all super-
viors as defined in the Act, constitute separate appropriate units for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
B. Representation by the Union of a majority in the appropriate units
On July 15, 1949, in elections held under the direction and supervision of the
Board's Regional Director, Respondent's employees in the aforesaid appropriate
units designated the Union as their exclusive bargaining representative. On
October 7, 1949, the Board certified the Union as the exclusive bargaining repre-
sentative of the employees in the aforesaid units. On the basis of these facts,
I find that the Union on October 7, 1949, was the duly designated exclusive rep-
resentative of the. employees in the appropriate units for the purposes of collec-
tive bargaining within the meaning of the Act.
2 Metropolitan Life Insurance Cosnpany, 83 NLRB 1044 and 64 NLRB 396.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The refusal to bargain
The facts are substantially undisputed. On October 10, 1949, the Union by
letter requested Respondent to meet for the purpose of collective bargaining. On
October 14, 1949, Respondent refused to negotiate with the Union on the grounds
that the Union was not in fact in compliance with Section 9 (h) of the Act,
although this issue had been decided by the Board against Respondent in the rep-
resentation decision, supra. Respondent did not bargain with the Union. Effec-
tive as of March 1, 1950, the C. I. O. expelled the Union from its ranks on the
grounds of pro-Communist domination or leadership. Subsequently the C. 1. O.
chartered organizing locals with an objective of securing membership among
Respondent's employees represented by the Union. A group of dissidents joined
the rival organization. The Union expelled three officers-elect from its Local 30
for leadership in this movement. Local 30 was composed of the Union's member-
ship in the New York metropolitan area.
During the hearing Respondent offered additional proof obtained after the
representation case in support of its contention that the Union was not in com-
pliance. This was tendered as an offer of proof because of my ruling striking
Respondent's affirmative defense that the Union was not in compliance: Because
compliance with Section 9 (h) is not a litigable issue,'` proof on such issue was
not relevant. Although the matter of compliance was disposed of by the Board
in the representation case, supra, Respondent urged two additional reasons for
its reconsideration in the instant case : one, that Respondent was offering addi-
tional proof not available at the representation hearing: and two, that effective
January 1, 1950, the Board had amended Section 203.13 of its Rules and Regula-
tions, which amendment made the proferred proof material. With respect to
Respondent's first reason, it is of course established that an exception occurs to
the rule, that parties may not relitigate at a subsequent unfair labor practice
hearing issues litigated at a representation hearing, when newly discovered evi-
dence is offered which is shown to have been unavailable at the time of the rep-
resentation hearing. The exception is in accord with well-known principles of
law. This exception to the rule, however, does not affect substantive principles
applicable, and, under the Board's established policy, compliance with Section 9
th) of the Act remains an administrative matter not subject to attack by the
parties.
Respondent offered additional proof that the Union's president, while tech-
nically complying by filing the affidavit required by Section 9 (h) of the Act,
was in fact a Communist and the affidavit was false and fraudulent. Facts
analogous to Respondent's contention, admittedly a serious charge, have been
considered by the Board in two recent cases, which are binding upon me. The
Board said "It is not the purpose of the statute to require the Board to inves-
tigate the'authenticity or truth of the allidavits which have been filed. Persons
desiring to establish falsification or fraud have recourse to the Department of
Justice for a prosecution under Section 35 (a) of the Criminal Code.".' For
these reasons, Respondent's offered proof was not relevant.
With respect to Respondent's second reason, concerning the amendment to-
Section 203.13 of the Board's Rules and Regulations, Respondent offered to prove
that the Union had circumvented the filing requirements of Section 9 (h) by
changing the titles of three vice presidents in order to avoid the necessity of their
filing as officers under the terms of the Act.
° See eases cited at footnote 1, supra.
American Seating Co., 85 NLRB 269 ; Craddock-Terry Shoe Corporation, 76 NLRB 842.
METROPOLITAN LIFE INSURANCE COMPANY 483
Respondent urged that the amendment to Section 203.1.3 indicated that the
Board had changed its policy in regard to compliance in such a manner as to
overrule its decision in the representation case and make circumvention of
compliance a subject of litigation by the parties. Section 203.13 of the Rules
and Regulations of the Board is entitled: "Compliance with section 9 (f), (g),
and (h) of the act." Effective as of January 1, 1950, Section 203.13 was amended
by adding the following subsection :
(C) The term "officer" as used in subsection (B) hereof shall mean any
person occupying a position identified as an office in the constitution of the
labor organization ; except. however, that where the Board has reasonable
cause to believe that a labor organization. has omitted from its constitution
the designation of any position as an office for the purpose of evading or
circumventing the filing requirements of Section 9 (h) of the Act, the Board
may, upon appropriate notice, conduct all investigation to determine the
facts in that regard, and where the facts appear to warrant such action
the Board may require affidavits ' from persons other than incumbents of
positions identified by the constitution as officers before the labor organiza-
tion will be recognized as having complied with Section 9 (h) of the Act.
Respondent contended this change in the Rules made material its offered
proof regarding circumvention by the Union with respect to its vice presidents.
While it is true that this amendment to the Rules was adopted after the Board's
decision in the representation case, Respondent's argument fails because the
subject of the section is compliance. The amendment to the section specifically
spells out certain additional steps which the Board may require in order to
effect compliance with the requirements of Section 9 (h). This change in com-
pliance requirements could have no effect upon the Board's stated policy that
compliance is an administrative matter not subject to attack by the parties.
While Respondent's allegations do fall within the purview of the amended rule,
the subject remains one of compliance and as such falls within the substantive
rule established by the Board.
Turning to Respondent's affirmative defenses that the Union as certified no
longer existed and that a substantial doubt existed as to the identity of the
labor organization which represented the employees, Respondent's position in
effect is one of confession and avoidance. Respondent's answer admits refusing
to bargain with the Union. The facts supporting its amended affirmative de-
fenses (lid not arise until some months after the refusal to bargain. Respondent
therefore is in the position of having admitted refusing to bargain during this
interim period (aside from its contentions 'with respect to compliance which
have been considered), but urges that no order compelling bargaining or a find-
ing of refusal to bargain after the occurrences of disaffiliation and defection
should issue.
Respondent's first defense is that the Board certified as exclusive bargaining
representative the Union, C. I. 0., and since its expulsion from the C. I. 0., the
certified organization no longer exists: Such a contention is not novel. The
Board has found it to be without merit, and has said that a change in name
and national afffiiation does not invalidate the certification of a union nor excuse
the employer from the duty to bargain.' Respondent's second defense, that sub-
5 American lfaieai-ian. Steamshih Company, 10 NLRB 1335 ; Walgreen Company, 44 NLRB'
1.200: Chesapeake G Potomac Telephone Co., 89 NLRB 231 ; ef. lllinois Bell Telephone Co.,
88 NLRB 1171.
917572-51-vol. 91 32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial doubt exists as to the identity of the Union which represents the em-
ployees, presents a more difficult question. This defense in effect amounts to
raising a question of representation. In order to properly evaluate it, certain
fundamental doctrines must be considered. Primarily, it is well established by
numerous decisions that a certification of a union operates as a bar to a ques-
tion of representation under Section 9 (c) of the Act for a reasonable period,
normally found to be 1 year.' This is true even when a bona fide doubt exists
as to the majority status of the union. A refusal to bargain during such reason-
able period is violative of the Act.' The underlying policy of stability in labor
negotiations and collective bargaining is too well known to need elaboration.
As a corollary to this principle, it is an unfair labor practice for an employer
to bargain with a union when question of representation exists, such action
amounting to domination or support of a labor organization proscribed by Sec-
tion S (a) (2),e and conversely, it is not an unfair labor practice for an employer
to refuse to bargain when a question concerning representation exists.°
Under the above principles Respondent's refusal to bargain within the reason-
able period after the certification clearly would be violative of the Act. 'How-
ever, there have been exceptions to the established rule where, under certain
unusual circumstances, a question of representation has been found to exist
within the period when it is normally barred. The exception arose in those cases
where a schism occurred within the ranks of a union, and all or a majority col-
lectively left the union and joined another, and in other cases where the union
either abandoned its representative status or was voted out of existence by its
members. In those situations; the Board found that in spite of the normal bar to
a question of representation by a certification, a serious doubt had arisen as to
the identity of the labor organization which the employees desired to represent
them, and therefore a question concerning representation existed.10 Under sim-
ilar unusual circumstances, the sane exception to the general rule has been found
with respect to situations where a contract normally operates as a bar to a
question of representation 11
It appears clear from an analysis of these cases that the facts adduced by
Respondent do not fall within the exception. A mere defection or change in
affiliation does not amount to a schism which raises a substantial doubt as to
the identity of the labor organization which the employees desire. Even a defec-
tion by a majority does not create this situation, as pointed out in the Mengel
case, supra.
The difference between the two situations is well explained in the Carson
Pixie Scott case, supra, where the Board pointed out that if a majority of the
employees individually abandon the union it raises no substantial doubt as to its
identity, but if all or a majority collectively through organized action change
their affiliation, a substantial doubt does exist. In all -of the cases where the
Board found that a substantial doubt existed which raised a question of repre-
6 N. L. R. B. v. Worcester Woolen Mills Corporation, 170 F. 2d 13 (C. A. 1, 1948) ; The
Mengel Company, 80 NLRB 705; Vulcan Forging Company, 85 NLRB 621.
° The Mengel Company, supra.
'N. L. R. B. v. Arrowhead Rubber Company, 146 F. 2d 749 (C. A. 5, 1945) ; Pacific
Manifolding Book Co., Inc., 64 NLRB 1257; Fogel Refrigerator Company, 82 NLRB 150.
° Norwood Sash & Door Manufacturing Company, 42 NLRB 678 ; Crosby Chemicals, Inc.,
85 NLRB 791 , and cases cited therein.
10 Burlington Mills, Inc., 43 NLRB 426; De Soto Paint & Varnish Company, 44 NLRB
217; Robert Scholze Tannery, 44 NLRB 562; Vulcan Corporation, 51 NLRB 4; Carson
Pixie Scott & Company, 69 NLRB 935; Jasper Wood Products Company, Inc., 72 NLRB 1306.
11 Elizabethtown Water Company, 84 NLRB 845; Michigan Bell Telephone Company, 85
NLRB 303, and cases cited therein.
METROPOLITAN LIFE INSURANCE' COMPANY 485
sentation in spite of the bar, all or a majority of the employees collectively
changed their affiliation and the new union claimed to represent the employees.
No such situation exists here. No proof was adduced to show that anyone else
claimed to represent the employees, and the record in fact reveals only a slight
percentage of defections. By no stretch of the imagination could it be said that
a substantial doubt exists as to the identity of the labor organization which
the employees desire to represent them. Respondent failed to prove a schism
of the nature heretofore found to raise a question of representation which results
in an exception to the rule that a certification bars such a question for a reason-
able period.
Respondent argues that if the Union had-not been affiliated with the C. I. 0.,
perhaps the employees would not have voted for it. The weakness of this argu-
ment is apparent. Speculation is not sufficient to overcome the bar. Perhaps
the best analysis of this problem is found in the Michigan Bell Telephone case,
supra., wherein the Respondent urged that a change in affiliation gave rise to a
question of representation, overcoming the bar thereto caused by the existence
of a contract. As clearly pointed out by the Board, a change in affiliation does
not have the effect of creating a substantial doubt, in the absence of the other
factors. While it is true that such a change in affiliation has had the effect in
some cases of creating a schism of the type heretofore discussed, which does raise
a doubt as to the identity of the union, mere affiliation or change therein does
not create a question of representation. It is interesting to note that the Board
points out that in all of the cases found to be exceptions to the general rule,
another labor organization challenged the representative status of the cer-
tified or contracting union. For the reasons discussed, Respondent has failed
to establish the existence of a question of representation.
Still another reason exists which nullifies Respondent's defense of a question
of representation. This is Section 9 (c) (3) of the Act. It may be that this
reason is even more compelling than those heretofore discussed, because, although
I have found no decision directly in point, this section of the Act may well have
the effect of nullifying any exceptions to the rule that a certification operates as
a bar to a question of representation for a reasonable period. Section 9 (c) (3)
provides: "No election shall be directed in any bargaining unit or any subdivision
within which, in the preceding twelve-month period, a valid election shall have
been held. . . ." By this amendment, Congress apparently Incorporated into the
Act the Board's established rule that a certification operates as a bar to a question
concerning representation for 1 year. However, it is to be-noted that this section
contains no exceptions. In all probability, the exception developed in the cases
of substantial doubt as to identity no longer applies. It should be noted that all
of the cases heretofore cited reiterating the exception to the rule of bar since the
passage of the Act do so only in connection with contracts alleged to be a bar, and
niot certifications. The Board's consideration of the effect of Section 9 (c) (3) in
regard to another principle lends support to this construction. The Board has
found that Section 9 (c) (3) has eliminated the exception to the bar to a question
of representation heretofore found necessary by the Board in those situations
where a showing was made within 6 months after certification that the number
of employees in the appropriate unit had more than doubled.'
Upon the entire record, and for the reasons heretofore advanced, I find that
the Union was, on October 7, 1949, and at all times thereafter, and now is, the ex-
elusive representative of the employees in the aforesaid appropriate units for the
^2 11"alnu-t Ridge 3fanufactarialg Company, Inc., 80 NLRB 1196; Fedders-Quigan Corpo-
ration, 88 NLRB 512.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining within the meaning of the Act, and that Re-
spondent, by refusing to negotiate with the Union on October 14, 1949, and there-
after, has refused to bargain collectively with the Union, and has thereby inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section ill, above, occurring in con-
nection with the operations of Respondent described in Section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing coun-
merce and the free flow of commerce.
V. THE REMEDY
Because I have found that Respondent has engaged in an unfair labor practice,.
I shall recommend that Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Having found
that Respondent has refused to bargain collectively with the Union as the exclu-
sive representative of its employees in the appropriate units, I shall recommend
that Respondent upon request bargain collectively with the Union.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I snake the following :
CONCLUSION OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
2. All agents of Respondent employed in the State of New Jersey, and all.
agents of Respondent employed in the New York metropolitan area, respectively,
including canvassing, regular, and office account agents, but excluding indepen-
dent agents, retired agents, ordinary representatives, managers, assistant Inana-
gers, cashiers, clerical employees, secretaries, professional employees, guards,
watchmen, and all supervisors as defined in the Act, constitute separate appro-
priate units for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.'
3. The Union was, on October 7, 1.949, and at all times thereafter, and now is,
the exclusive bargaining representative of the employees in the aforesaid appro-
priate units for the purpose of collective bargaining within the meaning of Section
9 (a) of the Act.
4. By failing and refusing to bargain collectively with the Union as the ex-
clusive representative of its employees in the appropriate units, Respondent has
engaged and is engaging in unfair labor practices within thelneaning of Section 8
(a) (5) of the Act.
5. By said acts, Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, and has
engaged and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volunie.]