Metropolitan Life Insurance Co.

National Labor Relations Board - Board Decisions

May 13, 1964

146 N.L.R.B. 1577 (N.L.R.B. 1964)

METROPOLITAN LIFE INSURANCE COMPANY 1577
tion in accordance with the Selective Service Act and the Universal Military Train
ing and Service Act of .1948 , 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.
Employees may communicate directly with the Board 's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia , Pennsylvania,
Telephone No. 735-2612, if .they have any question concerning this notice or com-
pliance with its provisions. '
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO. Case No. 7-CA-4461. May 13,
1964
DECISION AND ORDER
On March 12, 1964, Trial Examiner 'Alba B. Martin issued his'
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
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 the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order rec-
ommended by the Trial Examiner and orders that the Respondent,'
Metropolitan Life Insurance Company, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order.
1 In an earlier case involving a similar question , the Board found that the Respondent
violated Section 8(a) (5) by refusing to bargain with the union certified as the exclusive
representative of its employees at its district offices in the Cleveland, Ohio, metropolitan
area . See Metropolitan Life Insurance Company, 141 NLRB 1074 , enfd . 330, F. 2d 62
(C.A. 6).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
At issue in this case is whether Respondent has violated Section 8 (a)(5) and (1)
of the National Labor Relations Act, as amended , 29 U.S.C. 151, et seq., herein called
the Act.. This Decision follows and explains the reasons for my telegram to the
parties on January 3, 1964, granting the General Counsel 's motion for judgment on
the. pleadings and canceling the hearing set for January 6, 1964.
146 NLRB No. 184. '
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's answer did not deny and may therefore be deemed to have admitted I
the allegations of paragraphs 1 through 7 of the complaint . I find , as alleged in
paragraphs 1 through 7 of the complaint , that the charge herein was filed by the
Union on November 15, 1963, and served upon Respondent on or about the same
day; that Respondent is an employer engaged in commerce 3 within the meaning of
Section 2(2) and (6) and (7) of the Act; that the Union, Insurance Workers In-
ternational Union, AFL-CIO, is a labor organization within the meaning of Sec-
tion 2 (5) of the Act; and that Clifton E. Reynolds , second vice president , is a super
-visor of Respondent within the meaning of Section 2(11) of the Act, and an agent
of Respondent.
A. The appropriate unit, the election , the certification , the request
and refusal °
I take official notice that on September 20, 1962, in Case No. 7-RC-5269, the
Board found, as set forth in the footnote,3 agents at the district offices and the de-
tached offices in the greater Detroit area to constitute an appropriate unit for the
purposes of collective bargaining ,' and directed an election in that unit ; that in a
secret ballot election conducted by'the Board on June 28, 1963, a majority of the
employees in said unit selected the Union as their collective -bargaining representative;
that on July. 9, 1963, the Board's Regional Director, on behalf of the Board, cer-
tified the Union as the exclusive collective-bargaining representative of the em-
plovees in said unit.4
Respondent 's answer admitted that on or about July 24, 1963, it received from
the vice president of the Union, Charles G. Heisel, the following letter, dated July
23, 1963, addressed to Respondent's Vice President Reynolds:
As you know, the National Labor Relations Board certified this Union on
July 9, 1963, as the collective bargaining representative for your agents in
the Greater Detroit area. This certification follows the first election in which
these agents have had the opportunity freely and fairly to express their desires
as to union representation . It was the Company conduct which made the
Board set aside an earlier election.
These agents have waited a long time for the Union representation and
collective bargaining they wanted and needed. There can be no question
about the wishes of these employees whose welfare the Company as well as
the Union should be interested in serving. It would be unjustified and un-
fortunate if the Company should further delay or obstruct collective bargaining.
This is formally to request that the Company recognize the Union as the bar-
gaining representative in the Greater Detroit area as certified by the Board.
The Union is ready to meet with you to bargain collectively for an agreement
covering compensation and terms and conditions of employment. Improve-
ments are needed and the negotiations should start immediately as a matter
of justice as well as law.
1 Section 102 . 20 of the Board 's Rules and Regulations , Series 8, as amended . The answer
did not claim that Respondent was without knowledge, and no good cause has been shown
why the undenied allegations of the complaint should not be found to be true.
! Respondent , with Its principal office and place of business In New York, New York, Is
licensed to do business in the 50 States of the United States and Is engaged in soliciting
and issuing ordinary and industrial life, health, accident, and other forms of Insurance.
During the calendar year 1902 Respondent, from Its New York City office, paid claims to
policyholders in the State of Michigan in an amount in excess of $1,000,000. During the
some 12 - month period Respondent received at its New York City office premiums from
policyholders in the State of Michigan in an amount in excess of $1,000,000.
8 The Board found that the following employees of the Employer constituted a unit
appropriate for the purposes of collective bargaining within Section 9(b) of the Act:
All debit Insurance agents, including canvassing , regular, and office account agents of
the Employer selling industrial life insurance and other forms of insurance sold by the
Employer , at the district offices and detached offices in the greater Detroit, Michigan, area,
Including the offices at the following locations In Michigan: Roseville, Livonia, Mount
Clemens and its detached office in Port Huron , Pontiac, Royal Oak, Lincoln Park, and
Dearborn ; but excluding independent agents, retired agents , Metropolitan Insurance con-
sultants, managers , assistant managers, cashiers, clerical employees, secretaries, pro-
fessional employees , guards, watchmen , and all supervisors as defined in the Act.
4 Respondent 's answer admitted that a secret ballot election was conducted in the de-
scribed unit , that the Union won a majority of the votes cast, and that the Regional
Director certified the Union.
METROPOLITAN LIFE INSURANCE COMPANY 1579
The Company can no longer hide behind the plea that a bargaining unit
smaller than state wide in geographic scope can not be appropriate, inasmuch
as this question has now been decided judicially. The Board's legal authority
for finding such units appropriate was expressly upheld by the United States
Court of Appeals for the Fourth Circuit in N.L.R.B. v. Quaker City Life In-
surance Company, Case No. 8871.
Under the circumstances, if you have any concern for the interests and wel-
fare for the Greater Detroit agents , you will reply very promptly with an
acceptable suggestion of a mutually satisfactory time and place for the com-
mencement of negotiations and we can proceed directly to bargaining collec-
tively for a contract which at last will meet the needs and desires of these
Metropolitan agents.
In replying to this letter, as Respondent's answer admitted, Respondent, through
Vice President Reynolds, on July 30, 1963, wrote Heisel:
This will acknowledge your letter of July 23.
As you know, the National Labor Relations Board decided by a vote of
three to two that the unit sought by the Union was appropriate. The Com-
pany's position, with which two members of the Board have agreed, still is
that such unit is inappropriate, and we intend to obtain a court review of the
Board's determination if it becomes necessary to do so.
Under these circumstances, therefore, we must decline to meet with you at
the present time.
In its answer the Respondent admitted that the Union, as the exclusive representa-
tive, has requested Respondent to bargain collectively with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment of the
employees in the certified unit, and that Respondent has refused to bargain collec-
tively with the Union as the representative of the employees in the unit.
B. Procedural matters
Thereupon the Union filed the charge herein on November 15, 1963, and on that
date a copy thereof was served by registered mail upon Respondent. On December
6, 1963, the General Counsel issued a complaint and notice of hearing, setting the
hearing for January 6, 1964, and on or about December 16, 1963, Respondent filed
its answer.
In its answer Respondent alleged two affirmative defenses: (1) the unit set forth
in footnote 3 above and found by the Board to be an appropriate unit was not in
fact an appropriate unit; and (2) in determining this unit the Board, contrary to
the mandate of Section 9(c)(5) of the Act, gave controlling effect to the extent to
which the employees had organized.
As appears from its answer and from its reply letter to the Union quoted above,
Respondent's desire is to test the Board's unit finding in a court review.
On about December 23, 1963, the General Counsel filed, and it was assigned to
me for ruling, a motion for judgment on the pleadings, copies of which he served
upon the parties.
Pursuant to my order to show cause sent to the parties December 24, 1963, re-
turnable by January 2, 1964, the Union filed its own motion for judgment on the
pleadings, urging in substance that the allegations of the complaint be upheld.
Respondent timely filed a statement in opposition to upholding the allegations of
the complaint, and its own motion for judgment on the pleadings urged the dismissal
of the complaint and the revocation of the certification.
All parties having filed motions for judgment on the pleadings, and it appearing
from the pleadings that no issues of fact existed which warranted a hearing, by
telegram to the parties on January 3, 1964, I canceled the hearing, vacated the
notice of hearing, and gave the parties until January 8 to file a brief or request oral
argument before me. Respondent replied by requesting that I consider the briefs
and arguments in the representation case, Case No. 7-RC-5269, which I have done.
C. Decision on the merits
Respondent admits that the Union requested to bargain for the employees in the
certified unit and that Respondent refused to bargain with the Union for them. Re-
spondent has refused to bargain because it disagrees with the appropriateness of the
unit found by the Board to be appropriate. In effect Respondent seeks to relitigate
the unit issue in this complaint case which has already been litigated in the representa-
tion case. Respondent suggests no newly discovered evidence which might have
permitted the relitigation of the unit issue in the complaint case.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The law is settled that the issues raised and determined in the prior representation
case may not be relitigated in the complaint proceeding. Pittsburgh Plate Glass
Company v. N.L.R.B., 313 U.S. 146, 157-158; N.L.R.B. v. American Steel Buck Corp.
227 F. 2d 927, 929 (C.A. 2); N.L.R.B. v. Botany Worsted Mills, 133 F. 2d 876, 882
(C.A. 3); N.L.R.B. v. West Kentucky Coal Company, 152 F. 2d 198, 200-201
(C.A. 6), cert. denied 328 U.S. 866; Quaker City Life Insurance Company, 138
NLRB 61. It is equally clear that as a Trial Examiner of the Board, I am.bound
by the Board's earlier unit determination and the ensuing certification. N.L.R.B. v.
West Kentucky Coal Company, supra, at 201; Air Control Products of St. Petersburg,
Inc., 139 NLRB 413; Esquire, Inc. (Coronet Instructional Films Division), 109
NLRB 530, 539, enfd. 222 F. 2d 255 (C.A. 7).
I therefore find that the certification is binding upon me and is dispositive of the
proceeding at this stage. Accordingly, I conclude that the Respondent's admitted
refusal to recognize and bargain with the Union on and after July 30, 1963, con-
stituted an unfair labor practice violative of Section 8(.a)(5) and (1) of the Act.
D. The effect of the unfair labor practice upon commerce
Respondent's refusal to baragin, set forth above, occurring in connection with
the operations of Respondent set forth above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and tends to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce
THE REMEDY
Having found that Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, I will recommend that it cease
and desist therefrom and (adopting the language prescribed by the Supreme Court
in N.L.R.B. v. Express Publishing Co., 312 U.S. 426, 439) from "in any manner
interfering with the efforts of the [Union] to bargain collectively with [Respondent]"
I will further recommend that Respondent take certain affirmative actions in order
to effectuate the policies of the Act.
Upon the basis of the above, findings of fact, and upon the entire record, in this
and the representation case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the Act.
2. All debit insurance agents, including canvassing, regular, and office account
agents of the Respondent selling industrial life insurance and other forms of in-
surance sold by the Respondent, at the district offices and the attached offices in
the greater Detroit, Michigan, area, including the offices at the following locations
in Michigan: Roseville, Livonia, Mount Clemens and its detached office in Port
Huron, Pontiac, Royal Oak, Lincoln Park, and Dearborn; but excluding independent
agents, retired agents, Metropolitan Insurance consultants, managers, assistant man-
agers, cashiers, clerical employees, secretaries, professional employees, guards, watch-
men, and all supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining.
3. The Union since the date of its certification, July 9, 1963, has been and now
is the exclusive representative of all employees in the aforesaid appropriate unit
for purposes of collective bargaining within the meaning of Section 9(a) of the
Act.
4. By refusing, on and since July 30, 1963, to bargain collectively with the Union
as the representative of the above employees, Respondent has engaged in and is
engaging in unfair labor practices affecting commerce within the meaning of Section
8(a)(5) and (1) andSection2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that Respondent, Metropolitan Life
Insurance Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with Insurance Workers International
Union, AFL-CIO, as the exclusive representative of the employees in the following
appropriate unit:
All debit insurance agents, including canvassing, regular, and office account agents
of the Respondent selling industrial life insurance and other forms of insurance sold
METROPOLITAN LIFE INSURANCE COMPANY 1581
by the Respondent, at the district offices and detached offices in the greater Detroit,
Michigan, area, including the offices at the following locations in Michigan: Rose-
ville, Livonia, Mount Clemens and its detached office in Port Huron, Pontiac, Royal
Oak, Lincoln Park, and Dearborn; but excluding independent agents, retired agents,
Metropolitan Insurance consultants, managers, assistant managers, cashiers, clerical
employees, secretaries, professional employees, guards, watchmen, and all super-
visors as defined in the Act.
(b) In any manner interfering with the efforts of the above-named Union to bargain
collectively with the above-named Company on behalf of the employees in the above-
described unit.5
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the above-named Union as the
exclusive representative of all employees in the appropriate unit, and embody in a
signed agreement or agreements any understandings reached.
(b) Post at its district offices and detached offices in the greater Detroit, Michigan,
area, including all of the offices included in the appropriate unit, copies of the attached
notice marked "Appendix." 6 Copies of such notice, to be furnished by the Regional
Director for the Seventh Region (Detroit, Michigan), shall, after being signed by an
authorized representative of the Respondent, be posted immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within 20 days of the date of
the receipt of this Decision, what steps it has taken to comply herewith.?
Upon the entire record in the instant case and the representation case, and
upon the above considerations, it is further recommended that the General Counsel's
motion for judgment on the pleadings be granted.
"As noted in the section of this Decision captioned "The Remedy" the language of para-
graph 1(b) of the Recommended Order follows that prescribed by the Supreme Court In
the Express case supra, at 439.
6In the event that this Recommended Order be 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."
7In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read: "Notify the Regional Director for the Seventh Region, in writing,
within 10 days from the date of this Recommended 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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Insurance Workers Inter-
national Union, AFL-CIO, as the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any manner interfere with the efforts of Insurance Workers
International Union, AFL-CIO, to bargain collectively as the exclusive rep-
resentative of the employees in the bargaining unit described below.
WE WILL, upon request, bargain with Insurance Workers International Union,
AFL-CIO, as the exclusive representative of all the employees in the bargaining
unit described below with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if an understanding is
reached, embody such an understanding in a signed statement.
The bargaining unit is:
All debit insurance agents, including canvassing, regular, and office ac-
count agents of our selling industrial life insurance and other forms of
insurance sold by us at our district offices and detached offices in the
greater Detroit, Michigan, area, including our offices at the following
locations in Michigan: Roseville, Livonia, Mount Clemens and its detached
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offices in Port Huron , Pontiac , Royal Oak, Lincoln Park, and Dearborn;
but excluding independent agents , retired agents, Metropolitan Insurance
consultants , managers, assistant managers , cashiers , clerical employees,
secretaries , professional employees , guards, watchmen , and all supervisors
as defined in the Act.
METROPOLITAN LIFE INSURANCE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 500 Book
Building, 1249 Washington Boulevard , Detroit, Michigan , Telephone No. 226-3230,
if they have any question concerning this notice or compliance with its provisions.
The Fafnir Bearing Company and International Union , United
Automobile , Aerospace and Agricultural Implement Workers
of America, Local No. 133, UAW, AFL-CIO. Case No. 1-CA-
4077. May 13, 1964.
DECISION AND ORDER
On September 26,1963, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that Respondent
had not violated the Act as alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Trial Examiner's
Decision and briefs in support thereof.'
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 record
in this case, and finds merit in the exceptions of the General Counsel
and the Charging Party. Accordingly, the Board adopts the findings
of the Trial Examiner only to the extent consistent herewith.
The essential facts in this case are not in dispute, and have been
adequately set forth in the Decision of the Trial Examiner. We shall
restate the facts only to the extent required by our disposition of the
case.
Respondent and the Union have been parties to collective-bargaining
agreements since 1944. The agreement in force at the time this dispute
arose contained an incentive wage clause. In substance, this clause
provided for the establishment of standard production rates which,
under the agreement, were supposed to reflect the number of pieces
1 Respondent filed a brief in support of the Trial Examiner's Decision and cross-exceptions
and a brief in support thereof.
146 NLRB No. 179.