Metropolitan Life Insurance Co.

National Labor Relations Board - Board Decisions

Jun 25, 1964

147 N.L.R.B. 688 (N.L.R.B. 1964)

688 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD
. NOTE.-We will notify any of the strikers • above-referred to if presently serving
in the Armed Forces of the United States of their right to reinstatement upon applica-
tion as above in accordance wth the Selective Service Act and the Universal Military
Training 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, 24 School
Street , Boston , Massachusetts , Telephone No. 523-8100 , if they have any question
concerning this notice or compliance with its provisions.
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO. Case No. 1-RC-7730. June 25,
1964
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer S., Anthony
di Ciero. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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].
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 em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The appropriate unit :
The parties disagree as to the geographic scope of the unit and the
unit placement of insurance consultants. In all other respects, the
parties agree as to the composition of the unit. The Petitioner has
requested a unit of insurance agents, including insurance consultant,
at the Employer's district office in Holyoke, Massachusetts, and at any
office which may be administratively detached from the Holyoke of-
fice. The Employer contends that the appropriate unit should en-
compass either (1) all of the Employer's offices in the United States;
(2) all offices in its northeastern territory; or (3) all its offices in the
State of Massachusetts. The Employer also would not include in-
surance consultants in a unit with other insurance agents.
The Employer and the Union stipulated that the record in this pro-
ceeding would consist of the records and exhibits (with certain minor
147 NLRB No. 84.
METROPOLITAN LIFE INSURANCE COMPANY 689
changes) of prior proceedings involving the same parties and identical
issues. In these cases,' we found, inter alia, that a single district office
and any offices administratively detached therefrom would be ap-
propriate for purposes of collective bargaining. We further found
that insurance consultants may properly be included in a unit of
insurance agents. Therefore, as the instant record is virtually the
same record as was before us in these prior proceedings, we reach the
same result here.
In so finding, however, we note the recent decision of the U.S.
Court of Appeals for the First Circuit in Metropolitan Life Insurance
Co. v. N.L.R.B., 327 F. 2d 906 (C.A. 1). In that case, the court stated
that it was "handicapped . . . by the Board's failure to articulate
specific reasons for its unit determination" (327 F. 2d at 909), and
concluded that in finding appropriate -a unit limited to the insurance
agents working in a single district office the Board gave controlling
weight to the extent of the union's organization, contrary to the man-
date of Section 9(c) (5) of the Act. With all due deference to the
Court of Appeals for the First Circuit, we submit that our representa-
tion decision in that case articulated the reasons supporting our unit
finding and that the decision itself was not controlled by the extent of
the union's organization. We note also that the First Circuit's decision
conflicts with,an earlier decision of the Fourth Circuit (N.L.R.B. v.
Quaker City Life Ins-crane' Company, 319 F. 2d 690), and also with
subsequent decisions of the Third and Sixth Circuits in cases virtually
identical with that before the First Circuit (Metropolitan Life In-
surance Co. v. N.L.R.B., 328 F. 2d 820 (C.A. 3) ; Metropolitan Life
Insurance Co. v. N.L.R.B, 330 F. 2d 62 (C.A. 6). However, in the
event that the reasoning underlying our representation decisions may
have been misunderstood, we shall set forth in detail the factors and
considerations which lead us to conclude that a unit limited to the Em-
ployer's district office in Holyoke, Massachusetts (together ' with any
offices which may be administratively detached from the Holyoke of-
fice), is appropriate for the purpose of collective bargaining.
In the instant proceeding, the Respondent and the Union have
stipulated that the facts with respect to the geographic scope of the
unit are identical to those established in a prior proceeding involving
the same parties, Metropolitan Life Insurance Co., 138 NLRB 565.'
The Respondent's operations asp set forth therein are as follows :
The Company is engaged in the sale and issuance Hof various types of
insurance policies and does business throughout the United States
1Metropolitan Life Insurance Company, 138 NLRB 565, 144 NLRB , 149, and Case No.
13-R'C-9130 , an unpublished decision issued on August 22, 1963.
S This is the representation decision which was ' upheld by the Third Circuit in its
Metropolitan decision , supra, 328 F. 2d 820.
756-236-65-vol . 147-45
690 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
and Canada. It maintains its principal office in New York, New York,
and, for administrative purposes, it has divided its offices throughout
the United States into 14 territorial divisions. Each such division is
headed by a superintendent of age; ncies who reports directly to a
company vice president. The district office sought to be represented
here by the Union is included in Respondent northeastern territory,
which encompasses the States of Maine, Vermont, New Hampshire,
Massachusetts, Rhode Island, Connecticut, and most of New York
State.
The Company's business operations are highly centralized, and
policies and procedures are established at the home office which
governs the management of the district office and the duties and func-
tions of the agents. The superintendent of agencies, whose office is
located in New York, has the responsibility for seeing that the offices
in his territory operate in accordance with these company direc-
tives, and in the course of his duties, the superintendent of agencies
makes periodic visits to the offices in his territory.
Each district office has a manager in charge, who is the immediate
supervisory authority over the agents in the office. Agents are re-
quired by company regulations to perform all their work through
and subject to the general supervision and direction of the manager of
the district office to which they are assigned. The manager normally
solicits applications for openings in his district, and, although he does
not have the authority to hire an individual applicant, he may recom-
mend that such action be taken. In carrying out his function as a
recruiter, the manager accepts the prospective agent's application,
conducts a personal interview, and orders a retail credit and medical
report. The application, together with the manager's recommenda-
tion, is then forwarded to the superintendent of agencies in New York
who makes the final determination. New agents receive their initial
training in New York and are then assigned to a district office- where
they receive additional training under the guidance and direction of
the manager and assistant manager. Although the agent spends the
greater part of his time in his assigned territory selling industrial
and other types of.insurance, he is required to report to the district
office twice a week and whenever the manager so directs. One day
each week is devoted to a general meeting, at which the manager ex-
plains to his agents the` latest company directives. The manager
regularly reviews the agent's performance and although he has no
authority to terminate an agent's appointment, the manager may ac-
cept the agent's resignation, if, tendered, or he may recommend- to- the
superintendent of agencies that the agent be terminated. The man-
ager may bider an audit of the agent's accounts whenever he deems it
METROPOLITAN LIFE INSURANCE COMPANY 691
necessary and, in the event of a deficiency of $75 or more in the
agent's accounts, the manager is required to suspend him until further
notice.
All labor relations policies are established at the home office and all
agents are subject to the same wage policies, employee benefits, and
working conditions. All bidding on job openings is limited to the
agents of the particular district office where the opening occurs. There
is virtually no interchange or tranfser of agents among the various
district offices and there is no business or social contact among agents
except on the individual district office level. There is no history of
collective bargaining affecting the employees involved- in the instant
proceeding.
These facts demonstrate that each district office is a separate ad-
ministrative entity through which the Company conducts its business
operations. Thus, the district office is a distinctive administrative sub-
division created by the Company for the purpose of carrying on its
business in the most efficient manner; each office operates in many
respects as a complete, self-contained, and autonomous unit; there is
separate immediate control and supervision by the district manager in
each office; there is virtually no transfer or interchange of employees
among offices; and the agents within each office enjoy common work-
ing conditions. As the individual office is thus appropriate, and as no
labor organization is seeking a broader unit, we find that the Holyoke,
Massachusetts, district office constitutes an appropriate unit for the
purposes of collective bargaining. N.L.R.B. v. Quaker City Life Ins.
Co., 319 F. 2d 690 (C.A. 4) ; Metropolitan Life Insurance Company v.
N.L.R.B., 328 F. 2d 820 (C.A. 3) ' 3
This is not to say, of course, that a number of units larger than
the one herein found appropriate would not also be appropriate. To
the contrary, we have found that various groupings of district offices,
if based on cogent geographic considerations, are appropriate for the
purposes of collective bargaining and have directed elections in such
units where the petitioning union has so requested 4 Moreover, it is
clear that,' when we give effect to the union's request in determining
which one of several overlapping appropriate units of different sizes
should be certified, we are not allowing ourselves to be controlled by
3 The record does - not indicate whether the Employer maintains any detached offices
which are under the administrative control of the Holyoke district office . However, we
consider such offices to be merely an extension of the office from which they are detached
and hence we would include any such detached offices in the unit herein found appropriate.
See Metropolitan Life Insurance Company, 138 NLRB 734, 736.
4 See the following Metropolitan Life Insurance Company cases : 138 NLRB 565 (2 dis-
trict offices in Wilmington, Delaware) ;''138'NLRB 514 (6 district offices in Cleveland,
Ohio, and 3, suburban offices) ; 138 NLRB 734 ( 1 district office in Sioux City, Iowa, and
2 detached offices ) ; 144 NLRB 149 ( 33 district offices in Chicago , Illinois ). And see
Equitable Life Insurance Company, 138• NLRB 529 ( 2 district offices in 'Cleveland and a
detached office in Lorain , Ohio).
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
r
I
the extent of the union's organization, in violation of Section 9(c) (5)
of the Act. For that section prohibits only the establishment of a
bargaining unit which would not be appropriate when judged by
traditional criteria.,' Inasmuch as either a single district office or a
grouping of such offices where they are geographically related would
be appropriate under traditional criteria, to grant the union's request
for one or the other of these otherwise appropriate units does not
violate Section 9 (c) (5).6
We have also included in the unit herein found appropriate a class
of employees known as Metropolitan insurance consultants (MIC's).
Our finding in-this regard is based upon the evidence adduced in prior
cases involving this employer (Metropolitan Life In.swrance Company,
144 NLRB 149, and Case No. 13-RC-9130 (unpublished)) which
the Employer and the Union have incorporated by reference into this
proceeding. The parties agreed that, with minor'changes, the factual
and legal issues regarding the MIC's were essentially similar to those
in these earlier cases. This evidence establishes that the MIC's are
engaged principally in the sale of insurance in amounts exceeding
$1,000. They sell personal accident and health, business, and group
life insurance, pension plans, and estate planning coverage whereas
regular and office account agents are principally engaged in the sale
of what is generally termed "industrial" insurance. Generally, the
MIC's and other agents have the same supervision; wages and other
fringe benefits are similar for both. Ninety-five percent of all MIC's
were formerly employed as regular or office account agents. Based
upon the line of progression from agent to MIC, the frequent contact
.between the two groups, and their similar supervision, we find that
a community of interest exists between the MIC's and the other agents
which warrants their inclusion in the unit?
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for collective-bargaining purposes
within the meaning of Section 9 (b) of the Act :
5 The vice intended to be cured by Section 9(c) (5) was, in the words of Senator Taft,
the use of extent of organization "where all valid tests fail to give the union what it
desires ." 92 Cong. Rec. 6860; 2 Legislative History of the LMRA, 1947 , 1625. It is
settled law, however , that extent of organization may legitimately be a factor in a Board
unit determination, so long as it is not controlling . H. Rept. 245 on H.R . 3020, 80th
Cong., 1st secs ., 1 Leg. Hist . LMRA 328-329 ; N.L.R.B. v. Quaker City Life Insurance
Company; 319 F. 2d 690, 693-694 (C .A. 4) ; Metropolitan Life Ins. Co : v. N.L.R.B., 328
F. 2d 820, 826-827 (C.A. 3 ), Company petition for certiorari filed April 8, 1964 ( No. 982,
October term 1963).
6 We have often stated that it is our policy not to compel a labor organization to seek
representation in a larger unit unless the unit requested is itself inappropriate . See, e.g.,
Dixie Belle Mills, Inc., 139 NLRB 629 , 631 ; P. Ballantine & Sons, 141 NLRB 1103, 1107.
Bagdad Copper Company, 144 NLRB 1496; Gordon Mills, Inc., 145 NLRB 771 . For the
reasons stated above, however, this is a far cry from our giving controlling weight to the
extent of the union's organization.
7 Metropolitan Life Insurance Company, 144 NLRB 149 ; 146 NLRB 967.
HOLIDAY INN OF CHARLESTON 693
All Metropolitan insurance consultants, canvassing, regular, and
office account agents attached to the Employer's district office in
Holyoke, Massachusetts, and to any office which may be detached from
the Holyoke office, but excluding all independent agents, retired agents,
managers, assistant managers, cashiers, clerical employees, secretaries,
professional employees, guards, watchmen, and all supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
Stanton Enterprises , Inc., d/b/a Holiday Inn of Charleston and
Hotel & Restaurant Employees and Bartenders International
Union, AFL-CIO, Local No. 128 . Case No. 9-CA-2905. June 25,
1964
DECISION AND ORDER
On January 7, 1964, Trial Examiner Arthur E. i eyman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint,
a.nd recommending dismissal of the complaint, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and finds merit in the exceptions of the General Counsel.
Accordingly, the Board adopts the findings of the Trial Examiner
only to the extent that they are consistent herewith.
While we agree with the Trial Examiner that the Respondent
violated Section (a) (1) of the Act, we do not agree with his view
that the violation was only "technical." As we view the credited testi-
mony on the record, the Respondent's conduct was in flagrant dis-
regard of the employees' statutory rights and was expressly designed
to ferret out those employees who were supporting the Union's orga-
nizational campaign.
147 NLRB No. 81.