Provident Life and Accident Insurance Co.

412 DECISIONS OF NATIONAL. LABOR: RELATIONS BOARD Brotherhood. of Carpenters and Joiners : of America, AFL-CIO; Local 633, United Brotherhood of Carpenters and Joiners of America , AFL-CIO; and z Local A77, Um ud Brotherhood of Carpenters and Joiners of America, AFL-CIO, are Labor organizations within the meaning of Section 2 (5) of the Act. 3. By maintaining and enforcing an agreement, understanding, hiring arrangement, ,and other unlawful practices with Merritt-Chapman & Scott Corporation, which require membership in or clearance by a labor organization as a condition of em- ployment, Respondent District Council, Local 377, and Local 633 have engaged in ;and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) ^A) and Section 8 (b) (2) of the Act. 4. By causing or attempting to cause Merritt -Chapman & Scott Corporation.to discriminate against Harold A. Hanlon , applicant for employment , in violation of Section 8 (a) (3) of the Act, Respondents District Council, Local 377, and Local 633 have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and Section 8 (b) (2) of the Act. 5. By imposing intraunion disciplinary action, fines, and penalties upon Harold A. Hanlon, Henry H. Michel, and Michael J. Lesko because they filed charges with, and furnished information against Respondent Unions to, the National Labor Relations Board in the exercise of the rights guaranteed in Section 7 of the Act, which impaired their opportunities for employment, Respondents District Council, Local 377, and Local 633 have restrained and coerced and are restraining and coercing employees, and have thereby engaged in and are engaging in unfair labor practices .within the meaning of Section 8 (b) (1) (A) of -the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Provident Life and Accident Insurance Company and Insurance Agents' International Union, AFL-CIO, Petitioner. Case No. 21-RC-4695. June 28,1957 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 Fred W. Davis, .hearing officer. 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 Leedom and Members Murdock and Jenkins]. Upon the entire record in this case, the Board finds : 1.,'The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. The Petitioner seeks a unit of all full-time and part-time in- surance agents in the western area of the Employer's railroad department. The Employer contends that the agents are independent contractors and not employees within the meaning of the Act. The Employer is engaged in selling life, accident, and health in- surance throughout the United, States. The agents involved herein sell accident and health insurance to employee groups, principally 118 NLRB No. 53. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY 413 railroad employees, throughout western United States, including the States of Texas, New Mexico, Arizona, California, Nevada, Utah, Wyoming, and Idaho. The principal office for the Employer's. western department is located in San Francisco, California, and is under the direction of the west coast manager. The west coast manager devotes 90 percent of his time to processing claims made upon the Employer by policyholders and the remainder of his time recruiting and training new agents and assisting and directing the work of other agents. The only other management representative in the western area is a supervisor of group plans, located in Los Angeles, California. He likewise trains, directs, and assists those agents located in the Los Angeles metropolitan area. The Employer furnishes to all agents materials in the form of manuals, pamphlets, and other literature designed to assist them in selling insurance. When an agent is hired, he signs a contract which may not be assigned without the consent of the Employer. This contract pro- vides, inter alia, that: The agent may sell insurance only according- to premium rates, classification of risks, and practices of the Com- pany; he may not accept risks of any kind or make, alter, or discharge contracts, or waive forfeiture or obligate the Company, except as specifically set forth in the contract; the Company may withdraw any forms or types of policies and reserves the right, under the contract, to change its manual and premium rates; the agent must report immediately the transaction of any business to the home office of the Employer, and must remit any premiums to the Company before the end of the month in which such collections are made; if an agent fails to collect the initial or renewal premiums he shall return the- policy to the Company, and in the event that he fails to do so may be required to pay the pro rata earned premium whether or not it may be collected; if an application for insurance is rejected, the agent shall return to the applicant the sum that is due him; and the agent shall maintain sufficient records to assure that all requirements of the contract are met and shall furnish an indemnity bond, with sureties approved by the Company for the faithful accounting and transmission of moneys to the Company. The contract may be termi- nated by either party upon 20 days' notice to the other. Upon termi- nation of the contract all commissions are also terminated. The commission rate is established by the Employer. A terminated agent may not continue to use his license, which is required by State law, until he obtains appointment with another company. He is not, how- ever, limited to soliciting the Employer's policyholders after his termination, nor is he limited to selling insurance for the Employer but may sell policies for other insurance companies except that they may not sell health and accident insurance of the type sold by the Employer to anyone who is insured by the Employer. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The agents are also provided with a manual which, in addition to prescribing premium rates, contains detailed and extensive instruc- tions regarding, inter alia, procedures to be followed by the agents in writing insurance applications, dealing with the policyholders re- garding claims, selection of risks, collection of premiums, and customer relations generally.' Agents do not receive a minimum salary but are compensated by commission based upon a percentage of the policyholder's premium fee. At times, however, as required by the Employer, an agent or group of agents may be required to canvass all the employees of a particular employer with whom the Employer is trying to place a group plan. In such cases the agents are paid on a salary basis. Agents are not reimbursed for expenses incurred by them in writing insurance. Agents may seek business anywhere they choose and set their own work schedules and vacations. Although the Employer asserts that the agents do not have any established quota of business that they are required to write, the west coast manager testified that he exhorts the agents to increase their volume of business and notifies them of the minimum amount of business that the Employer expects an agent to obtain. Some of the full-time agents have been required to furnish to the Employer weekly activity reports indicating the amount of time. devoted to the soliciting of insurance applications.2 The Em- ployer carries no compensation insurance, nor does it make income tax, social security, unemployment insurance, or other deductions. However, it has in effect a group insurance plan for full-time agents which is financed in part by the Employer. The record reveals one instance, in 1952, when an agent purchased the business of another agent. No other such transaction appears in the record. As the Board has held in many cases, the determination of whether an individual is an independent contractor or an employee is dependent on the common law "right to control" test.' Application of this test requires that we find that an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved but also the manner and means to be used to achieve this end. It is sufficient that this right exists, whether or not it is exercised.' Upon consideration of all the foregoing circumstances, and particularly in view of the fact that under their contract of employment, as implemented by the 'Although the Employer contends , in effect, that the instructions in this manual are not mandatory upon the agent , these instructions are in many instances couched in mandatory terms. 2 The record shows that these reports are required only . in those cases where the agent has received advances in money against future commissions. 3 N. L. R. B. v . Phoenix Mutual Life Insurance Co., 167 F . 2d 983, cert. denied 335 U. S. 845. 4 Ibid. - BOB SAUNDERS COMPANY 415 agents' manual, the Employer reserves and exercises the right to con- trol many aspects of their relationship with it and with its policy- holders, actual and prospective, we find that the full-time and part- time agents 5 are not independent contractors but are employees within the meaning of Section 2 (3) of the Acts Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All insurance agents, including full-time and part-time agents in the western area of the railroad department of the Employer, exclud- ing all other employees and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] c We find no merit in the Employer 's secondary contention that, in any event , its part- time agents are not employees , but independent contractors . The record contains no evi- dence that part-time agents are treated differently from full-time agents, except that weekly activity reports are not required from them , they do not devote all of their time to selling insurance, and they are ineligible for participation in the Employer's group insurance ;plan. These circumstances are not sufficient , in'our opinion, to require a different con- clusion as to their status. 6 See Hweet-Orr and Co ., Inc., 117 NLRB 796. We do not believe that the isolated in- stance of the sale of an agency 5 years prior to the hearing herein is a significant factor, standing by itself, pointing to the existence of independent contractor status. Bob Saunders, d/b/a Bob Saunders Company, Petitioner and United Packinghouse Workers of America, Local 78, AFL-CIO. Case No. fO-RM-213. July 1, 1957 SUPPLEMENTAL DECISION, DIRECTION, AND ORDER On January 4, 1957, pursuant to a Board Decision and Direction ,of Election dated December 27, 1956,' an election was conducted herein, under the direction and supervision of the Regional Director for the Twentieth Region, among employees in the unit heretofore found :appropriate. Upon the conclusion of the balloting, a tally of ballots was issued and served upon the parties in accordance with the Board's Rules and Regulations. The tally of ballots shows that there were approximately 65 eligible voters; that 3 votes were cast for, and 10 votes were cast against, the Union; and that 68 ballots were challenged. On January 9, 1957, the Union filed objections to the conduct of the election and to conduct affecting the results of the election. There- after the Regional Director investigated the issues raised by the challenged ballots and the Union's objections; and, on March 15; 1 Not reported in printed volumes of Board Decisions and Orders. 118 NLRB No. 51.