The Life Insurance Co. of Virgina

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD striking of Malowany as Malowany was entering the plant on September 13, and Robichaud's throwing a stone at the company truck in June. It is further found that these threats and assaults were occasioned by the fact that the employees against whom they were directed were exercising their protected right to refrain from striking, and in order to coerce or intimidate them into joining the strike. It has also been found that, at the instigation of the Respondent, the pickets frequently after March 19, 1957, impeded and interfered with the employees' ingress to and egress from the Company's plant. In view of the above, it is found that, since about March 19, 1957, the Re- spondent has restrained and coerced the Company's employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(b)(1)(A) of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Chas. Weinstein Company, Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act. 2. Central Massachusetts Joint Board, Textile Workers Union of America, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By restraining and coercing the employees of the Company in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to prove by a fair preponderance of the evidence that the Respondent violated Section 8(b)(1)(A) of the Act by addressing vile, vulgar, or obscene language to employees, applicants for employment, or officers of the Company. [Recommendations omitted from publication.] The Life Insurance Company of Virginia and Insurance Agents International Union, AFL-CIO, Petitioner. Case No. 5-RC- 2403. April 3, 1959 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Sidney Smith, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On September 19, 1958, the Board issued a notice advising the parties that it would hold oral argument and stating that it would, upon application, permit the filing of briefs amici curiae by labor organizations repre- senting insurance agents and by associations of insurance companies. Thereafter the Board, by its Executive Secretary, stated that it would also entertain requests to file briefs amici curiae on behalf of individual insurance companies. On November 6, 1958, the Board heard oral argument. In addition, the Board granted many requests for permission to file briefs. 123 NLRB No. 75. THE LIFE INSURANCE COMPANY OF VIRGINIA 611 The Board has considered the entire record, the briefs of the parties, the other briefs and statements, and the oral argument in this case, and 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 Insurance Agents International Union, AFL-CIO, and its Local No. 27, herein called the Petitioner, seek to represent a unit of weekly premium or industrial debit agents employed by the Em- ployer in its district office in Danville, Virginia. The Employer contends that no unit smaller than companywide or statewide in scope may be appropriate. The agents covered by the petition are employed in the agency department of the Company which is headed by an agency vice presi- dent and organized into four field divisions, three of which are weekly premium divisions and one an ordinary agency division. Each of the weekly premium divisions is headed by a second vice president, who is assisted by a regional director and several field training supervisors, and includes a number of States. The weekly premium division in question includes all district offices in the States of Virginia, Georgia, Alabama, Florida, and Tennessee. In Vir- ginia, the Employer has 254 weekly premium agents distributed throughout 18 district offices. Each district office is supervised by a manager and one or more associate managers, each of whom super- vises a staff of five agents. The duties and general working conditions of weekly premium agents are centrally determined and uniform throughout the State and, so far as possible, throughout the Employer's organization. All agents enjoy the same employee benefits. Each agent is em- ployed under a comprehensive written contract, uniform throughout the Employer's system, which defines his duties and responsibilities and fixes his compensation. Each agent is also furnished a manual of instructions which outlines in detail the procedures and rules which must be observed in the conduct of business by the district offices. Agents are initially recruited by district office managers or associate managers but hiring is subject to home office approval fol- lowing examination of the agent's application and the report of an independent investigation. All agents are eligible to participate in a uniform retirement plan which embraces medical expense insur- ance, group life insurance, and disability income payments. All agents are covered by a uniform vacation policy. The workweek, office hours, and holidays are uniform throughout the field offices and all absences from work are reported to the home office. Promo- tions from agent to associate manager are made by the second vice 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD president in charge of the division and are, where practicable, made: from within the district office where the vacancy exists. Except in rare and extreme cases the discharge of an agent must be approved in advance by the home office. Each agent in the employ of the Employer must be licensed by the insurance department or other regulatory authority of the State in which he is employed. Most States, including Virginia, prescribe. training standards in accordance with State statutes and administra- tive regulations which must be met before an agent may secure a. permanent license. The Employer's training manuals are tailored, to the specific requirements of each State in which business is con- ducted and in Virginia the manual must be approved by and filed'. with the State insurance department. Many States now require. agents to pass written examinations on State insurance statutes and: regulations prior to licensing. While the requirements of the dif- ferent States are varied they are uniform throughout any given State. Localities do not regulate the sale of insurance. All of the Employer's operations are conducted on a State-by-State basis since regulation is on that basis. For premium tax purposes all sales within a State must be accounted for to that State and detailed state- ments must be submitted annually to each State in which business is conducted. Each State requires that insurance policy forms be- filed with its insurance department. It is clear from the foregoing and the entire record in this case. that the unit requested by the Petitioner is based upon the Peti- tioner's extent of organization among the employees of the Employer.. Indeed, the Petitioner candidly concedes this to be so when it states,. as it did at the hearing and in its brief, that it seeks a citywide unit because it lacks facilities to undertake a campaign to organize employees on a broader basis. The Board, however, is precluded by Section 9(c) (5) of the Act from according controlling effect to this factor as the Petitioner is asking it to do here. Chairman Leedom and Member Rodgers reaffirm and adhere to the well-settled Board rule enunciated in Metropolitan Life Insur- ance Company 1 that, in the absence of unusual circumstances, state- wide or companywide units are the only appropriate bargaining units for insurance agents. They note that the Board has in the past found that statewide units of insurance agents of this Employer are appropriate.2 Furthermore, in their opinion the Petitioner has failed to demonstrate that organization of the Employer's industrial agents on a statewide basis is not practicable. Inasmuch as all agents of the Employer who work in Virginia have similar duties and conditions of employment, they find no reason to make an excep-- 156 NLRB 1635. 2 The Life Insurance Company of Virginia, 57 NLRB 279. THE LIFE INSURANCE COMPANY OF VIRGINIA 613 tion in this case. Accordingly, Chairman Leedom and Member Rodgers find that the unit sought by the Petitioner, based as it is upon extent of organization, does not satisfy the Metropolitan Life :standard, and is therefore inappropriate. Member Jenkins is satisfied, as are his colleagues, that the petition -must be dismissed, because to do otherwise would be to make the Petitioner's extent of organization the determinative factor. In these circumstances he finds it unnecessary, however, to decide in this proceeding whether a companywide or statewide or other type unit would be appropriate. Since the unit proposed in this proceeding is not appropriate for purposes of collective bargaining, no question has arisen concerning the representation of employees of the Employer within the meaning •of Section 9(c) of the Act. [The Board dismissed the petition.] MEMBER FANNING, concurring specially : I agree with the dismissal of the petition in this proceeding, but for reasons different from those of my colleagues. Chairman Leedom and Member Rodgers find the unit sought by the Petitioner inappropriate and they would expressly reaffirm and adhere to the "well. settled Board rule enunciated in Metropolitan Life Insurance Company that, in the absence of unusual circum- stances, statewide or companywide units are the only appropriate bargaining units for insurance agents." 3 Member Jenkins dismisses ,on the ground that to do otherwise would be to make the Petitioner's extent of organization determinative. I would not reaffirm the Metropolitan Life Insurance Company decision. In that case, the Board stated that "in the absences of unusual circumstances, the practice of setting up units for insurance agents smaller than State-wide in scope should be avoided." The Board detailed the scope of the organizational efforts taking place at that time among insurance agents, indicated that it was steadily growing, and concluded that the tendency of such organization was toward statewide units. As stated by the Board in that case: Thus, the rapid growth of union organization among insurance agents makes it clearly appear that provisional units less than State-wide in scope are, under ordinary circumstances, unneces- sary to make collective bargaining reasonably possible for them if they desire it.... In the instant case, since the Federation, 3 Although the Board has adhered to the unit rule established in Metropolitan in cases involving industrial insurance agents, it has not applied the rule to other job classifica- tions in the industry . Both clerical employees of life insurance companies and insurance adjusters have been granted elections in citywide units. ( Texas Prudential Insurance Co., 109 NLRB 319, 321 ; and The Travelers Insurance Company, 116 NLRB 387.) 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Independent, and the CIO are all actively engaged in a broad organizational program in Ohio, and since it may reason- ably be anticipated that one of these organizations may in the near future extend its membership to State-wide proportions, we are of the opinion that it will not effectuate the policies of the Act to set up city-wide units for employees of the Company in Ohio at this time. As shown by the record in this case, this 1944 prediction as to the extent of organization among insurance agents has not been fulfilled and that decision, I think it can fairly be said, has been a major obstacle. It appears to me that extent of organization was the con- trolling factor in the Metropolitan Life case. Having in mind the basic policies of the statute as set forth in Section 1, and consistent with Section 9(c) (5), I cannot now reaffirm that decision. Nor would I dismiss this petition, as my colleagues have, on the ground that the Petitioner admitted that it did not have the facilities to organize on a broader basis. If a labor organization's desire to organize on a broader basis were the criterion for finding that a petition seeks an inappropriate unit, the Board would find itself dis- missing petition after petition where the unit requested is less than employerwide, or to carry this concept to its logical conclusion, less than industrywide. Labor organizations are in the business of organizing employees, and it is not fanciful to assume that they de- sire to organize all the employees they can, or, at least, all employees in certain job classifications. That the Board has heretofore given a reasonable interpretation to the extent of organization provision in Section 9(c) (5) is evident in prior decisions where, for example, the Board has held that the fact that a labor organization may have unsuccessfully attempted to organize on a broader basis does not render the smaller unit sought inappropriate when the smaller unit is otherwise appropriate. (See Whittaker Controls Division of Telecomputing Corporation (Lyn- wood Plant), 122 NLRB 624; and The Berger Brothers Company, 116 NLRB 439.) I would apply to units of insurance agents the same criteria of ap- propriateness the Board applies to units in retail establishments, such as the administrative structure of the Employer's operations, geo- graphical separation, centralization of operations, interchange of personnel, and uniform wages, duties, and working conditions. (See, for example, Father c6 Son Shoe Stores, Inc., 117 NLRB 1479.) In the present case, on the facts detailed in the majority opinion I would find that the unit sought does not conform to an admin- istrative division of the Employer's organization, that the operations are highly centralized, and that the wages, duties, and working con- CHESTER CABLE CORP. 615 ditions are uniform as far as possible throughout the Employer's organization . Accordingly, I would and do find that a unit limited to Danville, Virginia, is inappropriate. MEMBER BEAN took no part in the consideration of the above De- cision and Order. Chester Cable Corp . and Local No. 441, Metal Precision, Elec- tronics and Production Workers , National Independent Union Council, Petitioner and Local No. 1783, International Brother- hood of Electrical Workers, AFL-CIO. Case No. 2-RC-9679. April 3, 1959 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted among certain employees of the Employer, on December 19, 1958, under the direction and supervision of the Regional Director for the Second Region. At the conclusion of the election, the parties were furnished with a tally of ballots which shows that 111 ballots were cast, of which 50 were for the Petitioner, 52 were for the Intervenor, and 9 were challenged. The challenges were sufficient in number to affect the results of the election. On December 29, 1958, the Petitioner filed timely objections to conduct affecting the results of the election. After investigation of the objections and challenges, the Regional Director, on February 12, 1959, issued and served upon the parties his report on objections and challenged ballots. On February 20, 1959, the Employer filed exceptions solely to the disposition of three of the nine challenges in the Regional Director's report, as will be described below. The Petitioner and the Intervenor filed no exceptions. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three-menmber panel [Members Rodgers, Jenkins, and Fanning]. The Regional Director found in his report that the objections filed by the Petitioner were without merit and, accordingly, recommended that they be overruled. As no exceptions were filed to this recom- mendation, we adopt it. The Regional Director recommended that the challenges to the ballots of Charles Weeks, Morris Conterino, Howard Doremus, Veto Mangano, Thomas Murphy, Joseph Lawrence, and Anoinette Wan- czyk be overruled, and that their ballots be opened and counted. He also recommended that the challenges to the ballots of Cornelius Meeuwisse and Floyd Crossway be sustained. As no exceptions were 123 NLRB No. 84.