United Insurance Co.

UNITED INSURANCE COMPANY 885 Unions by discrimination in respect to hire and tenure of employees, thereby engaging in an unfair labor practice within the meaning of Section 8 (a) (3) of the Act; thereby it assisted and supported Repondent Unions, thus engaging in an unfair labor practice within the meaning of Section 8(a) (2) of the Act; and thereby it interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7, and thus engaged in an unfair labor practice within the meaning of Section 8(a) (1) of the Act; and the Respondent Unions thereby caused such discrimination , thus engaging in an unfair labor practice within the meaning of Section 8 (b) (2) of the Act, and restrained and coerced employees in the exercise of their rights under the Act, thus engaging in an unfair labor practice within the meaning of Section 8(b) (1) (A) of the Act. 2. Said unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Respondent Company did not discriminate against Felix Hernandez Velez in violation of Section 8(a)(3) or (1), and the Respondent Unions did not cause or attempt to cause Respondent Company so to discriminate against him, in viola- tion of Section 8(b)(2) or 8 (b) (1) (A) of the Act. [Recommendations omitted from publication.] United Insurance Company and Insurance Workers Inter- national Union, AFL-CIO. Case No. 4-CA-1576. August 10, 1961 DECISION AND ORDER On March 24, 1961, Trial Examiner Sydney S. Asher, Jr., issued his Second Supplemental Intermediate Report in the above-entitled pro- ceeding, 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 Second Supplemental Intermediate Report attached hereto. There- after, the Respondent and the Charging Party filed exceptions to the Second Supplemental Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and supplemental hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Second Supplemental Intermediate Report, the exceptions and briefs, and the entire record in the case,2 and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, United Insurance Company, Chicago, Illinois, its officers, agents, successors, and assigns, shall : I 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 [-Members Rodgers , Leedom, and Fanning]. 2 The Respondent 's request for oral argument is denied , as the record , and the excep- tions and briefs, adequately present the issues and the positions of the parties. 132 NLRB No. 70. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Refusing to bargain collectively with Insurance Workers Inter- national Union, AFL-CIO, as the duly certified exclusive bargaining representative of its employees in the following appropriate unit: All licensed debit agents in the Commonwealth of Pennsylvania, in- cluding licensed debit agents who work in Pennsylvania but are at- tached to the Respondent's district offices in Wilmington, Delaware; Hagerstown, Maryland ; and Youngstown, Ohio, but excluding ordi- nary agents, special agents, supervisors or superintendents, managers, office clerical employees, and all other supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist, and bargain collectively through the above- named labor organization, or any other labor organization of their own choosing. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its offices throughout the Commonwealth of Pennsyl- vania, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall after being duly signed by an authorized repre- sentative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fourth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. I In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX 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, as amended, you are notified that : UNITED INSURANCE COMPANY 887 WE WILL NOT refuse to bargain collectively with Insurance Workers International Union, AFL-CIO, as the duly certified exclusive bargaining representative of our employees in the ap- propriate unit described below. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist, and bargain collectively through the above-named labor organization , or any other labor organization of their own choosing. WE WILL bargain collectively, upon request, with Insurance Workers International Union, AFL-CIO, as the exclusive repre- sentative of all employees in the bargaining unit described , be- low, with respect to rates of pay, wages, hours of employment, or other conditions of employment , and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All our licensed debit agents in the Commonwealth of Penn- sylvania , including licensed debit agents who work in Penn- sylvania but are attached to our district offices in Wilming- ton, Delaware ; Hagerstown, Maryland ; and Youngstown, Ohio, but excluding ordinary agents, special agents , super- visors or superintendents, managers, office clerical employees, and all other supervisors as defined in the Act. UNITED INSURANCE COMPANY, Employer. 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. SECOND SUPPLEMENTAL INTERMEDIATE REPORT On January 14, 1959, the Board issued its Decision and Order herein 1 finding that the Respondent's debit agents were employees, rather than independent contractors; that the Respondent's debit agents in the Commonwealth of Pennsylvania, with cer- tain exclusions, constituted an appropriate bargaining unit; that at all times since May 7, 1957, Insurance Workers International Union, AFL-CIO,2 herein called the IWIU, had been their exclusive bargaining representative; and that the Respondent, by refusing since May 9, 1957, to bargain with the IWIU, had violated Section 8(a)(1) and (5) of the Act. It ordered the Respondent, upon request, to bargain with the IWIU as such representative. On December 11, 1959, the United States Court of Appeals for the Seventh Circuit set aside this Order and remanded the case to the Board "for a full hearing and decision based upon a consideration of all rele- vant evidence." 3 On February 8, 1960, the Board reopened the record herein and remanded the case to me "for the purpose of receiving additional evidence consistent with the Court's remand." Pursuant to notice, a supplemental hearing was held before Sydney S. Asher, Jr., the duly designated Trial Examiner, on March 28, 1960. No evidence was produced 1122 NLRB 911. 2 The name of the Charging Party appears as amended by the Board. 3 United Insurance Company of America v. N.L.R.B., 272 F. 2d 446 (C.A. 7). '888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the supplemental hearing bearing on the issue of whether the Respondent's debit agents were independent contractors or employees. The parties agreed that, if the order of the Court of Appeals for the Seventh Circuit did not automatically incor- porate the transcript of the 1957 hearing into the record of the supplemental hearing, it should be so incorporated. On July 29, 1960, I issued a Supplemental Intermediate Report finding that on May 27, 1959, the IAIU had merged with another labor ,organization to form the Insurance Workers International Union, AFL-CIO, herein called the IWIU, and that the IAIU's certification in Case No. 4-RC-3194 had not thereafter been amended. Accordingly, I recommended that the complaint be dis- missed, without prejudice to the right of any party to apply to the Regional Director for amendment of the certification in Case No. 4-RC-3194. On September 28, 1960, the Regional Director issued a determination and order amending certification in Case No. 4-RC-3194? Thereafter, the General Counsel, the Respondent, and the Unions filed exceptions to the Supplemental Intermediate Report in the instant case. On December 6, 1960, the Board issued an Order amend- ing the name of the Charging Party herein, and remanding the proceeding to me for the preparation of a Second Supplemental Intermediate Report containing- an independent reevaluation of, and new or amended findings of fact based on, the evidence produced at the 1957 hearing herein on the issue of whether the Respondent's debit agents involved herein are independent contractors or em- ployees within the meaning of the Act, without regard to the findings made by the Board on such issue in 1954 in United Insurance Company, 108 NLRB 843, and new or amended conclusions of law and recommendations in the light thereof and in the light of the amended certification in Case No. 4-RC-3194. In accordance with the remand, the findings of fact, conclusions of law, and recom- mendations heretofore made in the original and Supplemental Intermediate Reports are rescinded, and upon the entire record in this case, including my observation of the witnesses, I make the following: AMENDED FINDINGS OF FACT There is no dispute, and it is found, that the Respondent is, and at all material times has been, engaged in commerce within the meaning of the Act and its operations meet the Board's current jurisdictional standards.5 It is also found that, at all mate- rial times up to May 27, 1959, the IAIU was a labor organization within the meaning of the Act. It is further found that the IWIU is, and, at all times since May 27, 1959, has been, a labor organization within the meaning of the Act .6 A. The sequence of events On November 5, 1956, the IAIU filed with the Board a representation petition in Case No. 4-RC-3194 (not published in NLRB volumes), seeking certification as bargaining representative for all debit agents of the Respondent in Pennsylvania. On November 27, 1956, the Respondent and the IAIU entered into an agreement for consent election, which was duly approved by the Regional Director. Paragraph 13 of this agreement stated: By consenting to this Agreement, the Employer does not waive its position that licensed debit agents of United Insurance Company of America are independent contractors and not employees but waives the right to raise such issue in these proceedings. Pursuant to this agreement, an election was conducted on December 18, 1956. On December 21, 1956, the IAIU filed objections to the election. On February 12, 1957, ' The Employer (Respondent herein) filed a request for leave to appeal to Board from the Regional Director's determination and order which the Board denied on December 0, 1960. i The Respondent is an Illinois Corporation with Its principal place of business in Chicago, Illinois. It is engaged in the sale of insurance in 40 States and the District of Columbia, and maintains branches in the Commonwealth of Pennsylvania During 1956, the Respondent collected premiums amounting to in excess of $30,000,000, of which more than $3,000,000 was collected in Pennsylvania. During the same year, the Respondent remitted from its Pennsylvania offices to points outside the Commonwealth more than $50,000 derived from premiums collected within the Commonwealth Compare Chicago Metropolitan Mutual Assurance Company, 119 NLRB 352. 6 At the supplemental hearing, the General Counsel added to the complaint an allega- tion that the IWIU is a product of a merger between the IAIU and another union, and is a labor organization within the meaning of the Act. UNITED INSURANCE COMPANY 889 the Regional Director set the election aside and ordered a new election . A rerun elec- tion was conducted on March 12, 1957. On March 21, 1957, the Respondent filed objections to the rerun election . On May 7, 1957, the Regional Director dismissed such objections and certified the IAIU as the exclusive bargaining representative for all debit agents of the Respondent in Pennsylvania, with certain exclusions. On May 27, 1959, the IAIU merged with another labor organization to form the IWIU. Thereafter, on September 28, 1960, the Regional Director amended the certi- fication in Case No. 4-RC-3194 by deleting the name of the IAIU as the certified union, and substituting therefor the name of the IWIU. B. The appropriate unit 1. Contentions of the parties The complaint, as amended at the original hearing, alleges that all licensed debit agents of the Respondent in the Commonwealth of Pennsylvania, including licensed debit agents working in Pennsylvania but attached to the Respondent's district offices in Wilmington, Delaware; Hagerstown, Maryland; and Youngstown, Ohio, but ex- cluding ordinary agents, special agents, supervisors, managers, office clerical em- ployees, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining. In support of this allegation, the General Counsel and the Unions contend that the debit agents of the Respondent in Pennsyl- vania are employees within the meaning of the Act. The answer denies that the unit described in the complaint is appropriate for the purposes of collective bargaining, on the ground that the Respondent's licensed debit agents in Pennsylvania are inde- pendent contractors and not employees within the meaning of the Act. The Respond- ent apparently concedes that, if its licensed debit agents in Pennsylvania are em- ployees, the unit set forth in the complaint is otherwise appropriate. 2. Duties of licensed debit agents 7 Licensed debit agents sell industrial life insurance,8 ordinary life insurance, health and accident insurance, and hospitalization insurance, and collect premiums thereon. As a rule, industrial life insurance constitutes the major portion of their sales. The premiums charged policyholders are determined according to rate manuals supplied by the Respondent to all agents,9 and the policies sold are likewise supplied by the Respondent. The premiums charged and the policies issued must be approved in advance by State insurance officials. The rate manuals contain "Rules and Instruc- tions" set forth in the Appendix attached hereto. When an agent sells a new policy or collects a premium on an old policy he notes this fact in a "debit book" supplied to him by the Respondent. He may make his own arrangements with the policyholder regarding the frequency with which premiums will be paid. For example, although premiums on industrial insurance are due weekly, the agent and the policyholder may agree between them for convenience that the premiums will be paid every 2 weeks, in double the amount of the weekly premium. However, State law requires that industrial policies be lapsed when premiums become 4 weeks in arrears. The Respondent forbids its agents to continue to carry a lapsed policy on their "debit books," and requires them to report lapsed policies promptly on forms which it provides. The agents also service the insurance needs of their policyholders. For example, they help policyholders to reinstate lapsed insurance. The agents are not required by the Respondent to perform any function with regard to claims for insurance benefits, except that in claims arising under health and accident insurance the agent notes on the claim form the status of the policy regarding the payment of premiums. However, as a matter of convenience to the policyholders, and in order to create 7 As used herein the term "licensed debit agents" is limited to those working in Pennsylvania 8 Industrial life insurance is written in amounts less than $1,000, and the premiums are payable weekly It can be purchased for weekly premiums of 5, 10, 15, or 20 cents. Generally, the agents collect the premiums at the home or place of work of the policy- holder. See Mobray and Blanchard, Insurance, Its Theory and Practice in the United States (5th ed i961) 276. 9 The manuals contain the following statement : "Notice This rate book is the property of the United Insurance Company of America, Chicago 5, Illinois, and is placed in the liands of its agents and Superintendents and accepted by them with the express under- standing that it will be promptly returned to the Company upon termination of service." 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD goodwill, agents normally supply policyholders, on request, with blank forms for filing claims, and frequently transmit the payments personally to the policyholders after the Respondent has approved the claims. In some instances where the agent is convinced that the claim will eventually be approved by the Respondent, he may voluntarily pay the claim prior to approval, and charge the amount paid to the Respondent on his accounts. In such situations the agent acts at his own risk; should the claim ultimately be disapproved the corresponding charge against the Respondent on the agent's account would be disallowed. In Pennsylvania, in order to sell insurance an agent must take an examination and be licensed by the State. The agent pays for his own license, but the Respondent must certify that it has appointed him to sell for it. The contracts between the Respondent and the agents now in force, discussed in more detail below, do not mention any requirement that the agents be bonded. How- ever, agents when first engaged must pay $20 to the Respondent "for the initial expense of investigations, issuing and handling of [the] bonds." Thereafter each agent must pay the Respondent an annual fee of $5 for renewal of his bond. In 1956, the Respondent adopted a policy of eliminating the renewal fee, after the first such renewal, of any agent who applies for participation in the savings and profit-sharing pension fund plan described hereafter. 3. Compensation of licensed debit agents Each of the Respondent's offices is in charge of a manager, who engages debit agents; hence each agent works out of a particular office. Under the manager are clerical employees and several superintendents, described in the record as "actually an assistant manager." 10 Each superintendent has a number of debit agents assigned to him. In one instance in 1956, in the Braddock, Pennsylvania, office, Martin Rosenstein, an agent, requested the manager to transfer him from the staff of one superintendent to the staff of another, and the manager did so. The Respondent has, from time to time, promulgated plans of compensation relating to its debit agents. A "revised 1956 agent's commission plan," herein called the 1956 contract, was drawn up in 1956 and submitted to the agents for acceptance. Those unwilling to come under its terms remained governed by their previous agreements; the others signified their acceptance of the 1956 contract by returning a signed copy of its last page to the Respondent. A large number of agents accepted it. Since the 1956 contract has been in effect, all new agents engaged by the Respondent have been required to come under it. The 1956 contract sets forth a schedule of collection commissions which will be paid weekly to a new agent during his first 15 weeks of service, based upon the amount of premiums collected. In the agent's second quarter-year of service, and each quarter thereafter, he receives a collection commission of 20 percent of his total collections for the previous quarter, paid at the rate of one-thirteenth of this amount each week. In addition, he receives an increase commission of 20 times the increase obtained during the previous quarter 11 up to a stated maximum, paid at the rate of one-thirteenth of this amount weekly. The 20 times provided for increases as the length of the agent's service increases, up to a maximum of 25 times in the 6th year of service. Excess over the stated maximum is placed in the agent's "reserve account." After a year of service, an agent may withdraw this reserve in cash, not to exceed $500 within any 6-month period, if he has attained average collections of 96 percent or better. In order to qualify for this, the agent's accounts "must be inspected to enable the manager to certify to the accuracy of the increase reserve." There is also a schedule of commissions for selling ordinary insurance, and a commission for ordinary increase where policies are issued on a monthly basis, computed at 20 times, or up to 25 times, depending on the agent's length of service, paid during the following quarter at the rate of one-thirteenth each week. In addition there are provisions for a "quarterly new business increase bonus" and for a "semi-annual incentive collection commission bonus." Finally, the contract contains a warrant by the agent that his accounts are accurate, a reservation by the Respondent of "the right to conform com- mission payments to the agent in accordance with the true condition of his account and records," a provision for termination at any time by either party, a provision for 10 There does not seem to be any dispute that the managers, clerical help, and super- intendents are employees of the Respondent, and that they are excluded from the unit for which the IATh was certified 21 The increase is computed by totaling the weekly premiums due on new policies sold and old policies reinstated, and subtracting therefrom the weekly premiums due on lapsed policies. UNITED INSURANCE COMPANY 891 the Respondent to conduct an audit of the agent's account within 90 days after ter- mination and for settlement promptly thereafter,12 a commitment by the agent not to solicit until he has received his State license, and to deposit with the Respondent promptly all moneys collected and due the Respondent, and a statement that the agent fully understands that his renumeration "is solely by way of commission." This contract has been unilaterally supplemented by the Respondent from time to time in various respects. Thus, although the contract is silent as to the annual payment of a $5 bond fee by the agents, that is required except under the circum- stances outlined above. Also, while the contract does not mention reimbursement of expenses, the Respondent does in some instances provide certain agents with a limited transportation allowance, as more fully described hereafter. And in 1957 the Re- spondent unilaterally promulgated an additional "continuous service bonus," which will be discussed in greater detail below. Finally, although the contract is silent about the matter, it appears (as more fully described below) that the Respondent does not permit its agents to sell competing policies for other companies. In practice, when two agents collaborate in selling a new policy the Respondent permits them to work out between themselves the allocation of the commission earned. The agents are forbidden by State law to rebate any part of the premiums to a policyholder. If a policyholder remits his premiums directly to the Respondent, instead of having them collected by the agent, the agent nevertheless receives a col- lection commission thereon. There is no limit to the amount of compensation an agent may earn. 4. The debit At the time an agent is appointed, he is supplied by the Respondent with a loose- leaf book, each page of which contains the name and address of a policyholder from whom he is to collect premiums.13 When a new policy is written, the agent adds a new page to the book, when an old policy lapses the corresponding page is removed. This book, referred to in the testimony as a "debit," 14 remains the property of the Respondent and must be surrendered by the agent to the Respondent at termination. The Respondent does not make a calculated effort to concentrate each debit in a particular limited area, nor does the Respondent have any policy against debits over- lapping as to territory. Indeed, the agents are free to sell insurance anywhere in Pennsylvania. However, in practice the agents find it more efficient to confine the bulk of their activities to a given geographical area. To what extent does the Respond- ent concern itself with this problem? In one instance in Philadelphia in 1957, two or three agents sometimes were collecting premiums in the same house. A meeting was held, attended by the agents, the superintendents, the managers, and Mr. Shea, described as "the city manager." Each agent submitted to Shea a list of the amount of business he was doing in each block. Shea then "reapportioned the debit" (e.g., transferred some policyholders from one agent's debit to another) of about 12 of the agents in such a way that each agent wound up with a debit of approximately the same amount of weekly premiums to collect, but each debit became concentrated in a particular geographical area. Although Percy Brown, one of the affected agents, testified at the original hearing that he "was moved two blocks west . from Eighteenth [Street] to Twentieth," and that "they will say `Mr. A stops at Twentieth.' ... The manager of the district . . . breaks his debits up into the size that he wants them," it appears that the "lines" thus established did not interfere with the right of the agents to sell insurance anywhere in the Commonwealth. So long as a particular policy is listed in an agent's debit, he must continue to keep the record of that policy and to service it until the policy is either lapsed or trans- ferred to another agent's debit. Sometimes a policyholder moves out of his former neighborhood, making it more difficult for the agent to continue to collect premiums. 12 The Respondent's 1955 plan of compensation under which presumably some agents still operate contains the following provision, not found in the 1956 contract : "It is understood that when an agent's service terminates . . . he has been paid in full to date and there is no further commission or equity in any bonus due that particular agent " 13 There are a few licensed debit agents, known as "builders," to whom blank books are issued. Builders, of whom there are two in Pennsylvania, then build up the debit from scratch. They are not under the 1956 contract, but operate under an entirely different compensation agreement After 6 months, they either turn in the book, which is reissued to another agent, or retain the book under the terms of the 1956 contract. 14 The term "debit," In insurance parlance, would seem to have an additional meaning, namely, a specified territorial area assigned to a particular agent in which his activities are carried out. Davis, Industrial Life Insurance in the United States (1st ed. 1944) 7, 54-55. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under such circumstances the agent may elect to continue to collect the premiums through the mails or otherwise, even if the policyholder has moved out of the Com- monwealth. On the other hand, the agent may decide to transfer the policy to another agent willing to accept it, either because the policyholder has moved or in order to concentrate the agent's debit geographically. In such a transfer, a form must be filled out and submitted to the manager; if the transfer is out of the Com- monwealth a copy is submitted to the manager in the area to which the policyholder has moved. After the agent is informed by his manager that the transfer has been effected, he removes the corresponding page from his debit. For convenience, the transferring agent sometimes transmits the page to the agent who is accepting the transfer, but this is not required. 5. Relationship between the agents and their managers Let us now examine the relationship between the agent and his superintendent and manager. The superintendent usually accompanies a new agent on his rounds to acquaint him with his debit and show him how to sell insurance and make collections. There is, however, no formal school for new agents. The amount of time the super- intendent spends on "breaking in" a new agent depends in large measure on the agent's aptitude and previous experience in the insurance field. The agent is free to follow the superintendent's suggestions or to devise his own methods. The super- intendent will, upon request, extend further advice or help to the agent. Some of the superintendents' and managers' functions are to explain new policies, to explain the compensation system, to suggest sales and collection techniques, and to instill enthusi- asm in the agents. To this end, managers arrange meetings from time to time. Attendance of the agents at these meetings is optional. The Respondent also stimu- lates interest by such devices as distributing lapel buttons to the agents free of charge and holding sales contests among the agents with cash or watches awarded to the winners as prizes. The superintendents and managers have other functions regard- ing the agents, such as helping an agent to transfer a policy to another agent, servic- ing an agent's debit in his absence, checking the agent's weekly reports and investi- gating complaints by policyholders with respect to his servicing the policyholder. A superintendent is required to report to the Respondent the name of any agent whom he assists, or whose debit he services in the agent's absence. The manager can terminate the agent's relationship with the Respondent at any time. In deciding whether to terminate an agent, the manager would probably take into consideration the recommendation of the agent's superintendent. 6. Hours of work and canvassing The agents determine how many days they will work each week, what hours they will work, what calls they will make, and how frequently they will canvass. The Respondent does not require its agents to report on these matters, nor does the Respondent furnish them with the names of likely prospects. 7. The Sunshine Club In one of the Respondent's Philadelphia offices a voluntary unincorporated dsso- ciation has been formed known as the Sunshine Club. Membership is optional and is limited to licensed debit agents, and the members pay periodic dues. In the last few years, at the request of the club's president (one of the agents), some of the members have noted their dues as withheld on their weekly accounts submitted to the Respondent. The Respondent's cashier then deposits these dues in the club's bank account and renders an accounting to the club's president, showing which mem- bers paid their dues in this manner. The record does not show whether or not the club holds meetings on the Respondent's premises. 8, Reporting by agents a. The accounts Agents are required to file weekly accounts with the Respondent, and simul- taneously to turn over any funds due the Respondent. The agents need not neces- sarily do so in person. Even though a particular day of the week may be designated for submitting accounts, no objection is made if they are turned in a few days early or late. However, if an agent were as much as a week late in submitting his ac- counts, the manager would investigate. UNITED INSURANCE COMPANY 893 The weekly accounts are rendered on forms provided by the Respondent. They show such matters as total collections , claims paid, various commissions and bonuses due the agent, increase record, reserve record, amounts to be withheld, mis- cellaneous credits, and the resulting balance due the Respondent The mechanics of submitting the weekly accounts is as follows : The agent turns in the accounts to his superintendent, who reviews them for completeness and accuracy, and checks them against life register .15 If the accounts are complete , the superintendent signs the accounts and returns them to the agent, who then deposits them and the funds due the Respondent with the cashier in the particular office out of which he works. Presumably, the amount submitted must agree with the balance due the Respondent shown in the accounts. In addition to the weekly accounts , agents report at least once every 3 months on the percentage of collections and the status of each policy in his debit, e.g., whether premiums are in arrears, up-to-date, or paid in advance . This informa- tion is submitted on the reverse of one of the forms used for the weekly accounts. b. Withholding Beginning on January 1, 1955, the Respondent refused to make further withhold- ing of any part of its agents' earnings for the purpose of Federal income taxes; the agents prepared their own estimated returns and remitted their quarterly pay- ments directly to the Internal Revenue Service. But beginning on July 1, 1955, the Respondent again agreed to withhold Federal income taxes from the earnings of those agents who requested it to do so, in amounts set by the agents . The Re- spondent has adopted the same policy with respect to the city wage taxes in Phila- delphia and Pittsburgh. Since 1955 the Respondent has withheld funds for old age and survivorship cov- erage, and contributed its share, for all its debit agents . This policy is due to the interpretation of the Respondent's general counsel of an amendment to the Federal statute blanketing all "full-time life insurance salsemen" under old age and survivor- ship coverage .is The Respondent does not require its Pennsylvania agents to con- tribute with respect to unemployment compensation , nor does the Respondent con- tribute toward the unemployment compensation tax of these agents. The Respond- ent does not consider that it comes under the Pennsylvania workmen's compensa- tion law with regard to its licensed debit agents in that Commonwealth. For many years the Respondent has had a voluntary savings and profit-sharing pension fund. Any employee or agent of the Respondent with a year of service may elect to join, providing he applies within 2 months after becoming eligible. The employee or agent thereafter contributes 5 percent of his compensation to the fund, up to a stated annual maximum . The Respondent makes annual contributions to the fund, based on its net earnings and the percentage of eligible employees and agents who have joined . The Respondent's contributions are apportioned among the indivivdual depositors' accounts according to a schedule based on the amount of their deposits and their length of service with the Respondent . The Respondent also offers group life insurance , group hospital and surgical insurance , and group ac- cident and sickness insurance to those of its employees and agents who desire such coverage and who have attained the required minimum service with the Respondent. c. Inspection of the agents' debit books The Respondent inspects the debit book of a particular agent whenever it suspects that a shortage exists in his accounts and when the agent desires to draw out all or part of his reserve. Where a shortage is suspected, the manager requests the agent in question to bring his debit book to the office. The manager or superintendent then accompanies the agent to the homes of his policyholders , where the entries in the agent's debit book are compared with the entries in the policyholders ' premium receipt books .17 Failure of the agent to bring in his debit book upon request would result in his termination . In short, the Respondent retains the right to inspect the agents' debit books at any time, but exercises that right sparingly. 15 The life register is a list of policyholders One copy is in the agent's possession and another In the possession of the Respondent 's home office 1026 U. S CA., see 3121 ( d) (3) (B) 17 Apparently, when a policy Is Issued , the policyholder Is provided with a premium receipt book ; each time a premium is paid that fact Is recorded by the agent in the policy- holder's book. See Davis, Industrial Life Insurance In the United States ( 1st ed. 1954) 282-285. '894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. Holidays, vacations, and illness The agents are free to take holidays whenever they desire, without notice to the Respondent. When they do so, their compensation for the particular week is not .immediately affected, as it is based upon their earnings in the previous quarter. But if the holiday should result in any less commissions earned that week, the drop would be reflected in a lower weekly compensation the following quarter. To min- mize any loss of earnings occurring because of a holiday, the agents, as expressed by Martin Rosenstein, "have to work harder when [they] come back." Agents may take vacations whenever they desire. In at least one office, in Brad- dock, Pennsylvania, the agents work out a vacation schedule among themselves, on the basis of convenience. An agent may arrange to have someone else make his collections for him while he is on vacation, or he may request his superintendent to do so. If the superintendent is available, he will service the debit during the agent's vacation; the agent receives commissions on collections made by the super- intendent, and also gets credit for any new policies sold by the superintendent while servicing his debit. It is therefore to the agent's advantage to time his vacation so that his superintendent will be available to collect for him. The superintendent who services a debit for an agent on vacation reports that fact to the Respondent. In this way, the Respondent's records reflect which agents have taken vacations, and the duration of the vacations taken. The Respondent maintains a "continuous service bonus plan" under which an agent with more than a year's service "who has remained on his collection route" for a year "without missing any week except for illness or accident" receives a bonus based on the amount of his collections during a given period and the length of his service. Agents with more than 2 years' service, who have missed only I week during a year, are also entitled to a bonus based on their collections during a speci- fied period; but this bonus is only half as large as the one they would have received had they taken no vacation at all. The size of these bonuses is further enlarged for those qualifying agents who produce a specified increase in a stated period of time. Michael R. Sohaski, the Respondent's regional agency director for the eastern region testified at the 1957 hearing that the continuous service bonus plan was designed to encourage the agent to remain on his debit, because, according to Sohaski, "he is always able to obtain better results than a stranger" and if the agent takes no time off during the year "it saves the Company considerable expense of placing a man to collect the debit." The Respondent provides no paid sick leave, as such, for its agents. If an agent is ill, and the superintendent can do so, the superintendent will service the debit and the agent will be credited with commissions on the collections made 10. Sale of insurance for other companies Sohaski testified at the 1957 hearing that the Respondent would not knowingly engage as a debit agent anyone licensed to sell for another insurance company poli- cies identical to those sold by the Respondent. However, the Respondent does not object if its debit agents sell noncompeting policies for other insurance companies. Some of them are licensed to sell personal liability, automobile casualty, and bur- glary insurance for other companies. A number, in addition to selling the Respond- ent's policies, also sell industrial fire insurance for United Fire Insurance Company, herein called the fire company. This is a separate New York corporation some of whose officers are also officers of the Respondent. In order to sell policies of the fire company, an agent must be separately licensed by Pennsylvania to do so. Such agents make reports and remittances to the fire company on forms it provides. The compensation received by the agents from the fire company is governed by a sep- arate agreement between the agents and the fire company. A few agents, in addition to selling insurance for the Respondent and the fire coenpany, engage in other occupations. For example, agent Maury E. Arbiter testified at the 1957 hearing that his insurance activities generally require about 4 days and 4 evenings of each week, and that in his remaining time "I fix a television here and there for a customer, and I have a few affiliations with organizations that I do social service work, public relations, and things of that sort." 11. Expenses incurred by agents The Respondent supplies to each agent without charge the necessary forms, rate books, policies, and advertising materials necessary to carry out his functions, and also furnishes him with a desk in the Respondent's office out of which he works. The agent, however, pays the costs of the original license plus his travel expenses, UNITED INSURANCE COMPANY 895 salary of assistants, if any, rent, if any,18 postage, stationery, telephone, robbery insurance, bond, business cards, gifts or prizes to policyholders or prospects, enter- taining, and advertising, other than the promotional material furnished by the Re- spondent. Except as noted below, the Respondent does not contribute any part of these expenses. The agents' business cards generally contain the Respondent's name, the agent's name and telephone number, and the address and telephone number of the office out of which the agent works. The advertisements may consist of such things as pencils, calendars, or ads in church papers. There have been occasions' when agents have purchased business cards or gifts through the Respondent, the agent paying the entire expense. Because of the policies adopted by the Federal Trade Commission regarding advertisements by insurance companies, the Respond- ent requires any agent who contemplates advertising to submit it to his manager for advance approval. The record contains one such instance of an agent receiving advance approval for a calendar. There are two exceptions to the above statement that the Respondent makes no contribution toward the agent's expenses. The first is the annual renewal fee of the bond; as mentioned above this may be eliminated under certain circumstances. The other is travel expense. In exceptional cases, where the distance to be covered by the agent in making his rounds is great, the Respondent may extend to him a stated travel allowance. Thus, since 1956 agent Vernon Presley has received an automobile allowance of $5 per week. The amount of this allowance was deter- mined by the manager, after consultation with Presley. ,12. Termination of the relationship The manager investigates complaints by policyholders and may terminate the relationship at any time. So may the agent. Upon termination, the agent turns in to the Respondent his debit book and rate manuals, and the Respondent must notify the State officials to cancel the agent's license. The agent cannot continue to sell insurance until and unless he is licensed to do so for another insurance com- pany. Within 90 days, the Respondent conducts an audit of the agent's accounts and a settlement takes place. As Sohaski expressed it at the 1957 hearing, the only thing an agent takes with him at termination is "the friendship of his policyholders." This may, however, prove to be valuable. Thus, according to Sohaski, there have been instances where terminated agents, thereafter licensed to sell policies for other insurance companies, "have carried off as much as fifty percent of the business" from their former debits. 13. Conclusions The parties agree that the "right of control" test is the proper test to be applied here: Where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished, the rela- tionship is one of employment; on the other hand, where control is reserved only as to the result sought, the relationship is that of an independent contractor. And it is the right and not the exercise of control which is the determining element.19 The resolution of this question depends upon the facts of each case, and no single factor is alone determinative.20 In the instant case, certain aspects of the debit agent's relationship to the Re- spondent tend to support a view of this relationship as being that possessed by in- dependent contractors. Among these are: 1. The agent is largely "on his own"; he sets his own hours of work and work- days, and may make his own arrangements with policyholders respecting the fre- quency of premium payments. 2. The agent pays his own expenses, such as transportation, advertising, postage, and gifts to policyholders or prospects (with some exceptions). 3. The agent may, if he desires, set up his own office in his home or elsewhere, and may hire assistants, at his own expense, to aid in collecting premiums. 18 One agent , Vernon Presley , has a room set aside in his home exclusively for his insurance activities , and by reason of this fact deducts $10 per month on his Federal income tax return as a business expense. The record reveals no other instance of an agent paying rent for office space. 19 N.L R B v. Phoenix Mutual Life Insurance Company, 167 F. 2d 983, 986 (C A. 7), ,cited in National Van Lines, Inc. v. N L R B., 273 F. 2d 402 (C.A. 7), 20 For a recent application of the "right of control " test by the Board, see Lindsay Newspapers, Inc., 130 NLRB 680. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Some agents engage in additional occupations, including the sale of noncom- peting insurance. 5. The agent is free to solicit and obtain business anywhere in the Commonwealth. 6. Agents voluntarily perform certain services for policyholders in order to create goodwill. 7. There is no limit to the amount of compensation that an agent may earn. 8. The agent need not report to the Respondent such matters as how many calls he makes or what hours he works. 9. The agent is not required to attain any designated quota of sales or collections, except that he must reach 96 percent collections in order to cash in his "reserve account." However, other factors tend to indicate that the relationship between the agent and the Respondent is that of employment. The most important of these are: 1. The manager assigns each agent to the staff of a particular superintendent and may transfer agents, on request of the agent, from the staff of one superintendent to that of another. 2. The Respondent does not merely let the agents shift for themselves, but actively assists them in their functions. New agents are supplied with debits listing their policyholders; thus at the outset the Respondent assists a new agent to obtain income from policies originally sold to policyholders by a different agent. More- over, superintendents accompany new agents on their rounds, and do so for other agents on request; the Respondent conducts voluntary sales meetings and sponsors contests for its agents; the Respondent supplies them with desks in its offices and allows them to include its name, address, and telephone number on their business cards; superintendents if available service the debit in the agent's absence; the Respondent furnishes a pension plan (to which the Respondent contributes) and various group insurance plans for those of its agents who desire to participate, and in some instances contributes toward their transportation expenses and bond renewal premiums. 3. The Respondent encourages agents to remain associated with it by consider- ing length of service as a factor in computing increase commission, the continuous service bonus, and the credits to an agent's account in the pension plan. 4. The Respondent retains ownership of the debit books and the rate manuals, which are the tools of the agents' trade, and supplies the blank forms and advertising materials needed by the agent to perform his functions. 5. The Respondent requires its agents to file weekly reports, which are approved by the superintendent. 6. The Respondent retains the right to inspect the agents' books at any time. 7. The Respondent does not permit its agents to sell competing policies for other companies, even where it would benefit the agent to do so. 8. Managers and superintendents investigate complaints by policyholders against agents 9. The Respondent controls the contents of advertising material put out by requiring the agent to submit such material in advance for approval. 10. Except during an agent's first 15 weeks, the compensation he receives during a given week for commissions on collections is unrelated to the commissions on collections he actually earned during that week. What he receives is related only to his average weekly earnings from the same source during the previous quarter-year. In short, the agent is paid an advance equal to expected or anticipated earnings, measured in terms of past performance Moreover, to the extent that an agent is paid commissions on collections made and new policies sold by his superintendent servicing his debit in the agent's absence, the agent's compensation reflects, in some measure, the industry and skill of the superintendent rather than of the anent. In addition, the Respondent retains a measure of control over the funds placed in an agent's "reserve account." 11. The so-called "continuous service bonus plan" is in substance a method of compensating an agent in lieu of paid vacation. Eligibility is not lost by absence from the debit alone, but only where absence is for reasons other than "illness or accident." Thus the Respondent demonstrates its concern with the cause of the agent's absence. 12. Through its rules and instructions in the rate manuals, the Respondent con- trols the agent's conduct in great detail. For example. he is forbidden "to enter into any newspaper controversy"; must "personally see that his applicant is examined the same day the application is written"; must "give a complete report" whenever an applicant is examined by a physician other than the Respondent's "appointed exam- iner"; must "immediately" deliver new policies "in person"; and is not permitted "to induce policyholders to relina»ish their insurance with other companies and replace that insurance by a policy with this Company." UNITED INSURANCE COMPANY 897 13. The Respondent may terminate the relationship at any time without prior notice, and the agent is then required to surrender his debit book and rate manuals. Thereafter he cannot sell insurance until he obtains new employment. I have carefully weighed both sets of factors. It is my considered opinion that the, elements indicating that the Respondent reserves the right to control only the results sought are outweighed by those indicating that, in addition, the Respondent reserves the right to control the manner and means by which the result is to be accomplished. It is accordingly found that the Respondent's licensed debit agents are employees of the Respondent rather than independent contractors 21 It follows, and I find, that all the Respondent's licensed debit agents in the Commonwealth of Pennsylvania, including licensed debit agents who work in Pennsylvania but are attached to the Respondent's district offices in Wilmington, Delaware; Hagerstown, Maryland; and Youngstown, Ohio, but excluding ordinary agents, special agents, supervisors or superintendents, managers, office clerical employees, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. C. The Unions' majority status and the Respondent's refusal to bargain It will be recalled that, following the rerun election conducted on March 12, 1957, the Regional Director certified the IAIU as the exclusive bargaining agent of the employees in the above-described unit on May 7, 1957. Thereafter, on May 27, 1959, the IAIU merged with another union to form the IWTU, and on September 28, 1960, the certification was amended by substituting the IWIU's name in place of the name of the IAIU. It is accordingly found that the IAIU was from May 7, 1957, to May 27, 1959, and the IWIU at all times since May 27, 1959, has been, the exclusive representative for the purposes of collective bargaining of the employees in the appropriate unit described above, by virtue of Section 9(a) of the Act. The complaint alleges, the answer admits, and it is found, that on or about May 8, 1957, the IAIU requested the Respondent to meet with it, and to bargain collectively with respect to rates of pay, wages, hours of employment, or other conditions of employment with it as the exclusive representative of the employees in the unit described above. It is further found that on or about May 9, 1957, the Respondent refused, and at all times since has continued to refuse, to meet with, negotiate with, or otherwise bargain collectively with either the IAIU or the IWIU as the exclusive representative of the employees in the unit described above. Upon the basis of the above amended findings of fact, and upon the entire record in this case, I make the following: AMENDED CONCLUSIONS OF LAW 1. United Insurance Company is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act. 2. Insurance Agents' International Union , AFL-CIO, was at all material times until May 27, 1959, a labor organization within the meaning of Section 2(5) of the Act. 3. Insurance Workers International Union , AFL-CIO, is, and at all times since May 27, 1959, has been, a labor organization within the meaning of Section 2(5) of the Act. 4. All licensed debit agents of the Respondent in the Commonwealth of Pennsyl- vania, including licensed debit agents who work in Pennsylvania but are attached to the Respondent's district offices in Wilmington , Delaware; Hagerstown , Maryland; and Youngstown , Ohio, but excluding ordinary agents, special agents, supervisors or superintendents, managers, office clerical employees , and all other supervisors as defined in the Act, are employees of the Respondent, rather than independent con- tractors, within the meaning of Section 2(3) of the Act. 5. All of the above-described employees constitute a unit appropriate for the pur- poses of collective bargaining , within the meaning of Section 9(b) of the Act. 6. Insurance Agents' International Union , AFL-CIO, was from May 7, 1957, to May 27, 1959, and Insurance Workers International Union, AFL-CIO, at all times since May 27, 1959, has been, and is now, the exclusive representative of the employ- ees in the above-described unit for the purposes of collective bargaining , within the meaning of Section 9 (a) of the Act. 21 See Golden State Agency, Inc, et al, 101 NLRB 1775; Allstate Insurance Company, 109 NLRB 578; Provident Life and Accident Insurance Company, 118 NLRB 412; and Detroit Mutual Insurance Company, Case No 7-RC-4458, Issued July 26, 1960 (not pub- lished in NLRB volumes). 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - 7. By refusing from May 9, 1957, to May 27, 1959, to bargain collectively with Insurance Agents' International Union, AFL-CIO, and by refusing at all times since May 27, 1959, to bargain collectively with Insurance Workers International Union, AFL-CIO, as the exclusive representatives of the employees in the above-described unit, the Respondent has engaged in and is engaging in'unfair labor practices within the meaning of Section 8(a) (5) of the Act. 8. By the above conduct, thereby interfering with, restraining, and coercing its employees in the exercise of the 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 (a) (1) of the Act. 9. 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. Upon the basis of the above amended findings of fact and amended conclusions of law, and upon the entire record in this case, I make the following: AMENDED RECOMMENDATION In view of the above , it is recommended that the Board reissue the Order originally issued by it in this case on January 14, 1959, except that the name "Insurance Agents' International Union , AFL-CIO," in Section 1(a) of the Order and in the first and third paragraphs of the Notice should be deleted, and the name "Insurance Workers' International Union , AFL-CIO," should be substituted therefor. APPENDIX RULES AND INSTRUCTIONS GENERAL 1. Agents are authorized to procure applications for life insurance, to collect the premiums for policies issued thereon, and to perform all duties required by the Company. 2. Agents are not authorized to accept risks; to waive forfeitures; to change any of the conditions or provisions in an application or policy; nor to extend the time of paying any premium. 3. Agents are not permitted to publish anything concerning the policies or business of this or any other Company, or to issue circulars of any kind, unless permission has been first obtained from the Company, and no Agent will be permitted to enter into any newspaper controversy. 4. Agents should thoroughly acquaint themselves with every document used by the Company, especially the application blank, policy forms and this book. To obtain the highest degree of success, the Agent should be familiar with the advan- tages of the Company he represents. 5. All premiums collected are trust funds belonging to the Company and must be remitted in accordance with the Company's instruction. 6. Agents are forbidden to pay, or allow, or offer to pay or allow, directly or indirectly, to any person insured, any concession or rebate from the full regular premium rates of the Company, or any special favor or advantage, or promise the same to any person as an inducement to insure , or promise to give any advantage or valuable consideration whatever not expressed or specified in the Company's published forms of policies. The Penalty for rebating shall be immediate dismissal from the services of the Company. 7. The Company will not permit its Agents to induce policyholders to relinquish 'their insurance with other Companies and replace that insurance by a policy with this Company. In other words, the Company will not countenance anything in the nature of what is known as "twisting." CORRESPONDENCE 8. In writing to the Home Office only one subject should be contained in each letter. This will facilitate the distribution of mail at the Home Office so that replies will be received more promptly. As far as possible, the self-addressed envelopes of the Company should be used in sending mail to the Company. This will very often avoid delay. Letters should be clear, distinct and specific as to the subject. UNITED INSURANCE COMPANY 899, 9. Agents not reporting to the Home Office direct should address all correspond- ence to the District or State Office to which they report. LICENSES 10. No application will be considered at the Home Office which has been sub- mitted by any person who is not properly licensed in accordance with the laws of- the State in which the application is written. Particular care should be taken to see that no applications are forwarded to the Home Office which have been written by other than properly licensed Agents. If an Agent desires to write a risk in a State other than in which he is licensed full particulars concerning what he desires to do should be communicated to the Agency Department of the Home Office, either direct or through the Manager. APPLICATIONS 11. All applications must be written with Black Ink. No penciled or traced signatures will be accepted. Avoid ditto marks, dashes or crosses; they are not answers. 12. The full Christian name of the Applicant must be given in the space provided, and the signature of the applicant should correspond. If the Insured is a minor, the signature of the parent or guardian must also be procured. If the applicant is a woman, her maiden name should be given in full and, if married, the full name of her husband should also be given. 13. The kind of policy desired must be plainly stated in the terms employed in this book for each form of policy, which terms will be found in the head of the table from which the rates are taken by the Agent. 14. The present, as well as the past, address of the applicant must be clearly and definitely stated, giving the street number or, if in the country, the correct R.F.D. and the number of miles from the nearest town and the direction. 15. Past and present occupation must be fully and definitely stated. Illustration: If a merchant, state kind of goods in which he deals; if a me- chanic, clerk or other employe, give nature of business and exact duties per- formed; if a farmer, state whether farm owner, renter or farm laborer. 16. The age of the applicant at nearest birthday should be correctly given and the Agent should see that it agrees with the date of birth before he allows the applica- tion-to leave his possession. If this is done, much delay will be avoided. 17. Unless otherwise requested, the policy, if issued, will take effect as of date of application and premiums will be payable accordingly. 18. Separate applications should be used if the applicant desires his insurance upon more than one plan. 19. The Agent's report on the back of the application form must be very care- fully completed in every case. 20. After the application is completed , the Agent should examine it and be sure that there are no errors or omissions. A careful compliance with the above require- ments will prevent delay in issuing the policy. BENEFICIARY 21. Always be sure to fill in the full Christian name of the Beneficiary and the relationship to the Insured. Policies should not be made payable to friends or to distant relations. Where the beneficiary is a creditor, this must be stated on the application. Corporation or partnership policies may be made payable to a company or firm. 22. Indefinite or Contingent beneficiaries should always be avoided such as "Chil- dren," "Children who survive me," etc. Such designation requires proof of who the beneficiaries really are and occasions much delay in the payment of claims. It is always more satisfactory to name a specific beneficiary. FIRST YEAR'S PREMIUMS 23. All applications should be written upon the annual basis. In a few instances, the Agent is justified in writing an application on the semi-annual or quarterly basis, but these instances are very rare. If the application is written on the semi-annual or quarterly basis, no settlement is permitted except a cash settlement. After the first year, premiums may be paid annually, semi-annually or quarterly. The Agent is responsible for the first year's premium and must obtain settlement therefor. No 614913-62-vol. 132-58 `900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD premium will be accepted for less than $5.00. If a quarterly premium is less than above amount, then it must be written semi-annual basis. 24. All premiums are based upon cash settlement and the Agent should at all times canvass for cash . If a policy is not delivered , the medical fee and the inspection fee, will be charged to the Agent's account. 25. Semi-annual premiums are obtained by adding 4% to the annual premiums and dividing by 2. Quarterly premiums are obtained by adding 6% to the annual premium and dividing by 4. Monthly premiums are obtained by adding 10% to the annual premium and dividing by 12. FIRST PREMIUM NOTES 26. The Company does not accept notes in payment of first year 's premiums. If the Agent takes a note settlement , it is entirely at his own risk and remittance of the premium must be made according to the rules of the Company , even though a note- settlement has been taken . If a note settlement is taken , the note must be attached to the Agent's report and forwarded immediately to the Manager under whom he Agent works . The note will be recorded and returned which (sic) the policy of the Agent. Notes of minors must not be taken in any instance , unless signed by a responsible person , preferably the parent or guardian. An Agent will never , in any instance , be allowed to take or accept , a note in settle- ment of a quarterly or semi-annual premium. Applications written on this basis must be for cash only. It is not permissible for the Agent to sell a note before the policy is issued and delivered. As soon as the policy is delivered , the Agent may negotiate the sale of the note and make remittance. A separate settlement must be taken from each applicant. It is not permissible to take the husband's note for both his and his wife's premiums , nor for any two or more premiums. Separate notes are required . The husband, however, should sign the note of the wife. PREMIUMS PAID IN ADVANCE 27. The Company allows a discount on premiums paid in advance at the rate of two percent per annum compounded annually. No discount will be allowed on pre- miums received less than three months in advance or when the total discount paid on all premiums paid in advance is less than one dollar. Such premiums may be withdrawn , but in such case, the value allowed will be based on an interest rate of one and one-half percent rather than two percent. Furthermore , if the withdrawal takes place in the twelve months following deposit, no interest whatever will be allowed. At the death of the Insured the Company will return all premiums paid in advance which have not yet become due discounted at the same rate as was allowed on such premiums. EXAMINATIONS 28. On business where the rules require a medical examination , the Agent should personally see that his applicant is examined the same day the application is written. He should not leave the blank with the doctor without further attention . He should see that the doctor goes to the applicant at once and makes the examination. It is his duty to do this, and it is the Agent 's duty to insist that this be done. Examinations should always be made by the Company's appointed examiner. If there be no appointed examiner , the Agent should use the best physician for- his examinations until an examiner is appointed . Whenever an examination is made by any other Doctor than the appointed examiner, the Agent must give a complete report covering his reasons , said report must be attached to application. 29. If the insurance applied for is $10,000, or over, the examiner must forward a specimen of the applicant's urine to the Home Office for microscopical examination. 30. Where an applicant already has insurance in the Company and the new insur- ance applied for would bring his total insurance with the Company up to $10,000, only one new examination is required , but a specimen of the urine must be forwarded to the Home Office. DELIVERY OF POLICIES 31. Policies must be immediately delivered by the Agent in person . They should never be mailed or sent to the Insured in any other manner, and must never be delivered to the Insured without settlement of the premium The Agent is responsible for the first premium on all policies issued and sent to him for delivery. If an extra policy is issued without settlement , or if the plan is changed thereby changing the settlement , or if, for any other reason , a policy is sent MILK DRIVERS AND DAIRY EMPLOYEES LOCAL 537 901 to the Agent without settlement having been made, the Agent must, before delivery, obtain settlement according to the rules of the Company. If any such policy is not delivered, it may be returned to the Company within thirty days from the date of issue, but not after that time. If the Agent retains the policy for a longer period than thirty days, or does not make remittance within that time, he is responsible for the premium and must immediately remit the same. If the policy is returned, the Agent is liable for the fees and charges, according to the rules of the Company. The Company does not issue "C.O.D." or "Approval" business and no policies will be issued without full settlement, except extra policies. Whenever a policy is returned as "Not Delivered" it must be accompanied by the following: 1. A statement of the reason why delivery was not made. II. The binding receipt must be taken up and attached to the policy. III. The settlement must have been returned to the applicant and a statement by the Agent that such has been done. Whenever a policy is issued at a standard premium and is sent to the Agent for delivery and is returned within the thirty days allowed for delivery, the Agent will be charged with the medical examiner's fee, and the inspection fee. If an application is written in violation of any of the rules of the Company, the Agent will be charged with the fees , as above stated , whether the policy is issued or not. A policy cannot be returned as "Not Delivered," nor any credit given after the thirty days allowed for delivery. Under no circumstances can this rule be violated. 32. If there has been any change in the health , habits, or occupation of the Insured, or if the Agent has received information which leads him to believe that the risk has become impaired or is less desirable than was represented , he must withhold the policy and return it immediately to the Home Office with a full statement of the conditions which made the withholding of the policy necessary. 33. The Agent must never allow a policy sent to him for delivery to go out of his hands unless the premium required by the same has been paid during the lifetime and good health of the Insured. Policies cannot be left with the Insured or any one else for examination or for any other purpose unless the premium has been paid. This rule is absolute. REMITTANCES 34. All settlements of premiums must be remitted as soon as received . An Agent is not permitted to hold settlements in any form. INSURANCE OF WOMEN 35. The application of a married woman will not be considered unless the husband carries an equal or greater amount of insurance on his own life , provided that he is insurable. International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Milk Drivers and Dairy Employees Local 537 and Jack M. Lohman, d/b/a Lohman Sales Company. Case No. 37-CC-47 (formerly 30-CC-47). August 10, 1961 DECISION AND ORDER On June 6, 1960, Trial Examiner Martin S. Bennett issued his Intermediate 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent did not engage in certain other unfair labor practices 132 NLRB No. 67.