Quaker City Life Insurance Co.

960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quaker City Life Insurance Company and Insurance Workers International Union, AFL-CIO, Petitioner. Case No. 5-RU- 3344. December 5, 1961 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 Robert W. Knadler, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire 'record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The appropriate unit : The Petitioner seeks a unit of all the employees in the Employer's Alexandria, Virginia, district office. This office consists of five debit agents, one district manager, and one office clerical employee. The Employer argues that the unit petitioned for is inappropriate since it includes an office clerical employee, and moreover that this is basically a district office unit of insurance agents which is not appro- priate in any event. The Employer's operations encompass 16 States and there are 6 dis- trict offices in Virginia with the closest one at Richmond, some 100 miles distant. All of the employees in the Alexandria district office are under the exclusive supervision of the district manager who re- ports directly to the home office in Philadelphia.' The duties of the office clerical include accepting and banking premi- ums collected by the agents, paying the agents, reporting claims, and making personnel reports to the home office, and whenever necessary, acting as secretary to the district manager. When so acting, she some- times handles correspondence to the home office regarding personnel matters. Like the insurance agents, she is bonded and licensed by the State of Virginia to sell insurance although it appears that she has never done so. Moreover, she is expected to be sufficiently conversant with the Employer's business to supply information to individuals seeking it. The office clerical and the insurance agents enjoy the same retirement plan, but their vacation and insurance plans differ to some extent. 1 Since the record indicates that the district manager exercises supervisory authority in the management of the district office and since no one objects to his exclusion , he shall be excluded 134 NLRB No. 114. QUAKER CITY LIFE INSURANCE COMPANY 961 The Employer argues that the office clerical should be excluded from the unit either as a confidential employee or as an office clerical em- ployee without a sufficient similarity of interest to warrant her inclu- sion in the unit of insurance agents. Although the record indicates that she handles personnel corre- spondence to the home office, the record nowhere indicates that she comes within the Board's definition 'of a confidential employee since she does not determine, formulate, nor effectuate management policy in the field of labor relations or assist anyone who does 2 Normally the Board will exclude office clericals from plant produc- tion and maintenance units. However, in other circumstances, similar to those in the instant case, for example, where storewide units of selling and nonselling employees are sought, the Board has found the overall storewide unit appropriate.3 The office clerical in the instant case is similarly situated, and moreover, as noted, above, she has a close association with the agents in the conduct of the Employer's district office operation, and general similarities of employment condi- tions and qualifications. Accordingly, we find that she may properly be included in the overall unit sought herein. 2. The Employer further contends that, in any event, the unit sought is basically a district office unit of insurance agents which is inappropriate as a matter of Board policy. Since 1944, when the Board decided Metropolitan Life Insurance Company, 56 NLRB 1635, it has been the policy of the Board to deny units of insurance agents less than statewide or companywide in scope 4 The reasons for this policy are stated in the Metropolitan Life de- cision where the Board said : 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. Accordingly, we are of the opinion that, in the absences of unusual circumstances, the practice of setting up units for insurance agents smaller that [sic] State-wide in scope should be avoided. In the instant case, since the Federation, the Inde- pendent, and the CIO are all actively engaged in a broad organi- zational program in Ohio, and since it may reasonably be antici- pated that one of these organizations may in the near future extend its membership to State-wide proportions, we are of the 2 Spencer Press , Incorporated, 121 NLRB 784 3 John Brenner Co, 129 NLRB 394. 4 However, this position has not been adopted by every succeeding Board Member. Member Fanning expressly rejected this Metropolitan Life rule in The Life Insurance Company of Virginia, 123 NLRB 610. 630849-62-vol 134-62 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. [Emphasis supplied.] 5 Clearly this language of the Metropolitan Life case indicates that the rule was adopted solely in anticipation of broader organization on a companywide or statewide basis, which at that time appeared im- minent. As a practical matter, however, such statewide or company- wide organization has not materialized, and the result of the rule has been to arrest the organizational development of insurance agents to an extent certainly never contemplated by the Act, or for that matter, by the Board that decided the Metropolitan Life case. There is no longer any rational basis for applying different rules of organization to the insurance industry than are applied to other industries. The rule was adopted for the purpose of permitting organization on a statewide or employerwide basis, which did not develop as anticipated. Contrary to our dissenting colleagues, we regard this as a valid reason for chang- ing the rule. Obviously, when the purpose for which a rule has been established fails, the rule should also fail. This is especially so with respect to a rule which unfairly prejudices the collective-bargaining rights of employees. Accordingly, in the future, the Board's policy will be not to preclude the organization of insurance agents into units of less than employerwide or statewide scope, and we shall apply our normal unit principles to the cases as they arise. In the instant case, upon the record as a whole, and especially in view of the autonomous day-to-day operation of the district office here, the overall immediate supervision by the district manager, the lack of contact or interchange among employees of the various district offices, and the absence of any administrative subdivision between the home office and the district office, we find the district office unit to be appropriate.' On the basis of the foregoing, we find that the following employees of the Employer's Alexandria, Virginia, office, constitute a unit ap- propriate for collective bargaining purposes : All employees, including debit agents and office clerical employees; but excluding the office manager, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBERS RODGERS and LEEDOM dissenting : We see no valid reason for departing from the Metropolitan Life rule which the Board adopted in 1944. Consequently, we would dis- miss the instant petition. Metropolitan Life Insurance Company, 56 NLRB 1635, 1640. In view of the unit findings in this case , we shall and hereby do deny the Employer's motion to dismiss the petition.