Metropolitan Life Insurance Co.

METROPOLITAN LIFE INSURANCE COMPANY V. THE REMEDY 337 Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Trial Examiner has found that the Respondent has refused to bargain with the Union as the exclusive representative of the employees in the appropriate unit. It will therefore be recommended that, upon request, Respondent bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit and that such bargaining take place in St. Louis, Missouri . If an understanding is reached, such understanding is to be embodied in a signed agreement . Further, Respondent is to grant to authorized NMU patrolmen access to the Eleanor Gordon under the same blanket insurance policy with limits of $25 ,000/$50,000, as has proved satisfactory to all other shipping companies with agreements with NMU. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Mid-America Transportation Company is an employer within the meaning of Section 2 (2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. National Maritime Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All unlicensed employees of Respondent's towboat , Eleanor Gordon, excluding masters, mates, pilots, chief engineers , assistant engineers, office clerical employees, guards, professional employees , and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On February 28, 1962, and at all times material thereafter , NMU was and now is the exclusive representative of Respondent's employees in the said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By its adamant insistence on and after April 3, 1962, that negotiations between Respondent and NMU take place only in the State of Tennessee and by insisting upon unnecessary and unreasonable conditions for granting permission to union patrol- men to board the Eleanor Gordon on and after May 11 , 1962, Respondent has re- fused to bargain with the Union as the exclusive representative of all its employees in the above-described appropriate unit , and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By the conduct described in paragraph 5, above, Respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act , and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Metropolitan Life Insurance Company and Insurance Workers International Union, AFL-CIO. Case No. 4-CA-2769. March 11, 1963 DECISION AND ORDER On January 7, 1963, Trial Examiner Samuel M. Singer 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 attached Inter- 141 NLRB No. 37. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions, and the entire record in this case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following modifications : Substitute the following for paragraph 1(b) of the Recommended Order: "Interfering with the efforts of the Insurance Workers Inter- national Union, AFL-CIO, to negotiate for or represent the em- ployees in the said appropriate unit as the exclusive bargaining agent." Substitute the following for the last paragraph of the Appendix to the Intermediate Report : WE WILL NOT interfere with the efforts of the Insurance Work- ers international Union, AFL-CIO, to negctiate for or represent the employees in the said appropriate unit as the exclusive bar- gaining agent. MEMBERS RODGERS and LEEDOM, dissenting : In our dissenting opinion in the representation proceeding which underlies this complaint case, 138 NLRB 565, we indicated that we would have found inappropriate the unit that the Union was seeking. We adhere to our views there expressed, and would accordingly dis- miss the instant complaint. I As set forth in footnote 1 of the Intermediate Report, at the hearing Respondent and the Union indicated their intention to move the Board to amend the unit description herein for purposes of clarification . However, no such motion has been received by the Board and no exception was taken to the Trial Examiner 's denial of Respondent's motion made to him. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed October 29, 1962, by Insurance Workers International Union, AFL-CIO, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fourth Region, issued a complaint on November 9, 1962, alleging that Metropolitan Life Insurance Company, Respondent herein, refused to bargain collectively with the Union, the certified majority representative of Respond- ent's employees in an appropriate bargaining unit . Respondent admits that it has refused to bargain with the Union but contends that the Union was not properly certified, in that the unit found by the Board in the representation proceeding, Case No. 4-RC-4865, was not an appropriate unit. Pursuant to due notice, a hearing was held before Trial Examiner Samuel M. Singer in Philadelphia, Pennsylvania, on December 17, 1962. All parties were rep- resented by counsel and were afforded full opportunity to be heard and to adduce evidence. METROPOLITAN LIFE INSURANCE COMPANY 339 Upon the entire record in the case, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent, a New York corporation with its principal office in New York City, is engaged in the business of selling various types of insurance throughout the United States and Canada, including the State of Delaware Among its numerous offices, Respondent maintains two district offices in the Metropolitan Wilmington, Dela- ware, area which are involved in this proceeding. During the past year, a repre- sentative period, Respondent, in the course and conduct of its business operations, derived an income in excess of $1,000,000, of which more than $50,000 (derived from premiums collected within the State of Delaware) was remitted from its Delaware offices. Upon the foregoing facts, Respondent concedes, and I find, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Insurance Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Upon a petition for certification filed by the Union in Case No. 4-RC-4865, and after a hearing held on March 20 and 21, 1962, the Board on September 13, 1962, issued a Decision and Direction of Election (138 NLRB 565) in which it directed an election in a unit consisting of certain employees i at Respondent's two district offices (Brandywine and Kirkwood) in the Metropolitan Wilmington area. On October 5, 1962, in an election by secret ballot conducted under the supervision of the Regional Director for the Fourth Region, a majority of the employees selected the Union as their representative, and on October 15, 1962, the Regional Director certified the Union as the exclusive bargaining representative of the employees in the appropriate unit. The complaint alleges that commencing on or about October 17, 1962, and con- tinuing to date, the Union has requested Respondent to bargain with it as the statu- tory bargaining representative of the employees in the unit found appropriate above but that Respondent has since on or about October 25, 1962, refused to bargain with it. Respondent in its answer admits its refusal to bargain with the Union, contending, by way of "affirmative" defenses, that the unit estab- lished by the Board is not appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act; and that the Board, contrary to the mandate of Section 9(c) (5) of the Act, gave "controlling effect to the extent to which the employees had organized" in determining the appropriate unit. Respondent at the hearing renewed these contentions, explaining that its objections are predicated on the geographical extent of the unit established by the Board and adding that the Board, by reason of establishing an "inappropriate" geographical unit, acted arbi- trarily and capriciously. However, Respondent conceded that its contentions have been raised previously in the representation proceeding, that they have been con- sidered by the Board, and that they have been decided adversely to it. Respondent did not seek to offer any new evidence and neither Respondent, nor any other party, called any witnesses. 1 The unit consists of: "All debit insurance agents, including all canvassing regular and office account agents selling industrial life insurance and other forms of insurance sold by the Company, but excluding independent agents, retired agents, Metropolitan Insurance consultants, managers, assistant managers, cashiers, clerical employees, secretaries, pro- fessional employees, guards, watchmen and supervisors as defined in the Act " In the instant complaint hearing, Respondent moved to amend the above unit descrip- tion by including certain "clarifying" language which, it was claimed, was Inadvertently omitted by the Board. Although the Union joined in the motion and the General Counsel did not specifically object thereto, I denied the motion on the ground that I considered myself without authority to amend the unit description in the Board's Decision and Direction of Election. The parties thereafter indicated that they would file a joint motion directly with the Board. Pending the Board's ruling on the proposed motion, I must find that the unit as hereinbefore set forth Is the appropriate bargaining unit. 708-006-64-vol. 141-23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The law is settled that, absent newly discovered evidence, the issues raised and determined in the prior representation proceeding may not be relitigated in the complaint proceeding, Pittsburgh Plate Glass Company v. N L.R.B., 313 U S. 146, 157-158; N.L.R.B. v. American Steel Buck Corp., 227 F. 2d 927, 929 (C.A. 2); N.L.R.B. v. Botany Worsted Mills, 133 F. 2d 876, 882 (C.A. 3); N.L.R.B. v. West Kentucky Coal Company, 152 F. 2d 198, 200-201 (C A. 6), cert. denied 328 U.S. 866; Quaker City Life Insurance Company, 138 NLRB 61 It is equally clear that as an Examiner of the Board, I am bound by the Board's earlier unit determination and the ensuing certification. West Kentucky Coal Co., supra, 152 F. 2d at p. 201; Air Control Products of St. Petersburg, Inc., 139 NLRB 413; Esquire, Inc, 109 NLRB 530, 539, enfd. 222 F. 2d 253 (C.A. 7). Accordingly, on the basis of the Board's prior determination in the representation proceeding, I find and conclude that during all times material herein, the Union has been, and now is, the certified collective-bargaining representative of Respondent's employees in the appropriate unit hereinbefore described. I further find and con- clude that Respondent has, since October 25, 1962, refused to bargain collectively with the Union as the exclusive representative of its employees in the unit; and that Respondent by such refusal has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and, derivatively, also Section 8(a)(1) of the Act. On the basis of the foregoing and upon the entire record in this and the repre- sentation proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Metropolitan Life Insurance Company, its agents, officers, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Insurance Workers International Union, AFL-CIO, as the duly certified exclusive bargaining representative of its employees at its Brandywine and Kirkwood district offices in the Metropolitan Wilmington, Delaware, area, in the following unit: All debit insurance agents, including all canvassing regular and office account agents selling industrial life insurance and other forms of insurance sold by the Company, but excluding independent agents, retired agents, Metropolitan Insurance consultants, managers, secretaries, assistant managers, cashiers, clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to bargain collectively through said Union, or any other labor organization of their own choosing. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively with the said certified Union as the exclu- sive 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 agreement is reached, embody it in a signed contract. (b) Post at its Brandywine and Kirkwood district offices, in the Metropolitan Wilmington, Delaware, area, copies of the attached notice marked "Appendix." 2 Copies of the said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof and 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director for the Fourth Region, in writing, within 20 days of the receipt of the Intermediate Report and Recommended Order, what steps it has taken to comply herewith? 2In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." JOINT COUNCIL OF TEAMSTERS NO. 38, ET AL., ETC. 341 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our employees that: WE WILL bargain collectively , upon request, with Insurance Workers Interna- tional Union, AFL-CIO, as the exclusive bargaining representative of all employees at the Brandywine and Kirkwood district offices in the Metropolitan Wilmington, Delaware, area , in the bargaining unit described below concerning wages, rates of pay, hours of employment, and other conditions of employment. and, if an understanding is reached , embody it in a signed agreement. The bargaining unit is: All debit insurance agents, including all canvassing regular and office account agents selling industrial life insurance and other forms of insurance sold by the Company , but excluding independent agents, retired agents, Metropolitan Insurance consultants , managers, assistant managers , cashiers, clerical employees , secretaries, professional employees, guards, watchmen, and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively as aforesaid , nor will we, In ariy like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to bargain collectively through said Union. METROPOLITAN LIFE INSURANCE COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia 7, Pennsylvania, Telephone No. Pennypacker 5-2612, if they have any question concerning this notice or compliance with its provisions. Joint Council of Teamsters No. 38, et al., Arden Farms Co., et al. and California Association of Employers . Case No. 20-CE-10- March 11, 1963 DECISION AND ORDER On August 15, 1962, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action as set forth in the attached Inter- mediate Report. Thereafter, the Respondent Unions and the Re- spondent Employers 1 filed exceptions to the Intermediate Report and supporting briefs 2 The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 1 The Respondent Unions and Respondent Employers are listed in the attached Schedules "A" and "B," respectively. 3 The Respondent Unions' request for oral argument is denied as the record , exceptions, and briefs adequately present the issues and positions of the parties. 141 NLRB No. 14.