Metropolitan Life Insurance Co.

972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to bargain collectively as aforesaid , nor will we in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the right to bargain collectively through the said Union, or any other labor organization -of their own choosing. 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, 720, Bulkley Building, 1501 Euclid Avenue , Cleveland, Ohio, 44115, Telephone No. Main 1-4465, if they have any question concerning this notice or compliance with its provisions. Metropolitan Life Insurance Company and Insurance Workers International Union, AFL-CIO. Case No. 18-CA-5981. Apra' 20, 1964 DECISION AND ORDER On February 20, 1964, Trial Examiner Samuel Ross issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision. 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 Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' i We note . that in the representation proceeding herein, the parties incorporated by reference and made a part thereof the record in a prior proceeding involving the same parties (Metropolitan Life Insurance Company, 138 NLRB 565 ). The parties agreed that, with respect to the scope of the unit , the factual and legal issues were essentially similar to those in the earlier case In that case, in finding appropriate for collective -bargaining purposes a unit composed of debit agents limited to Respondent's district offices located in a separate and distinct geographic area, the Board relied among other elements on the facts that the agents in each district office were under the direct supervision of the district manager, that virtually no interchange or other contact took place between agents of differ- ent districts, and that each district office was a separate administrative entity thiough which Respondent conducted its business . In view of its earlier findings in the representa- tion case, the Board subsequently found that the Respondent violated Section 8(a) (5) by refusing to bargain with the union certified as the exclusive bargaining agent in such appropriate unit. See Metropolitan Life Insurance Co., 141 NLRB 337, enfd 141 F. 2d 337 (C.A. 3). 146 NLRB No. 116. METROPOLITAN LIFE INSURANCE COMPANY 973 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' MEMBER LEEnoM, dissenting : For the reasons stated in the dissenting opinion in Metropolitan Life Insurance Company, 144 NLRB 149, I agree with the Respond- ent's contention that the certified unit involved in this proceeding is inappropriate. Accordingly, I would dismiss this complaint which is based on nothing more than the Respondent's refusal to bargain in an inappropriate unit. 2 The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that Respondent , Metropolitan Life Insurance Company, its officers, agents, successors, and assigns , shall: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on October 30, 1963 , by Insurance Workers International Union, AFL-CIO (herein called the Union), the General Counsel of the National Labor Relations Board issued a complaint dated December 9, 1963, amended on December 11, 1963, alleging that Metropolitan Life Insurance Company (herein called the Respondent or the Company ) had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In substance the complaint as amended alleges that on October 14, 1963, the Union was certified by the Board as the exclusive collective-bargaining representative of the employees of the Company in a unit previously found by the Board to be appropriate for the purposes of collective bargaining , that on October 15, 1963, and thereafter, the Union requested the Respondent Company to bargain collectively with it as the representative of the employees in the said unit , and that on and since October 24, 1963, the Respondent has refused to bargain with the Union as such representative. On December 18, 1963 , the Respondent filed an answer to the complaint , amended on January 13, 1964, denying the substantive allegations of the complaint and the commission of unfair labor practices, but admitting that a secret-ballot election had been conducted by the Regional Director in the unit described in the complaint, that the Union had received a majority of the ballots cast at the election held by the Regional Director among the employees in the said unit , that the Union had been certified as the bargaining representative of the employees in the said unit, that the Union had requested the Company to bargain collectively in respect to the wages and other terms and conditions of employment of the employees in the said unit, and that the Company had refused to bargain with the Union as such representative. In addition, the answer asserted as affirmative defenses that the unit described in the complaint was not appropriate for purposes of collective bargaining , and that the Board had violated the provisions of Section 9(c)(5) of the Act in determining that the said unit was appropriate because it thereby gave controlling effect to the extent to which the employees had organized. On January 17, 1964, the General Counsel of the National Labor Relations Board served and filed upon the Respondent and the Union a motion for judgment on the pleadings in which he asserted that the essential allegations of the complaint had been admitted by the Respondent's answer, that the only issues raised by the Respondent were those which had already been litigated and disposed of by the Board in the prior representation proceedings and that therefore no issue of fact or law remained to be determined in the instant proceeding which would require the holding of a hearing or the taking of testimony. On January 22, 1964, the 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union also filed and served upon the parties a motion for judgment on the pleadings .in which it adopted as its grounds those set forth in the General Counsel's like motion. The said motions having been referred to Trial Examiner Samuel Ross :for ruling and determination, an order to show cause was issued directing the Respondent to state on or before January 28, 1964, what if any newly discovered .or other evidence unavailable at the time of the representation proceedings, it intended to present if a hearing in this proceeding were held. On January 27, 1964, in .response to said order to show cause, the Respondent filed a statement in opposition to the motion of the General Counsel for judgment on the pleadings, and a cross- .motion for judgment on the pleadings, in which it asserted that the action of the Board, in designating the unit set forth in the complaint as appropriate for purposes .of collective bargaining, "was clearly inappropriate under Section 9 of the Act," that the Board had acted arbitrarily and capriciously in determining that said bargaining unit was appropriate, that the Board's unit determination had been con- trolled by the extent to which employees had organized, in violation of Section '9 (c) (5) of the Act, and that the inclusion of Metropolitan insurance consultants in -a unit of agents was arbitrary and capricious because the Union cannot and will not fairly represent these employees. Accordingly, since by their respective motions for judgment on the pleadings, the parties obviously were in agreement that there are no issues Of fact or new evidence to be considered in this proceeding other than that which had already been con- -sidered and decided by the Board in the prior representation proceeding, on January 28, 1964, the Trial Examiner notified the parties that the hearing was -canceled and the notice of hearing vacated, and that disposition of this matter would be made in accordance with the pleadings and proceedings heretofore had herein. Upon the entire record in this case and in the prior representation proceeding, the -Trial Examiner makes the following: FINDINGS OF FACT 1. COMMERCE The Respondent Company, a New York corporation whose principal office is located in New York, New York, is engaged in the State of New York and various -other States of the United States in the business of selling and issuing life, industrial, and personal health insurance policies.' The Company presently has in effect in -excess of 44,000,000 policies of insurance having a total face value in excess of $94,000,000,000. It presently has policies of insurance in effect in the State of Illinois valued in excess of $4,000,000 from which it derives revenues in excess of $50,000. During the past calendar year, in the operation of its business at its ,Chicago, Illinois, offices, the Company has received premiums in excess of $500,000 from policyholders located outside the State of Illinois, and has paid claims in -excess of $50,000 to claimants located outside the State of Illinois. On the fore- -going,admitted allegations of the complaint, the Trial Examiner finds and concludes -that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and the Trial Examiner finds that the -Charging Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The representation proceeding On October 4, 1963 , a secret-ballot election was conducted under the supervision -of the Regional Director for the Thirteenth Region of the National Labor Relations Board among the employees of the Respondent in the following described unit: All Metropolitan insurance consultants and all canvassing agents and regular and office accounts agents of the Employer at the district offices and detached offices located within the city limits of Chicago , Illinois, but excluding retired agents, managers, assistant managers, cashiers, clerical employees , secretaries, professional employees, guards, watchmen, and supervisors as defined in the Act. i Only the Company's district and detached offices located within the city limits of -Chicago, Illinois , are involved in this proceeding. METROPOLITAN LIFE INSURANCE COMPANY 975 The Charging Union received.a majority of the votes cast in the said election, and on October 14, 1964, the Regional Director certified the Union as the exclusive bargaining representative of the employees in the said unit. Following the election, on or about October 15, 1963, the Union requested the Respondent Company to bargain collectively with it in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of the employees of the Respondent in the unit described above. Thereafter, on or about October 24, 1963, the Respond- ent Company refused to bargain collectively with the Union as the representative of the employees in the said unit, and at all times since that date continued to refuse so to do. B. The issues The Respondent's refusal to recognize and bargain with the Union as the repre- sentatives of the employees in the unit described above is predicated solely on its contention that the unit is not appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act, that the Board in determining, in the prior representation case,2 that the unit was appropriate, gave controlling effect to the extent to which the employees had organized in violation of Section 9(c)(5) of the Act, and that the inclusion of Metropolitan insurance consultants in the unit of agents is likewise arbitrary and capricious because "the Union cannot and will not fairly represent these employees." C. Rulings on the motions All of the issues which the Respondent asserts as defenses to the charges of unfair labor practices in this case were the subject of testimony, briefs, and argument in the prior representation proceeding and were considered by the Board in its deter- mination that the unit described above was an appropriate unit. In its opposition to the motions for judgment on the pleadings in his proceeding, and in support of its cross-motion for such judgment, the Respondent does not seek to set forth any new facts which have not already been considered by the Board. It is well settled that, absent newly discovered evidence, the issues raised and determined in the prior representation proceeding may not be relitigated in the complaint proceeding.3 There is, therefore, no reason or justification for relitigating these issues in the in- stant proceeding. Moreover, it is equally clear that the Trial Examiner is bound by the Board's earlier unit determination and its ensuing certification of the Union as the collective-bargaining representative of the employees in the said unit? Ac- cordingly, the Trial Examiner concludes that the motions of the General Counsel and the Union for judgment on the pleadings should be, and they hereby are, granted, and the cross-motion of the Respondent to dismiss the complaint and revoke the certification of the Union is denied. D. Additional findings In the light of the foregoing, the Trial Examiner further finds that the unit de- scribed above is an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act, that the Union, having been duly designated by a majority of the employees involved, is the exclusive collective-bargaining repre- sentative of all the employees in the said unit within the meaning of Section 9(a) of the Act, and that by refusing on and after October 24, 1963, to bargain with the Union as the collective-bargaining representative of said employees, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 2Metropolitan Life Insurance Company, 144, NLRB 149 3 Pittsburgh Plate Glass Company, v. NLRB., 313 U.S. 146, 157-158; N L lt.S. v. American Steel Buck Corp, 227 F 2d 927, 929 (C.A. 2) ; Metropolitan Life Ins urance Company, 141 NLRB 1074; Metropolitan Life Insurance Company, 141 NLRB 337. 4,Metropohtan Life Insurance Company, 141 NLRB 337; Metropolitan Life Insurance Company, 142 NLRB 491; Air Control Products of St. Petersburg, Inc., 139 NLRB 413; Royal McBee Corporation, 133 NLRB 1450. 744-670-65-vol. 146-63 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY . , Having found that the Respondent has engaged in certain unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and the entire record in this case, and in the prior representative proceeding, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce, within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All Metropolitan insurance consultants and all canvassing agents and regular and office account agents of the Employer at the district offices and detached offices located within the city limits of Chicago, Illinois, but excluding retired agents, man- agers, assistant managers, cashiers, clerical employees, secretaries, professional em- ployees, guards, watchmen, 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. Since on or about October 14, 1963, the Union has been the representative for the purposes of collective bargaining of the employees in the unit described above. 5. By refusing to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit on October 24, 1963, and thereafter, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case and in the prior representation proceeding, the Trial Examiner recommends that the Respondent, Metropolitan Life Insurance Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Insurance Workers International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the fol- lowing unit: All Metropolitan insurance consultants and all canvassing agents and regular and office account agents of the Employer at the district offices and detached offices located within the city limits of Chicago, Illinois, but excluding retired agents man- agers, assistant managers, cashiers, clerical employees, secretaries, professional em- ployees, guards, watchmen, and supervisors as defined in the Act. (b) Interfering with the efforts of Insurance Workers International Union, AFL- CIO, to negotiate for or represent the employees in the said appropriate unit as the exclusive bargaining agent. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively with Insurance Workers International Union, AFL-CIO, as the exclusive representative of all the employees in the ap- propriate unit described above, with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment, and, if an agreement is reached, em- body it in a signed contract. (b) Post at its district offices and detached offices located within the city limits of Chicago, Illinois, copies of the attached notice marked "Appendix." 5 Conies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Respondent's representative, be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, 5In 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 is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." GRADWOHL HOUSE, INC. 977 in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Thirteenth Region, in writing , within 20 days from the receipt of this Decision and Recommended Order, what steps the Re- spondent has taken to comply herewith .6 6In 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." 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 National Labor Rela- tions Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with Insurance Workers Inter- national Union, AFL-CIO, as the exclusive bargaining representative of all em- ployees in the bargaining unit described below concerning rates of pay, wages, hours of employment, and other conditions of employment , and, if an under- standing is reached, embody it in a signed agreement . The bargaining unit is: All Metropolitan insurance consultants and all canvassing agents and regular and office account agents of the Employer at the district offices and detached offices located within the city limits of Chicago , Illinois, but excluding retired agents , managers, assistant managers, cashiers, clerical employees, secretaries, professional employees, guards, watchmen, and su- pervisors as defined in the Act. WE WILL NOT refuse to bargain collectively as aforesaid , nor will we in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to bargain collectively through the 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, Midland Building 176 West Adams Street, Chicago, Illinois, 60603, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Gradwohl House, Inc. and Carpet, Linoleum and Soft Tile Layers Union No. 1238, affiliated with the International Brotherhood of Painters, Decorators and Paper Hangers of America, AFL- CIO. Case No. A 0-73. April 20, 1964 ADVISORY OPINION This is a petition filed on March 9, 1964, by Carpet, Linoleum and Soft Tile Layers Union No. 1238, affiliated with the International Brotherhood of Painters, Decorators and Paper Hangers of America, AFL-CIO, herein called the Petitioner , for an Advisory Opinion in conformity with Section 102.98 and 102.99 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended. 146 NLRB No. 117.