Metropolitan Life Insurance Co.

METROPOLITAN LIFE INSURANCE COMPANY V. THE REMEDY 657 Having found and concluded that the Respondent Employer rendered unlawful aid and assistance to the RHA , and has thereby interefered with, restrained, and coerced employees who were members of the RHA, I shall recommend that it cease and desist therefrom or in any like or related manner unlawfully interfering with, restrain, or coerce its employees. Although it has been generally established on the record that the RHA is now nonexistent, I shall nonetheless recommend that the Respondent Employer affirma- tively withdraw and withhold all recognition it has granted the RHA or any other labor organization as representative of its employees, other than those employees of Alton Co., until such time as a representative has been chosen in an appropriate bargaining unit pursuant to a Board-conducted election . As the SIU has been found to be properly certified as the representative of Alton's employees, I shall not require Respondent Employer to withdraw and withhold recognition of it pending any future determination by the Board of the representative status of all Respond- ent Employer's employees. [Recommended Order omitted from publication.] Metropolitan Life Insurance Company and Insurance Workers International Union, AFL-CIO. Case No. 13-CA-6511. Decem- ber 29, 1964 DECISION AND ORDER On October 2, 1964, Trial Examiner Sidney D. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor' prac- tices and recommending that it cease and desist therefrom. and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and Recommended Order. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Brown]. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions of the Respond- ent, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner, and orders that the Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 150 NLRB No. 59. 658 DECISIONS, OF NATIONAL? LABOR' RELATIONS BOARD TRIAL EXAMINER'S DECISION In this proceeding, pursuant to Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, the complaint 1 alleges, in substance, that: (1) All insurance consultants , canvassing agents„ and regular and office account agents of the Respondent in its district office in Joliet , Illinois, with specified excep- tions, constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. , - 1. (2) On or about May 1, 1964, the employees of the Respondent in said unit, in a secret election, designated and selected Insurance Workers International Union, AFL- CIO, herein called the Union, as their representative for purposes of collective bar- gaining with the Respondent and on or about May 11, 1964, the Regional Director of Region 13 , certified the Union as the _representative, of the employees in said unit and the Union continues to be such representative., (3) On or about May 14, 1964, and continuing thereafter , the Union has requested the Respondent to bargain collectively with it, as the exclusive collective -bargaining representative of all the employees in said unit, but on or about May 21, 1964, the Respondent refused , and at all times thereafter continues to refuse , to recognize or bargain collectively with the Union as the exclusive collective -bargaining represen- tative of all the employees in said unit. (4) By such conduct, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) and Section 2(6) and (7) of the Act. Respondent's answer, by failing to deny, admitted the jurisdictional and proce- dural allegations of the complaint and the status of the Union as a labor organiza- tion. The answer admits that : A secret ballot election was conducted in the unit set forth in the complaint ; the Union received a majority of the ballots at said election; the Regional Director certified' the Union as the 'bargaining representative of the employees in said unit ; the Union has requested the Respondent to bargain with it as the exclusive collective -bargaining representative of the empoyees in said unit; and the Respondent has refused to do so. The answer denied all other allega- tidns of the complaint , including those relating to the appropriateness -of the bargain- ing unit, the status of the Union as exclusive representative of all employees in said unit and the commission by the Respondent of any unfair labor practices within the meaning of the Act. As affirmative defenses , the Respondent alleged that: (1) the unit does not constitute a unit appropriate for collective -bargaining purposes within the meaning of Section 9(b) of the Act ; and (2 ) the, Board violated Section 9(c)(5) of the Act in determining that the unit was appropriate for collective- bargaining purposes by giving controlling effect to the extent to which the employees had organized. On August 10, 1964, the General' Counsel filed and served a motion for judgment on the pleadings. In support thereof he contended that : ( 1) the Respondent's answer admitted all the material allegations of the complaint; (2) the affirmative defenses pleaded by the Respondent have been raised and litigated in the underlying repre- sentation proceeding ,2 and Respondent may not raise these ' issues in this complaint proceeding before the Trial Examiner, who is bound by the Board's decision; and (3) the allegations of the complaint must be found to' be true and the Trial Exam- iner should make findings of fact and conclusions of law based thereon. The motion was referred , by the Regional Director, to Trial Examiner Sidney D. Goldberg. On August 14, 1964, I issued and caused to be served upon all the parties, an order directing the Respondent to show cause, on or before August 28,. 1964, why an order should not be made herein : ( 1) vacating the notice of hearing for failure of the pleadings to raise any issue of fact; (2) setting a date for submission of briefs; and (3 ) deeming this proceeding submitted for decision on the pleadings and briefs. The order also directed Respondent to set forth the evidence , if any, newly discov- ered or not available at the time of the representation proceeding, which it would offer at any hearing held in this complaint proceeding.. In answer to the order to show cause, the Charging Party joined in the motion of the General Counsel and the General Counsel ' filed no additional return . Respond- ent, on August 21, 1964, filed a statement in opposition to motion of General Coun- sel for judgment on the pleadings and cross-motion for judgment on the pleadings, from which it appeared that Respondent relied , for its defense herein, on the record in Case No. 13-RC-9960 and that its cross -motion for dismissal of the complaint and revocation of the certification was based upon its contentions that : ( 1) The Board i Issued July 24, 1964, on a charge filed June 18, 1964. 813-RC-9960. METROPOLITAN LIFE' INSURANCE COMPANY 659 acted arbitrarily and capriciously in determining a bargaining unit inappropriate under Section 9 of the Act; (2) the Board's unit determination was controlled, in violation of'Section 9(c)(5) of the Act, by the extent to which the employees had organized ; and (3 ) the Board's inclusion of insurance consultants in a unit of debit agents was arbitrary and capriciou's because, as the evidence in the representation proceeding demonstrated, the Union. cannot • and will not fairly represent these employees. It appearing, therefore, that there were no issues of fact herein requiring a hear- ing before a Trial Examiner for the purpose of issuing a Decision, on September 10, 1964, I ,issued an order vacating the notice of hearing and directing that this case be deemed subliiitte'd-for'decision on'the pleadiiigs;'the motion papers, and the record in Case No. 13-RC-9960. ' • ' Rulings on Motions Two issues are, raised by Respondent's answer in this case: (i) whether the unit described in the complaint, for the employees in which the Union has been certified as the collective-bargaining representative, is an appropriate unit for such purposes within the meaning of Section 9(b) of the Act and (ii) whether the Board, in deter- mining that said unit was appropriate, for collective-bargaining purposes, violated Section -9(c) (5) 'by, giving controlling"effect to the extent to which the employees had organized. ' , - •. ' U) . , . , • The appropriateness of the unit was litigated by the parties and decided by the Board 'in 'the underlying, representation proceeding and may not be relitigated- absent newly discovered evidence-in this one. A's the Supreme Court stated, in Pittsburgh Plate Glass Co. 'v. N.L.R.B. (313 U.S.' 146 at 148) : "The unit proceed- ing and this complaint on unfair 'labor practices are really one." Accordingly, the decision of the Board, which is' binding upon me;'is dispositive of this question.3 The affirmative defense that the Board, in determining that the unit was appro- priate for collective-bargaining purposes, gave controlling effect to the extent of organization is raised, of course, for the first time'ih this'proceeding,4 but Respond- ent did not propose, in its return to the. order, to, show cause in this case, to offer evi- dence in support of this defense.5 , It is apparent' from' the foregoing-and alfbp rfies, by'their motions for judgment on the pleadings, concede-that there are no factual issues litigable before me and that the legal issue h'as been decided by the Board: Accordingly, the General Coun- sel's motion is granted, and, on the basis of "the- entire record herein, including the representation, case, I make the followings ','.FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation having its principal office in the city and State of New'York and offices in the States of Illinois, Ohio, and many other States, is engaged', at said offices ,in selling and " issuing life, industrial, and personal health insurance policies. It has in effect more'than 44 million policies of insurance having a face value of more ' than $94 billion; including , policies in effect in the State' of Illinois valued at more than $4 million from which it annually derives revenues in excess of $50 ,000. During the calendar year 1963 Respondent received, at its office at Joliet, Illinois, premiums in excess,of ,$500 ,000 from policyholders outside the State of Illinois; and, paid dlitmore than ' $50;000 to claimants outside the State of Illinois. S Metropolitan Life Insurance Company,' 141 NLRB 337, enfd. 328 F. 2d 820 Metropolitan Life Insurance Company, 141 NLRB 1074, enfd. 330 F. 2d 62 (C.A. 6) ; Esquire, Inc., 109 NLRB 530, 538-539; enfd . 222 F. ' 2d `253 (C.A. 7). •• " 4 Respondent stipulated, as the record In Case No. 13-RC-9960, the record in Case No. 13- RC-9051 in which the Board ( 144 NLRB'149 ), modifying the Decision of the Regional Di- rector,, held that a.unit, limited to, certain of respondent 's employees within the cityiof Chicago area was appropriate and that Inclusion of others in designated suburban areas-• Including Will County in which Joliet , is located-was not required . In that case respond- ent, in addition to questioning the appropriateness of the unit because it contained "consultants" as well = as "debit agents:!, and, others , asked that the petition be dismissed because "the petition wa&basGd ,sole)y on the union's extent of organization ." In that.case, the union was certified and,iupon respondent :s admitted refusal to , bargain, the Board.held that respondent ,violated Section 8 ( a) (5) (146 . NLRB 972),. , s The contention may,, have been introduced- into this , proceeding at this time so that, at some later' date , a court. of aljpgals, may, be requested so to , conclude ( see Metropolitan Life Insurance Company v. N.L.R.B., 327 F. 2d 906 (C.A. 1), setting aside 142 NLRB 491). 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The Union is and, at all times material herein, was a labor organization. III. THE UNFAIR LABOR PRACTICE A. The representation proceeding 1. The unit All Metropolitan Insurance consultants and all canvassing agents, and regular and office account agents of the Respondent at the Joliet district office located at Joliet, Illinois, excluding retired agents, managers, assistant managers, cashiers, clerical employees, secretaries, professional employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining with Respondent within the meaning of Section 9 (b) of the Act. 2. The certification On or about May 1, 1964, a majority of the employees of Respondent in the unit described above, by a secret ballot election conducted under the supervision of the Regional Director for Region 13 of the National Labor Relations Board, desig- nated and selected the Union as their representative for the purposes of collective bargaining with Respondent. On or about May 11, 1964, said Regional Director certified the Union as the exclusive collective-bargaining representative of the employ- ees 'in said unit. The Union is, and at all times since May 11, 1964, has been, the representative for the purpose of collective bargaining with respect to rates of pay, wages, hours of empoyment, and other terms and conditions of employment of the employees in the unit described above. 3. The request to bargain and Respondent's refusal On or about May 14, 1964, and continuing to date, the Union has requested, and is requesting, Respondent to bargain collectively with it as the exclusive collective- bargaining representative of all the employees of Respondent in the unit described above. On or about May 21, 1964, Respondent refused , and at all times thereafter continues to refuse, to bargain collectively with the Union as the exclusive collective- bargaining representative of all the employees in the unit described above in that on or about May 21, 1964, and at all times since, Respondent has refused , and con- tinues to refuse, to meet, negotiate, or discuss with the Union matters with respect to rates of pay, wages, hours, and other terms and.conditions of employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations set forth 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. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take affirma- tive action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and the entire record in this case, including the representation proceeding, I reach the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Sec- tion 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 Respondent at the Joliet district office located at Joliet, Illinois, excluding retired agents , managers, assistant managers, cashiers, cleri- cal employees , secretaries, professional employees,' guards, watchmen, and super- visors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act. METROPOLITAN LIFE INSURANCE COMPANY' 661 4. By refusing to bargain collectively with the Union as the exclusive representa- tive of the employees in the appropriate unit, on May 21, 1964, and thereafter, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (5) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 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 representation proceeding, it is recommended that 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 following unit: All Metropolitan Insurance consultants and all canvassing agents, and regular and office account agents at the Joliet district office located at Joliet, Illinois, excluding retired agents, managers, assistant managers, cashiers, clerical employees, secretaries, professional employees, 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 their exclusive bargaining agent. 2. Take the following affirmative action to 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 appro- priate 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 district office located at Joliet, Illinois, copies of the attached notice marked "Appendix." 6 Copies of the said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by Respondent's representative, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith? 6 In the event that this Recommended Order Is 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 the 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." 7 In the event that this Recommended Order Is 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 understand- ing is reached, embody it in a signed agreement. The bargaining unit is: All Metropolitan Insurance consultants and all canvassing agents, and regu- lar and office account agents of the Employer at the Joliet district office 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD located at Joliet, Illinois, excluding retired agents , managers, assistant man- agers, cashiers, clerical employees , guards, watchmen,, and supervisors 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, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any question concerning this notice or com- pliance with its provisions. Kit Manufacturing Company, Inc. and Sheet Metal Workers' International Association , Local Union 213, AFL-CIO. Case No. 19-CA-2754. December 29, 196.E DECISION AND ORDER On July 16, 1964, Trial Examiner Irving Rogosin issued his Deci- sion 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 National Labor Relations Act, and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds 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 1 the findings, conclusions, and recommendations of the Trial Examiner 2 1 In adopting the Trial Examiner's Decision, we reject Respondent's contention that it may insist upon a contractual clause granting it use of the union label, and we conclude, in agreement with the Trial Examiner, that this demand Is not a mandatory subject of bargaining because Its relation to wages, hours , or other terms or conditions of employ- ment is at best remote and speculative . See Detroit Resilient Floor Decorators Local Union No. f265, of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO ( Mill Floor Covering, Inc.), 136 NLRB 769. As Respondent has been found in violation of Section 8(a)(1), (3 ), and (5) of the Act in other cases, we adopt the Trial Examiner's Recommended broad 8 (a) (1) Order. 2 Member Brown concurs In the result . 150 NLRB No. 62.