United Insurance Co. of America

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Insurance Company of America and Insurance Workers International Union, AFL-CIO. Case No. 5-CA-2930. July 08, 1965 DECISION AND ORDER On May 13, 1965, Trial Examiner Lloyd Buchanan issued his De- cision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the attached Trial Examiner's De- cision. Thereafter, the Respondent and the Charging Party filed exceptions to the Decision and supporting briefs.' Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Ex- aminer's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations 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 United Insurance Company of America, Baltimore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 The Respondent has requested oral argument Because, in our opinion, the record and briefs adequately set forth the issues and position of the parties, this request is hereby denied 2 In adopting the Trial Examiner's ultimate conclusion, we do not rely on his observa- tion, as set out in footnote 26 of his Decision that the demeanor of the debit agents to- ward admitted supervisors during the hearing was one indicating an employer-employee relationship. TRIAL EXAMINER'S DECISION The complaint herein (issued October 16, 1964; charge filed September 14, 1964), as amended, alleges that the Company has violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 73 Stat. 519, by refusing to bargain with the Union as the representative of the Company's employees in an appropriate unit i Averring that the debit agents referred to as employees are independent 1 The Union's motion to amend the complaint to include alleged violation of Section- 8 (a) (3) and independent violation of Section 8(a)(1) was denied 154 NLRB No. 9. UNITED INSURANCE COMPANY OF AMERICA 39 contractors, this issue having been reserved by stipulation entered into in the prior representation proceeding, the answer admits a request and refusal to bargain but denies that the unit is appropriate and further denies the allegations of violation. A hearing was held before Trial Examiner Lloyd Buchanan in Washington, D.C., on various dates between December 16 and 31, 1964. At the close of the hearing, counsel were heard in detailed oral argument. Briefs have been filed by the General Counsel, the Union, and the Company, the time to do so having been extended. It was agreed that the only substantive issue before us is whether the debit agents in the area described are employees or independent contractors .2 While the General Counsel made reference to the "tone" of the Company's letter of September 1, 1964, which was based on the issue of the status of debit agents, he agreed that there is no question of bad faith or refusal to bargain beyond that issue concerning the debit agents. Refusing to join in this agreement, counsel for the Union claimed that bad faith would further be shown in "a course of dealing and a pattern of resistance" by the Company. While we would in any event rely on the General Counsel's position rather than the Union's, it may be noted that the record on the issue of refusal to bargain is devoid of the course or pattern suggested. The Trial Examiner is concerned with the receipt of all available and relevant facts, letting the chips fall where they may (to coin a phrase). As for the role of counsel, I distinguish between an advocate arguing on the basis of the truth and available evidence, and a propagandist who limits the truth and would in his efforts intentionally seek to exclude relevant aspects This distinction is here noted, not to characterize counsel, but to indicate a need to supplement their efforts. If counsel for one party or another may feel aggrieved or adversely affected by receipt of such evidence, the Trial Examiner has here questioned witnesses or requested that counsel do so to elicit information which whether it favored one side or the other, appeared to be relevant. If the principles of full and fair inquiry are to be praised, let us practice them. I should be less than fair, however, if noting this I did not commend counsel on their evident preparation and able presentation. My early impression and throughout the hearing is supported by review after all of the evidence was in that there are some significant yet relatively few differences among the parties concerning the facts, and that, while there are some factual differ- ences to be resolved, our problem in the main is to decide what the facts adduced indicate as to the relationship between the Company and its debit agents. It is unfortunate that stipulations were not available to the extent that the facts as they now exist are not in dispute; much time and many pages of testimony could have been saved The issue of the relationship between the Company and its debit agents was tried in 1957 and thereafter before a Trial Examiner of the Board. The Board's Deci- sions 3 were thereafter respectively remanded and denied enforcement by the United States Court of Appeals for the Seventh Circuit.4 In its later opinion, listing some items to be considered, the court declared at page 89 that "the critical distinction between employees and independent contractors under the Act is the right to control the manner and means by which the agent conducts his business." 5 The Board has expressed itself similarly: "It is the right to control, rather than the exercise thereof, that determines the nature of the rela- tionship." 6 The court at the point noted continued with a reference to "the requisite control of manner or means." If not heretofore so fully emphasized although de- clared, it would appear that exercise of control is not necessary to a finding of einployer-employee status if the right to control be shown; and that the exercise of control is itself evidence that the right exists. Conversely, evidence of the Company's right and exercise of control is not minimized by other instances, where the Com- pany merely offers suggestions to the agent, or where use of a form is optional. 2As will be noted especially in connection with reference to various equivocal items, infra, and particularly to the group insurance plan, my concern is with evidence which tends to support one position or the other; not with circumstances which are consistent with both positions and therefore prove neither My duty to follow Board Decisions with respect to law and policy does not extend to acceptance as probative of an item which we can see is not probative. 3 United Insurance Company, 122 NLRB 911 ; 132 NLRB 885 * United Insurance Company of America, 272 F. 2d 446; 304 F. 2d 86. r, Such terminology as the reference to the agent's or "his" business is not determinative. 'Farmers Insurance Group, et al, 143 NLRB 240, 244, citing United Insurance Com- pany, 108 NLRB 843, 847. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The decision herein is based on consideration of those facts which are indicia of an independent status and those which suggest an employer-employee relationship; and on a determination of which are "more controlling "'I Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, an Illinois corporation with prin- cipal office in Chicago, Illinois, and branch offices in various States , including the State of Maryland, is engaged in the business of writing and selling insurance; that during a representative 12-month period it received more than $ 1,000,000 from its business operations , of which more than $50,000 in premiums was received at its principal office directly from points outside the State of Illinois; and that it is engaged in commerce within the meaning of the Act. It was admitted and I find that the Union is a labor organization within the meaning of the Act. II. THE ALLEGED VIOLATION OF SECTION 8 (a) (5) AND (1) However much we would avoid statement of the obvious , it must be said that there does not appear to be any decided case in which the facts are identical with those here ; and that the decision whether debit agents are employees or independent contractors depends on the evidence received , pro and con , and the reasonable in- ferences to be drawn therefrom , as to all of which there may be different opinions and conclusions. While the Board remanded the prior case with instructions 8 that the Trial Ex- aminer make findings "without regard to the findings made by the Board" previously, I could not here disregard prior findings were they based on the same evidence as that here adduced. On the other hand, whatever the burden of analyzing the testi- mony here received , it would be far greater were we to attempt a complete (no other would be adequate or fair ) analysis of the evidence in the earlier case and a comparison of the facts in each. Not only are admittedly different facts before us than were presented in the prior case, but counsel for the Company has pointed out as we shall note, infra, that there are differences as between the Franklin Street office and the St. Paul Street office according to the testimony within this proceed- ing. While I recognize the earlier decisions and the facts as therein described and as they then existed,9 I shall here , with full regard for the law as heretofore enunci- ated, attempt to decide on the basis of the facts before us Were comparisons to be made, two pages from the Board 's 1954 decision could readily be followed ; without comparison , we have here covered the items noted there, and more. The findings and decision will be made with full realization that the substantive issue is one which , if involved , is nevertheless of the kind which is usually deter- mined in a representation proceeding I was unable to obtain from counsel agree- ment that the record be submitted to the Board without a Trial Examiner 's Decision, a procedure which would avoid duplication of effort in this type of issue. A lengthy and detailed offer of proof concerning a group of corporations and partnerships referred to as the Garfinkel enterprise was made on behalf of the Company and rejected. While I am in any event constrained to follow the Board's Decisions, rather than different rulings by the various circuit courts of appeals, no more than does the Board do I ignore rulings and reasons declared by the courts. Both sides have properly been concerned with similarities and differences between the facts before us and those in the prior case . The court in the earlier proceeding referred to the offer of proof concerning an enterprise operated by one, Borman. But whatever was pointed out and whatever the analysis or evaluation of the offer in the prior case, if Borman be considered the counterpart of the Garfinkel enter- prise concerning which our offer was made, there is no question but that in the instant case "no one contended," to support a comparison with agents on this basis, that Garfinkel is an employee of United although it was claimed that the enterprise is controlled by United to the same extent as are the debit agents. 7Id at 243 8 132 NLRB 885, 888. ° The respondent there urged limitation to the date of hearing rather than the date of decision 7 months later. 122 NLRB 911, 916. UNITED INSURANCE COMPANY OF AMERICA 41 If the Garfinkel enterprise is to be compared with a debit agent to show that its independence and the fact that it is not an employee are to be applied to debit agents, the attempted comparison is seriously distorted by reference to Garfinkel's staff of agents. It could hardly be claimed and certainly not found that the Garfinkel enter- prise, qua enterprise, would be included in a group of debit agents . Even treated as evidentiary, the testimony offered indicates that the enterprise's salespeople , who hold Maryland licenses to sell for United , are counterparts of or more nearly like United's debit agents than is the enterprise itself although there are some elements of admix- ture, e .g., the fact that some officers and stockholders of the enterprise participate, as do some United agents, in the Company 's group insurance plan. From memorandums included in the offer of proof, none of which is addressed or appears to be for the use of debit agents, the Garfinkel enterprise is an "agency office," "agency," or "general agency." The testimony received properly pertains to the relationship between United and and each of its agents . Each is an employee or an independent contractor. Only after the individual relationship is determined do we consider the propriety of the unit as found; the group is collective . On the other hand , the Garfinkel enterprise in Silver Spring, Maryland, is itself a collective entity. Whatever comparison might be made between Garfinkel's many agents , who are "working for" it, and the debit agents here, the enterprise itself is not a debit agent and its independence would not prove similar status among the agents. Beyond this and differences 10 as they appear in exhibits which were rejected with the offer of proof and need not be cited , differences between the Garfinkel enterprise and United debit agents were noted on the record . While comparisons can be made where the facts are similar, as Respondent's counsel argued , Garfinkel's corporations and partnerships are not a debit agent ; they do not occupy the status of any of the debit agents who testified or whose work was described . There is no contention here that the Garfinkel enterprise is an employee of United : we do not reach, be- cause it is not a similar issue, the relationship between the enterprise and United beyond the apparent fact that it is different from that of the debit agents and United. Even were there valid basis for comparison between the functions of the Garfinkel enterprise and the debit agents here , such comparison would be pointless and un- necessary as noted elsewhere herein in connection with the facts in the prior case and in the Quaker City operation ; it would but serve to swell this case and decision herein to the proportions of a magnum opus. Finally in this limited connection , remem- bering that we are here concerned with debit agents, but out of regard for the vehemence and zeal with which the offer of proof was argued and which reflected the time spent in its preparation, I have done more than merely note that the statu- tory definition of an agent as an individual 11 would further bar the Garfinkel enterprise and make comparison with it as a debit agent quite irrelevant. When it was pointed out at the hearing that the Garfinkel enterprise is not simi- lar to a debit agent, counsel for the Company did not appear to agree that this is a valid distinction 12 But the Company does appear to agree in its brief where the point is made that "an independent general agency files virtually identical reports on forms provided by the Respondent ." On the other hand, the intent may be not to show that the Garfinkel enterprise is in effect another debit agent yet that it func- tions independently; but rather to show that, although independent, it is not but func- tions and is controlled like the debit agents so that the latter, although not general agencies, are independent like a general agency. 10 Such as Garfinkel 's signature as "State Manager," and other letter forms signed by his office employee as "Branch Secretary " Both letterheads carry United 's name but list it at Garfinkel's Silver Spring, Maryland , address. Some of the forms included in the offer of proof, we were told, are not identical but similar to those used by the debit agents before us. u Maryland Insurance Code, 1963 , Section 166 (a). 12 Since the Company's position is that the debit agents are independent contractors, it appeared that in attempting a comparison the Company was declaring that, like the agents, Garfinkel is independent Declaring that his position is "just the opposite ," counsel for the Company argued that Garfinkel is controlled by United but added the important qualification , "to the same extent as the agents." This brings us full circle, No one here has considered a position of complete independence That all of the persons and entities are engaged in the same business and related activities is clear The issue throughout is the extent of control or of independence so that a decision could be made whether the debit agents are in fact independent contractors or employees 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We can overlook the need to show that Garfinkel is itself independent; this could presumably be done (within the limits which we here recognize). But, whatever is or was earlier intended, the filing of certain common reports, which are herein rec- ognized as attributes of the business regardless of relationship, does not overcome the evidence of supervision and control credibly testified to and which we shall see are exercised by the Company over the debit agents, some of which is similar to the dealings between Garfinkel and its employees. That the enterprise and the debit agents here follow some identical procedures may indicate that such procedures are themselves not probative of status, but are con- sonant with either, as we shall further consider. It is rather the differences which indicate their different status. Thus while the enterprise may or may not hold weekly meetings with its own agents, it need not attend such meetings called by United. Nor, to cite some other factors 13 which we shall note, do United assistant managers check, accompany, and advise the Garfinkel enterprise as they do the debit agents 14 with whom we are concerned Again, the debit agents may be better compared with Garfinkel's employees Whatever similarities there may be between the debit agents here and Garfinkel,15 their functions and their status, including the element of control, are so dissimilar as to make comparison irrelevant and, in the Trial Examiner's discretion, unnecessary in the light of the mass of testimony received. Aside from the issue concerning the status of debit agents, there is no question concerning the geographic extent or other allegations that the following unit is an appropriate unit within the meaning of Section 9(b) of the Act; that after a Board- conducted election on August 6, 1964, in Case No 5-RC-4722, the Union on Au- gust 14 was certified by the Board as the representative of the employees in the unit for the purposes of collective bargaining; that on August 20, the Union requested the Company to bargain collectively with it as such representative; and that the Company on September 1 refused so to bargain, maintaining throughout that the debit agents are independent contractors and not employees: All debit agents in Districts in Baltimore City and Anne Arundel County, Mary- land (Districts presently numbered 153, 159, 160, 161, 162, 164, 167, 168, and 174), but excluding all office clerical employees, guards, professional employees, managers, assistant managers, special agents, inspectors and supervisors as de- fined in the Act. A merger of United and Quaker City Life Insurance Company had been effected on March 16, 1964. Of the nine districts embraced in the unit as described, those now numbered 153, 159, 160, and 167 were former Quaker districts; all of these except 159, which is now in Severna Park, are in United's (formerly Quaker City's) Franklin Street office. The five other districts were United districts prior to the merger, and have been and are located at the St. Paul Street office It appears that Quaker City debit agents had been told by Quaker that they would not continue to serve that company. They submitted applications to United and were assigned to their former districts, but with the latter company. (The testimony concerning the transition and continuance or changes is scattered and not very clear. The parties do not appear to be in dispute concerning these historical items, which could better and more clearly have been presented in a brief summary statement.) After the merger, some former Quaker agents had the same manager and assist- ant manager as before, some did not. Scott, who represented the agents favoring the Union and was the General Counsel's principal witness, was given the same debit, only its number being changed. On the other hand, Agent Jenkins, who was the only other witness called by the General Counsel and who had also been em- ployed by Quaker, testified that on a Friday (the day on which he had customarily reported at Quaker) about a week after March 16, most of the district staffs were reshuffled, and he was assigned to a new district at the Franklin Street office under a different manager, and was notified that his reporting day was now Thursday. We have been told that prior to the merger there was a collective-bargaining agree- ment between Quaker City and its debit agents; that the issue was not there raised and no determination made by the Board concerning the agents' status as employees or as independent contractors; and that whether the agreement remained in effect at the merger is now being litigated elsewhere. One could check the similarity or difference as the various items are noted, infra 14 We shall note other communications from higher officials of United to Garfinkel and other agency offices is Although both Garfinkel and its own agents must follow certain regulations, their status is not to he equated. UNITED INSURANCE COMPANY OF AMERICA 43 No more than with the relationship between United and another entity, supra, which is not to be equated with a debit agent, are we here concerned with the status of Quaker City's debit agents vis-a-vis Quaker City. The primigenial relationship may or may not be continued on merger of the companies. To determine (in the absence of an admission against interest) whether it has been continued calls for examination of the later status and its creation; and once that is done, there is neither need nor advantage in considering the earlier. As much may be said with respect to comparison of the facts before me and those in the prior United case. While citing and relying on the facts in the prior case, the Company in its brief notes that some are "non-existent" in the instant case. For the same reason that their facts are quite different, the cases cited by the General Counsel or the Union are no more helpful and certainly not determinative although all have been considered 16 In this connection we must not overlook the Company's testimony and argument that it made changes to meet the earlier findings and that it advertently set about to create or maintain an independent contractor status. Our concern is not whether this could be accomplished within the scope of duties which the debit agents are re- quired to perform, but whether it has in fact been accomplished. The Company's intent and attempts to attain such a relationship are not themselves fell or improper. But whatever significance attaches to evidence of intent, our problem is whether the intent was incarnated and what actual status existed in relation to the refusal to bargain. Thus whatever anyone sought to bring about, we must find what was in fact brought about and what the Company's rights or authority have been over its debit agents. The difference is one between policy declaration and intention on one hand, and actual relationship as established, including the rights of the parties, noted supra. It may even be said that where the right to control is actually shown, a contrary policy or intent is irrelevant. Because policy declarations may be communicated to employees or may explain action taken, I received evidence of such declarations, leaving for later determination whether the policy was effectuated. Thus, for example, the Company's general counsel testified to its legal department's objective in changing the wording of the Company's ratebook so that it would more fully comply with the independent con- tractor theory. But beyond this statement of objective, he was not familiar with the day-to-day operations of these offices and did not know how the Baltimore man- agers carry out the intended policies. Concerning the relationship here existing, we can quickly pass over Scott's testi- mony that he was told that, while his duties would be the same as they had been with United, he was now an independent contractor. Depending on whether emphasis be given to the first part and Scott's statement that supervision thereafter actually increased, or the latter declaration that he was an independent contractor, such testi- mony would support either side in this dispute. Our concern still is with the proof of actual duties and relationship. Scott 17 also testified that he "had no say" in any change of status: he accepted United's terms or he would have had no job. Once again, we do not rely on a declaration of terms by United or, on the other hand, Scott's reason for continuing as a debit agent. These and other nondeterminative aspects of the testimony are mentioned lest it be claimed that they were overlooked. Reliance will be placed on functions and requirements as carried out in actual performance, whatever title was employed at or about the time of the merger. Every item of the evidence and the various implications and nuances have been considered and weighed. It will serve no useful purpose to repeat in detail the various elements cited as they appear in the record. The major ones and those especially relied on by the respective parties will be cited here; the nugatory, al- though heard and considered, need not be mentioned. "The duty to discuss evidence is a matter of degree." 18 To paraphrase Milton, the law delights not to make a 1e We are thus rejecting comparison, which one side urges, with the Garfinkel enter- prise with Quaker City, urged by the other side; and with the prior proceeding, the parties arguing for and against comparison, depending on whether it be with the Board's or the court's decisions. 171 have not overlooked Scott's evident partisanship and his attempts to "strengthen" the General Counsel's case, as when he testified that the Company "requires" another trip to the office to pick up a new policy. It developed that this is only a suggestion although "the right way to do it " He was a reliable witness, however, and I credit his testimony generally. He did not evidence the patently unreliable aspects which some of the other witnesses displayed ii N L R B. v. Cook h Jones, Inc, 339 F. 2d 580 "It is not meet that every nice offense should bear his comment." Julius Caesar, act IV, scene 3, line 7. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drudge of virtue. The nature of the issue and of the proof offered calls for a process of balancing by comparison , however, and warrants the detailed consideration herein to explain the comprehensive view taken and the findings made Whatever is omitted we shall herein consider , trusting that none are overlooked , at least all of the items mentioned by the circuit court in its 1962 opinion and all considered by the Board in an early representation proceeding involving this company in 1954,19 as well as those items urged by the parties in their briefs, except perhaps where the analysis and ruling at the hearing and in the record appear to be adequate. Use of the term "debit" offers a prime example of metonymy as it is used variously to refer to the holders collectively of insurance from whom the agent collects and whom he serves, the main or concentrated area which he serves , and the book of policyholders which the Company turns over to him and which he maintains for collection and general servicing. The book is also referred to as the debit book. The agent may commonly be said to service the policyholders on his debit or area assigned to him. On such contacts he collects premiums and tries to write new policies, as he does by interviewing prospects generally on referrals or even by door- to-door canvassing . He submits to the Company notices of lapsed policies and regular reports on company forms, attends meetings , and turns in his collections less earnings which he may withhold according to contract Each agent is licensed 20 by the State to sell for United , and may be similarly licensed for other insurance companies . While they have made sales of policies issued by other companies,21 it does not appear that any agent does or could simultaneously work another debit. Of the two agents called by the General Counsel, one testified that he did not pay the license fee. Of the four called by the Company ,22 two testified that they paid their own license fees and were not reimbursed by the Company . But one of these latter two thereafter told us that he paid only for his examination and original license ; the Company has since paid for and renewed his license each year Unless I have overlooked it in the transcript, the other three agent witnesses were not asked about this. Company control might be indicated by its payment of agents' license fees ; independent status by agents' payment of their own fees. We need not speculate whether it is more likely that agents might make voluntary payments (were they urged or compelled to pay, this might suggest company control) than that the Company did as an accommodation (considering accounting requirements and the necessity to explain ). If of all of the agents who testified , one paid for his first license only and one other likewise paid for his examination and first license (he was not asked about renewal licenses ), we can make the understatement that the record does not show that debit agents are required to or do in fact pay for their licenses as company agents. Von Saleski, a debit agent called by the Company, testified that while he was employed elsewhere he learned that a United debit agent was earning considerably more, and decided that it "wouldn 't hurt" to inquire about a debit at United. On inquiry, he was told by a manager that several debits would be "open." Asked whether he was hired the first time he spoke with the manager , Von Saleski testi- fied that he "filled out an application" at that time , and was told that the Company had "other applicants ." This is the terminology of employment , not of independent contracting, and at least indicates the witness ' impression of his status 23 As he detailed it, he changed from one employment to a better one. Von Saleski , who was one of the two agents who testified that they paid their own license fee, further testified that 2 or 3 weeks after he was "hired ," it was indicated on the abstract of his weekly report that the Company had "taken out for the license" the fee which he thus testified he paid. Although he paid for the license after he was hired, the matter was handled by the Company without evidence that he had been consulted; he was now charged with the expense. There are individual variations among the debit agents with respect to practice, which are reflected in their relations with the Company . Thus for example, one agent purchases gifts for his policyholders or some of them, while another does not; of those who do, some purchase items which the Company makes available while others purchase elsewhere. Here again is an equivocal factor. An agent's inde- 10 United Insurance Company, 108 NLRB 843 , 844-846 20 Although the agent is thus licensed and presumptively qualified, the Company further controls his activities by requiring that during his first year his manager or assistant manager must recommend an applicant for insurance and countersign the application. 21 The Company does not and perhaps could not legally prevent this 22 The testimony of these four was by stipulation endorsed by six other debit agents 23 While this occurred 6 years ago, Von Saleski did not indicate that there had been any change in status or in his recognition of it. UNITED INSURANCE COMPANY OF AMERICA 45 pendent right to decide whether and where to purchase gifts is quite consonant with employee status; if such status otherwise appear, it would not be contradicted or diminished by this item. Similarly, Agent Rock testified that at each of three locations he has a number of policyholders whose employer's office girl maintains a "payroll deduction plan" whereby she withholds from the policyholders' pay the premiums due on those policies, and turns the amounts over to Rock For this he compensates her by gifts. Rock in advance leaves the receipts with the girl, who places them in the employees' pay envelopes. These arrangements are apparently not common, and Rock did not know whether United had knowledge of them. (Von Saleski offered similar testimony. These instances are in marked contrast to agents working for Garfinkel.) Whatever Rock's opinion, I find no support here for the claim of in- dependent status. Scott testified without contradiction that, while company rules permit agents to make calls and collections for one another, Vice President Rose had said that it was against the rules for an agent to hire an unlicensed person to make collections for him. Scott's testimony in this connection is quite definite even if he was later asked whether he had "concluded" and was so "led . .. to believe" by a statement which Rose had made and "despite" Rose's statement. Other atypical practices or variations in the agents' procedures will be noted infra. On the other hand, various procedures are, with understandable exceptions, typical of the agents' practice and indicative of their relationship with the Company. While an agent's work on collections and servicing his debit provides contacts and opportunities to sell additional policies, his debit service work is quite different from that as salesman.24 Whatever their relationship, the Company benefits by and has an understandable interest in successful efforts by its debit agents in addition to its indicated control over their procedures. But it cannot, beyond advice and limited assistance and supervision, inject itself into the agents' efforts to obtain new business. Provided that he satisfies the Company with the amount of new business which he obtains, an agent is truly on his own with respect to the amount of time which he devotes to seeking new business, any connections which he seeks to develop, and the technique which be employs. In this phase of his work, his duties and perform- ance and the measure of company control come closer than in debit work to reflect- ing independent contractor status. Yet even here exists a considerable degree of company control, as he can be called in for group and individual meetings, and he can be discharged should his business be insufficient or his efforts otherwise displease. Different factors in other situations might be totalled for a different result. Although Rose testified that to his knowledge no agents were "encouraged to leave" by managers or assistant managers, and that he did not think that any man had been asked to leave unless there had been something akin to a violation of law (he testified that he would be informed only where there had been an actual termina- tion), two debit agents were in fact asked by their district manager, Kropf, to resign because of poor work and the poor condition of their accounts. Kropf had dis- cussed these cases with Foimwalt, the division manager. Thereafter he told Form- wall that the other agents would refuse to settle their accounts if one of these two were terminated. The two men's books were later checked and in the case of one, at least, his account was found to be as nearly correct "as could be possible." Both men have remained with the Company. Formwalt mentioned two other agents whose termination because of poor work he had discussed with their managers These two have resigned. The status of debit agents and Von Saleski's impression thereof are indicated by his testimony that poor producers have "of course" been cautioned, in the first place by the assistant manager. Whether the terminology be of discharge, encouragement to leave, or resignation, control and employees status are clear: the agent is effectively "dead" in any event. As company counsel recognizes, a request to resign "normally is the same as a dismissal." The authority and control are no less such because the Company, after further check and discussion in some instances, did not insist on the resignations. We must bear in mind that the issue here is whether the Company's rights are those of an employer or of a nonemploying contracting party. To deny its power to terminate the relationship is ludicrous and certainly more than the Company intends. 24 It is unnecessary to go beyond the facts in this case and to rely on the broader rulings concerning insurance agents who have no debits While the a fortiori argument might be used because of the additional elements of control in the case of debit agents , we would again face the problem of comparison and differentiation of facts , noted supra, in con- nection with the Quaker City situation and in connection with an offer of proof by the Company. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Returning to the item of time spent by the agents at work, the fact that they are to an extent free to make their own time arrangements except for the requirement that they appear at the district office reflects not independence but the further fact that theirs is potentially a day-and-night job, especially for the ambitious man. Independence is quite limited as they are required to cover their debits or area of accounts. While the Company does not fix an agent's hours for debit collections and other services on his debit, this work must generally be fully attended to each week; the agent must periodically reach his policyholders (some pay their premiums in ad- vance for longer periods than 1 week, some mail premiums to the company office), see that the payments which they owe to the Company are maintained, and turn in to the Company each week the money which he has thus collected or otherwise received, less any sums due him by the Company or to be credited to him. Clearly by agreement and practice he is a collection agent to receive and transmit to the Company the sums thus collected, these being "trust funds" as the rate book declares. While the agent is permitted to retain his share of such moneys according to the Agent's Commission Plan, the contract between himself and the Company, the money collected, from the moment he receives it, belongs to the Company, and he is required to turn it in at times fixed by the Company. In fact, when some agents absented themselves to attend a meeting of their own at the time which the Company had fixed for them to turn in their money, a com- pany representative threatened to charge them with embezzlement if they did not turn their money in that very day and within a few hours In connection with premiums thus collected by the agents, employee status is further suggested by the tact that the premium receipt books are issued by the Company and the agents or the assistant managers who relieve them sign for payments not on their own behalf but on the Company's. The point is not merely that the money belongs to the Company, but that the debit agent is functioning as its direct and immediate agent and on its behalf rather than on his own. The Company is not itself obtaining these moneys by supervisors or any who it admits are employees, but is utilizing, as completely as it could any employees, the services of its debit agents. Much time was spent at the hearing on the question whether agents are required to report to the office weekly, at which time they meet with company supervisors. In connection with other items, we have noted and shall note several incidental references to such meetings and to turning in collections at that time. Repeated attempts which elicited unreliable and, as indicated, contradictory testimony pro- longed attention to this question. Having considered the various denials, explana- tions, and contradictions, I find that the debit agents are required to appear at their district office one morning each week; that there are usually sales meetings with the manager and then the assistant manager (sometimes also with higher company officials), followed by individual meetings and discussions between the agents in turn and their assistant manager; and that the agents on that morning turn in their weekly reports and collections. Formwalt testified that it is his "policy" that the men report by Thursday or Friday, and he explained further that in two of three districts referred to the men have been settling on Thursday, and in the other on Friday. The portions of the record cited in the Company's brief do not support the argument therein made that "the agents are requested to submit their weekly re- ports by Thursday morning," instead of on Thursday morning. Nor do I credit Von Saleski's explanation that he attends because the meetings are "for [his] own benefit." The regularity of the exhortation and advice at meetings and as directed in com- pany memorandums, and the frequency of special contests and awards belie what- ever minimum of independence and arm's length dealing might be deemed necessary to characterize independent contractor status; although I would regard occasional prizes alone as consonant with either employee or independent contractor status. Significance can be found in Formwalt's testimony, as he referred to agents, assistant managers, and himself as district manager at the time, that "all of us working to- gether were responsible for" the greatest increase during a certain 1-week contest. It should be noted that, testifying concerning new business contests conducted by the Company to stimulate sales by the agents, Formwalt declared that the Company "would assume" that all agents would be present at the sales meeting. This pro- cedure of regular weekly meetings is observed although agents sometimes ask to be excused from reporting. There is also testimony that agents are sometimes absent without being first ex- cused, and that part of the week's collections is sometimes turned in earlier. Agent Spalding told us that he misses some meetings for personal or business reasons; that UNITED INSURANCE COMPANY OF AMERICA 47 he usually turns in an account before the meeting if he has one to be turned in, tells his assistant manager he is leaving, and asks if the assistant has anything for him. Von Saleski similarly testified that during the past year he had gone in four or five times on Wednesday or Friday when he did not go in on Thursday. One occasion was Thanksgiving Day. Once he had a prospect lined up and asked the office whether it would be all right to come in on Wednesday or whether to wait until Friday; yet he was never told that he must attend the meetings on Thursday That Von Saleski and the other agents in his district report on Thursday is hardly co- incidence. It is understandable as a company requirement; otherwise it stands un- explained in the record. Even Rock, who testified that he decides whether or not to stay for sales meetings, depending on whether he has time, had not missed any meetings during the 3 months preceding the hearing; the meetings are usually held on Thursday (he settled his account on another day during Thanksgiving week), and he missed "maybe two or three or more" during the past year. He attends; more reliable testimony indicates that attendance is required. (The agent decides whether to come in at any other time, in addition to Thursday morning, to turn something in, pick up a policy, etc.) The requirement to report and to attend weekly meetings is recognized even if it can be stretched or waived. While Formwalt denied that he told Scott that the reporting day is Thursday, it stands uncontradicted that the latter as spokesman asked about the possibility of reporting on other days. Formwalt's reply was that as far as he knew they had to report only on Thursday morning. Recognizing the confusion which he admitted, I do not credit Formwalt's denial, and it is clear from the other testimony that the men were required to and did report on Thursday morn- ing, as we have seen. In fact although counsel repeatedly asked about a require- ment that the men report by Thursday or Friday, Formwalt himself thereafter testified that two of the three districts settle on Thursday, and the third on Friday. In addition, in special situations and further bearing on the larger issue of company control, Formwalt "let the man settle" a day earlier. Whatever Formwalt's knowl- edge concerning the number of times agents are required to report each week, his instruction, the requirement, and the Company's control are evident. It is to be noted that the Company did not call managers or assistant managers who, agents testified, conduct the weekly meetings. The occasional and excused absences re- ferred to can explain Rose's testimony that there are regular meetings on Thursday morning but that the agents do not have to attend. Going beyond his testimony that he was told by Formwalt that Thursday is the reporting day, Jenkins testified that his manager called him at home about 2 weeks before the hearing, said that they needed more business that week, and arranged to and did meet him on his debit the following day, when Jenkins turned over the new applications which he had. Finally, while I do not overlook the possibility of self-serving action taken with an eye to this proceeding, Scott explained that he was late at the hearing on Thursday, December 17, because he had to turn in his collections. No one on behalf of the Company contradicted him or otherwise testified that his presence at the office was not required that morning. It is of course necessary that the agents turn in their collections. But the Company fixes the period at 1 week and requires the agents to report on Thursday morning (or on Friday in one district as noted). Bearing on the agents' weekly attendance and use of company forms, which we shall further consider, it can reasonably be assumed that the cashier or company clerks check the agents' arithmetic on their collection and other reports. I do not believe that, when the assistant manager and the manager successively review the report forms, admittedly required weekly, "the main purpose is to check the figures." Such review ties in closely and naturally with the encouragement and assistance lent to the agents by the supervisors. Aside from the required use of company forms by agents in submitting information, the Company's right to check each policyholder's account and the breakdown as well as the sum total of the agent's collections, together with the detailed oversight by the assistant manager, reflects a degree of supervision which negates independent contractor status. On the other hand, the Company's right to reject risks or to call for medical exami- nations is a necessary attribute of the business and does not indicate an employer- employee relationship. Neither would a rule (concerning which there was conflicting testimony) not to accept agents' personal checks without the manager's permission, or statutory requirements as with respect to rates and lapses. The Company prepares and provides a variety of forms (some have been noted supra) for use by its debit agents Some of the forms, like some of the other evi- dence received, are to an extent consonant with either status claimed and to such 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extent are therefore not themselves determinative . These no more need to be de- tailed here than they are in the parties' briefs . But to the extent that the Company requires their use, as it does, it exercises control and limits the independence of its agents. Granted the Company's right to check all collections made against the money turned in, the use of certain collection forms as tools for bookkeeping pur- poses is understandable regardless of the relationship . Yet even here the require- ment that its forms be used rather than possibly less efficient compilations which individual agents might submit indicates an element of company control. In the same category might be placed a letter from the chairman of the Company's board of directors to various company officials on September 16, 1964 This was intended to be and was read to the debit agents . To the extent that the letter main- tains the validity and need to follow the Company's system of handling accounts and records and to meet insurance department requirements , it may be regarded as referring to procedures which would be followed regardless of the relationship between Company and agents . But the writer of the letter, suspecting Scott as "the ringleader," suggests that Scott "turn in his resignation ." (Elsewhere , Scott is referred to as an "outsider ") If procedures must be followed regardless of the relationship, the tone of the letter and the term "resignation" applied again and suggested for agents who might seek to "make their own rules" suggest employee rather than independent contractor status . (I have not overlooked the closing refer- ence to "United Independent , Successful Salesmen.") One form, the collection route schedule, is provided solely for the convenience of the agents and is not usually used . Some forms or brochures illustrating types of company policies and other possible aids in selling and maintaining policies may or may not be used, as the agent chooses. Others must be used . On the issue whether the Company requires use of some of its forms , even agent Kirson, who testified that he was never told that he was required to use the agent's weekly account form to settle his account, told us that he does use the form once a week and only once a week although he turns money in several times a week I credit the testimony that the Company requires weekly use of the form . The requirement explains Kirson's otherwise unexplained practice. Of the forms received and not noted specifically or referred to generally else- where herein , some refer to United Fire Insurance Company. The limited refer- ences to this company do not go beyond or illuminate the proof received concern- ing the Respondent Supervisors function with respect to the work done by the agents for either company. There is no demarcation between the functions of agents and supervisors with respect to policies of the Respondent Company and policies of the related United Fire Insurance Company. Testimony with respect to the latter is relevant to the extent that it bears on such functions and the relationship in issue; but it is slight and quite unnecessary for any decision herein. There is no issue here and no findings need be made concerning integration of operations of these com- panies or their relationship. We have noted the Company 's right to all premiums collected, the agents' function in this connection being routine and clerical . Further, the premium receipt book gives notice to policyholders that the agent's failure to collect does not lessen their obligation to make payment to a company branch office or the home office. Leav- ing room for different emphasis although I regard it as significant, I merely mention that the arrears notice sent to policyholders is sent not by the agent but by the Company and is signed by the assistant manager. Among other exhibits received , of the weekly reports 25 filed by the eight district managers for the week of November 30, 1964, the following extracts bear on the issue here : In one the manager reports that he has talked to two agents concerning their letdown and that they "promise to try and do better ..."; and that a third agent was "talked to" by the manager and assistant manager. In the second, the manager declares, "We are all emphasizing the absolute necessity" to increase busi- ness. By itself, this latter statement is not inconsistent with status as independent contractor. But the first of these particularly voices an employer-employee relation- ship. The tone is in harmony with the demeanor of the parties ' representatives and their witnesses , which I observed during the 8 days of hearing and which I cite in addition to the other and themselves sufficient bases for my findings. The printed headings , which include "Assignment This Week," with the subhead "Agent's Name," and "Assignment Next Week," indicate that close supervision is exercised and expected. UNITED INSURANCE COMPANY OF AMERICA 49 To the extent if any that I may rely on demeanor 26 in the hearing room, I would now report that without exception the agents did not display or appear to have attributes of independence (not even when the "ringleader" appeared to assert him- self as he testified), but acted and appeared to be regarded as rank-and-file em- ployees, not of high rank either in fact or in regard. The existing relationship was pictured by Jenkins' testimony on cross-examination that he keeps lapsed policy pages in his book although he has no reason to keep them but only because the Company has told him to do that. He did not ask why: "It was not [his] business to ask." The control if Jenkins was so told is not contradicted by Rose's testimony that the Company has no such policy. Further on the exhibits received in evidence, a series of memorandums and in- structions from the Company to its district managers, emphasizes the close super- vision over agents and the direct relations with policyholders which are maintained by company supervisors. As we shall see, infra, supervisors are required to call on policyholders in connection with lapsed policies, with the stated objects of conserving business and directly obtaining new business. This supports the General Counsel's proof of supervisors' efforts on behalf of agents, and contradicts the Company's testimony that such assistance is available to the agent "at his request " (Rose was here stressing that the agents are "in business for themselves," and meant that the assistance is available only on request by the agent.) Indeed we here note that the relationship is such that supervisors are urged to supplement the agents' efforts and to some extent even to supersede the agents The Company's control and direction of procedure with respect to work on the debits indicates that in this connection at least the agents are employees of the Company, not independent contractors. This is reflected in the status of assistant ianagers as representatives of the Company rather than as independent contractors as they relieve agents on the debits. (We are here considering the element of com- pany control over the managers, who are admittedly company supervisors.) Com- mission on new business which the 'assistant managers sometimes write for the agents is credited to the latter, the Company thus allowing and making payment to the agents for the time and efforts expended and the results achieved by its supervisors. Although Formwalt testified to an impression or general recollection that while he was district manager he wrote new business for agents when they were away in an amount roughly within the range of that which agents themselves write, I find that testimony (which, in the absence of indication that more dependable in this respect would be available, I myself drew from the witness) less reliable than other testimony received on this point. In fact it appears from witnesses on both sides that assistant managers, not managers, generally substitute for absent agents. Von Saleski testified without any suggestion that this was not typical, that the amount of new business which is written for him in his absence is one-third that which he averages. - See Wigmore, Evidence, § 946 (3 ed ), which, after ambiguously declaring the admis- sibility of the witness' demeanor "when exhibited in the courtroom and on the stand," emphasizes the "demeanor of the witness on the stand " Were presence on the stand a sine qua non rather than one of two alternatives, the phrase "in the courtroom" would be tautological It could be urged conversely that reliance on the broader first phrase would make the second unnecessary, but In such a case the latter might be deemed descriptive of the more common situation. In section 1395, reference is made to the "elusive and incommunicable evidence of a witness' deportment while testifying . . . While this reference in the Instant case can but support the findings made on the basis of the testimony received, there appears to be no good reason for excluding demeanor in the courtroom when the witness is not on the stand and where it is clearly observable as in this case ; and aside from any attempt to probe "the subjective moral effect" upon the witness. There is no greater danger that the Trial Examiner will be misled by play-acting in the courtroom than if it be indulged in on the stand To the extent that circumstances maize possible and warrant demeanor findings in the latter situation, they may warrant such findings on the basis of courtroom demeanor which can be cited Without attempting to detail the basis for this necessarily subjective finding, and allowing for an independent contractor's possible concern over renewal or termination of his contract, I can here declare that I observed a uniform and marked deference by agents toward supervisors and company officials which, without obsequiousness but beyond the sometimes elusive requirements of courtesy, Is decently characteristic of common attitudes between em- ployees and supervisors ; and which in such uniformity differs from the normally observable attitudes between independent contracting parties 206-446-66-vol 1545 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It further appears that the employer-employee relationship which exists in debit work pervades more than one-half 27 of the normal workweek , the agents being free to devote a smaller if substantial portion of time to the more independent aspect of their work (if not independent, more so than are their duties with respect to the debit ) of soliciting new business . The importance to the Company of regular receipt of premiums and of current records concerning the status of each policy determines the extent of its control over these functions and the agents ' status as employees. This element of control over the agents ' debits and the Company's discretion with respect to assignment of debits explains the 1 percent allowance of total collections which the Company grants as travel expenses to an agent whose debit is in an out- lying area and a greater distance than most from the office. Whatever the element of control were these agents engaged in selling ordinary insurance , the debit collection and servicing requirements and the limitations im- posed pro tanto on debit agents more clearly point to employee status . That the agent is dealing with company property is indicated not only by his handling of collections, but by the fact that when his relationship with the Company is terminated, he is required to turn in his debit book. This is quite different from making the book available for checking purposes ; it does not belong to him , but must "be re- turned promptly to the Company upon termination of service" even if, as an im- portant tool 28 provided by the Company , its details could be valuable to the agent if be undertook to sell for another company. Further, the business done by the agents belongs to the Company . Although the debit agent is charged with lapses , managers are instructed 29 that they or assistant managers are "to help the agent in the conservation of business ." If it still be main- tained that the business being conserved belongs to the agent , such close supervision and assistance are attributes of an employer-employee relationship . With respect to policyholders (most fall within this description ) who are included by the Company in the debit assigned to an agent , the latter's activity is not only supervised but it stems from the Company's assignment , which thus largely determines the major por- tion of the agent's activity. Thus the activity originates with and continues to be controlled by the Company. If control is, or from the nature of the work must be, less extensive with respect to selling methods and opportunities ; if, without minimizing collection skills, greater virtuosity can be exerted in sales work, the element of company control nevertheless exists and is expressed in various ways and in different degrees. Nor, since the proof of the pudding is in the eating and "all [the Company is] interested in is re- sults," is it surprising that agents are permitted latitude in their methods . We have noted that the Company does take steps to improve the agents ' work or to remove them where it is dissatisfied with their results. Rose testified that agents may take holiday vacations without notice to the Com- pany but that, if an agent is absent for a period of time and notifies the Company, an assistant manager if one is available will take over for him . How long an agent may thus be absent and the question of availability of an assistant manager were not explored fully. As for the condition that the agent let the Company know, Rose could say only that he knew of no instances where a debit was not serviced when the agent was away for a week or more . But significant is the statement by this com- n Von Saleski testified that on the average he spends twice as much time collecting his debit as he does soliciting and selling new business We recognize , of course, an ele- ment of solicitation and possible sale when collections are made or other srevices rendered The relative importance of the debit is further indicated in Von Saleski 's testimony that his earnings on industrial insurance exclusive of fire insurance are approximately four times his earnings on ordinary life insurance , and that his new business draw on indus- trial is two and a half times that on ordinary . Also in this connection , Von Saleski earns more from his debit collections than from commissions on new industrial insurance. How- ever these amounts and proportions be analyzed , it is clear from the testimony of several witnesses that work on the debit consumes a major portion of the debit agents ' workweek. 28 With respect to "tools," personal qualities are little more determinative of the present issue than they are in the case of admitted employees whose value and services depend on such qualities . Unless it be assumed that insurance agents cannot be employees or that they cannot be independent contractors , it must be recognized that in either clas- sification personal qualities are important tools Whatever the extent of such qualities, the issue here is to what extent the Company can control agents ' activities 29 While it was pointed out that this instruction was issued in January 1964 and Form- wait "would say that is not being done at the Franklin Street office ," it does not appear that concepts concerning the business have changed UNITED INSURANCE COMPANY OF AMERICA 51 pany official that an assistant manager would thus act "for the conservation of com- pany business." Clearly, the business is the Company 's directly; it does not belong to the debit agent The agent is not an independent contractor handling a debit over which he has sole control and from which he can exclude close supervision; he is an employee of the Company. Rose, who several times reversed himself, indicated a limitation on the Com- pany's control as he testified that, while the Company initially assigns an agent to a particular manager and assistant manager, it may not transfer him to another assist- ant manager without the agent's consent ; it transfers at the agent's request and if an opening is available . But he later "qualified" this by stating the contrary; i.e , that the Company has initiated transfer of agents to other supervisors . Thereafter he also told us that the Company had merged one district into the other four dis- tricts at the St. Paul's Street office in 1964, and had assigned some agents to new assistant managers . ( Rose made other categorical assertions which he later qualified as hearsay, and he injected repeated reminders that "it is up to the individual agent," "they are in business for themselves," and the Company is "interested in the results of these men, not in how they accomplish them " These are no more impressive than Scott's efforts "beyond the call of duty." We look to the witnesses , not for conclusions, but for the facts concerning the agents' authority and the Company's control.) We have an interesting dichotomy as the General Counsel emphasized conditions in the Franklin Street office while the Company called St. Paul Street agents. But company supervisors and officials testified to conditions and relationship without any claim of existing difference in status at one office or the other. The Company argues that there has been a distinction between the two offices with respect to the status of agents . But a finding of company control is not affected by any temporary delay as the Company found it difficult through a transitional period, which lasted approximately through the month of March , to effectuate its intent at the Franklin Street office among the agents newly acquired from Quaker City. Whatever differences are claimed with respect to procedures at the two offices at one time, there is no claim that the respective rights, duties and relationship were in August different as between the two. The relationship between the Company and its debit agents was by that time established and apparently the same for both offices. Company supervisors testified to relationship , company authority, and agents' status without distinction among various offices. There was no suggestion in any of the testimony that the unit should be split because of alleged differences, nor evidence to support such a suggestion . The problem here has been to determine what that relationship is and was at the time of the election and certification. Were there credible indication of exercise of greater independence in one office than in the other, we would perforce rely on the latter conditions since, as we have seen, the test is the right to control ; and when that right is shown, the failure to exercise it with respect to some agents or in some places is not determinative. Even if, as St. Paul Street agents called by the Company testified , a lesser amount of control is exercised over them ,30 this does not indicate that control or right to exercise it is lacking. Since control is exercised over the agents at the Franklin Street office, the right to control has been proved , and generally so in the absence as noted of any claim that, whatever the status of agents vis-a-vis the Company, the relationship and the respective rights differ between the two offices. Even during the brief transitional period, any difference lay in the establishment and recognition of routines, not in the Company's right to control . If that right were exercised to a lesser degree at St. Paul Street (we recall that the Company merged districts and changed assignments there ), this might be an incident of the personalities involved or the requirements of the various debit areas , or both. But whatever the reason for difference in practice, the authority remains, and beyond a doubt to the extent that it is exercised . Kirson in particular went beyond the Company 's position as he attempted to create an impression of greater independence among the St. Paul Street agents. He testified that his practice of making settlement weekly was quite vol- untary; while he normally settled on Thursday, he has without reprimand come in on Friday instead when he had personal business to take care of (he sometimes turns his collections in twice or three times a week ); also, that he would not say that he has a manager although there is a manager in the district. With respect to transfer of policies and policyholders from one agent to another (the occasion most frequently arises when a policyholder moves ), while an agent may and does service policyholders outside of his debit or "concentrated " area, it is "We were told that assistant managers there do not initiate joint activity with respect to accounts , and that one or two agents spend relatively little time on the job. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD generally more convenient to transfer the account to the agent who serves the loca- tion. It does not appear that the Company initiates such transfers. But were the agents independent, such transfers could be arranged by the transferring and receiving agents alone. (In those cases where the identity of the receiving agent is not known to the transferror, the Company could provide the information.) Even if instances can be cited of transfer of a policyholder from one agent to another without approval by the company supervisor (particular reference was made to business written for Scott by other union members, infra), many approvals and some disapprovals, in other instances indicate the Company's right to exercise authority. Despite the efforts to show independence in connection with transfers, the Company's control and the agents' lack of authority are clear: Company ap- proval must be obtained, and the transfer forms so indicate. Rose offiered a contrary conclusion without referring to or explaining the procedure followed. Von Saleski testified that before a transfer the transferring agent speaks to the receiving agent when that is possible, but does not at that time effect the transfer: "The managers will on one day a week sit together and exchange the transfers and the transfers will then be given out at a later date to the receiving agent " In fact, agents can and are permitted to sell policies and to serve policyholders outside their debit area; and of course they are able to serve those in their area. There is neither evidentiary nor argumentative explanation, beyond the control which the Company maintains, for approval when an agent seeks to transfer an account to another agent and particularly to one who serves the area involved. Nor does ready approval by the Company overcome the evidence that approval is necessary. I do not credit Formwalt's explanation that the supervisor's approval is merely a notation for the Company's home office to the effect that the transfer has been accepted by the receiving agent. The plain language and concept of approval stated on the form support the testimony that this was no mere transmittal procedure. With respect to instances of disapprovals of transfers, which we shall next consider, Formwalt could only say that each of these was "definitely a mistake of judgment" on the part of both the manager and the assistant manager; the alleged company policy, contrary to appearance and the form used, had not been communicated to company supervisors, much less to the agents, who recognized and submitted, as we shall see, to the Company's control. I do not credit Formwalt's testimony, "That the agent has free control to transfer in and out of his debit as long as the receiv- ing agent is willing to accept." Reference was made to two instances in which the agents involved had agreed to a transfer (in one the assistant manager had approved) but the receiving assistant manager disapproved and the transfers were not made. Jenkins testified that he had agreed with another agent to receive from the latter a transfer of a group of policies paid by a policyholder, but that the transfer was made to still another agent Jenkins was uncertain in his recollection of the transferring agent although he recalled the name of the agent who did receive the transfer, and he was definite about his pro- test, which he repeated on cross-examination and which was not denied, made to the manager when the policies were later transferred to the other agent; the man- ager's reply being that he had given it to the other agent because the latter had a smaller debit and the manager was trying to build it up If the Company generally approves transfers proposed, this indicates its opinion that the transfers should be made; it does not weaken the proof of the Company's authority and control. While the Company thus insists on its right to control, Scott testified that "union procedure" is different from the Company's rule that the receiving agent must accept a transfer if it is otherwise approved: the Union's position is that there be no transfer if the receiving agent refuses to accept it.31 Scott testified that he has no right to decide whether to accept or reject a trans- fer from another agent. Because of the receiving agent's liability should a trans- ferred policy lapse, this company-imposed requirement of transfers is a significant element of control. Von Saleski testified that the receiving agent is asked whether he will accept a transfer, and Scott testified that he had very recently been told by other agents, not by the Company, that in the future there would be no transfer of policies on which less than 13 weeks' premium had been paid. 31 The testimony covers several attempts by the Union to control procedures, including letters written by it to the Company. These are not admissions of the Union's or the agents' authority but positions taken on behalf of the agents as employees. As such they are but declarations, which no more establish employee status than does the Company's rejection establish either independent contractor status or recognition of the agents as employees UNITED INSURANCE COMPANY OF AMERICA 53 It further appears that agents in four of the districts who are union members have agreed among themselves that the transferring agent, rather than the receiving agent, is responsible for lapses within certain periods. This agreement entered into by some of the agents calls but for mutual indemnification under the liability imposed by the Company. It does not negate their liability or employee status. Although counsel for the Company has claimed that the arrangement is very imporant on the issues before us, the Company's control has been shown even if the agents agree to share burdens. It does not appear that the liability of an agent who is charged by the Company with a lapsed policy is modified under company procedures whether or not he is indemnified by another agent. The Company's discretion and authority with respect to each transfer are underscored by the absence of a rule which, al- though an agent is assigned to his debit area, enables and compels him to handle all policies in that area. Except for such transfers, the agent remains with his debit and policyholders once these have been assigned to him. Even when, in appreciation for his organizational efforts, various agents wrote new business for Scott's account, such business was credited to him ab initio and in that manner approved by the Company. This special arrangement was quite different from the transfers otherwise described; there was no suggestion of transfer of these policies in the usual sense by the agents themselves after they were credited to another agent. As counsel for the Company expressed it, "the writing agent was one person," while another, Scott, received credit. Nor is the Company's control of the agent's operations otherwise remote. Each assistant manager checks the weekly account sheets and other forms required of his debit agents by the Company, offers advice, periodically offers assistance in mak- ing calls, actually does assist the five agents under him, and prepares a weekly re- port with the agents' assistance. We have seen that the assistant manager is required by the Company to assist the agent even to the extent of making calls on policy- holders. This, I find, is not dependent on the agent's request. In fact this became an issue between the Company and Scott as union representative, the latter advising the Company that he would permit an assistant manager who had not been with Quaker to go out with an agent if the agent permitted it. This is an example of a union's attempt to negotiate an employer's control over its employees after the union had earlier objected to such assignments of assistance by the company. It does not appear that the assistant manager busies himself with matters other than those which relate to his agents. He announces at weekly meetings which agent he will accompany the following week, and he covers the agents' debits when they are on vacation, the agent receiving his regular commission on the premiums collected and new business written by the assistant manager. With the assistant thus relieving his agents, it is understandable that they choose their vacation periods seriatim. But the employee status is further suggested as they make their selections according to seniority after the assistant manager has made his choice. The assistant manager also services the debit during the week or two when an agent is receiving a service award bonus.32 Through all of this the assistant manager who replaces the agent remains an employee of the Company; he is not an independent contractor. While fully paid vacations, holidays, sick leave, etc., are subject to agreement and attributes of an employment relationship, their absence would be an equivocal factor since it might indicate no more than failure to obtain concessions or a strict reliance on an employee commission plan. That assistant managers asssist and have under review only five agents indicates the closeness, immediacy, and personal nature of such review, and close review itself suggests and indeed would be meaningless without supervision and control since it does not appear that the Company engages in such close and continuous review merely out of curiosity. In the checking of records of the few agents under him, the assistant manager is joined by the manager. Such supervision and assistance indicates employee rather than independent contractor status.33 Of further signifi- 32 According to Formwalt, assistant managers are not under instructions to collect for an agent who is sick or is taking his service bonus awaid• "it is more or less taken for granted " The agent does not receive collection commissions for the period of a service award bonus, unlike vacation periods. It would appear that, in the latter connection, agents do receive full vacation benefits 33 The Company's brief erroneously computes "the assistant managers' help" It applies Formwalt's approximation of 155 man-weeks spent by assistant managers for 67 agents to the total of 160 agents in the region The brief further overlooks its own recognition that the figures were limited to premium collections and did not include the day-to-day supervision 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cance is the fact that, when new business is written by an agent in the company of an assistant manager, the former signs as writing agent and the latter as having assisted, this we recall whether or not the agent requested the manager's company or assistance. In fact the assistant manager is an important part of the assistance which Von Saleski testified he was promised when he was "hired." The furnishing of tools, such as the debit book and forms, office space for periodic meetings and services, an instructor while the agent is acquainting himself with the area, accounts, and work, with full earnings accruing to the agent since the assistant manager who in- structs is otherwise compensated, is an element of employer-employee relationship. The agent, typically an employee, at his point invests only his time. The Company alone makes the investment in office space, materials, and instruction facilities as it trains him and supervises his work. In connection with the element of close assistance and intimate association with the agent in his work, which continues after the initial training period, reference may be made to special writers, employed by the Company to go from district to district to assist debit agents. The special writer is assigned to an agent at the regu- lar meetings held between the assistant manager and his staff, supra. While the Company's ultimate interest is in the agents' results, it closely supervises his efforts toward such results. We recall that moneys collected are weekly turned in to the Respondent, the Company providing a form entitled agent's weekly account. If a policyholder pays premiums in advance, such moneys are not retained by the agent and used by him. They are shown in his debit book and turned in to the Company, which alone has custody of them and has the benefit of their use. Nor is the agent given additional credit or discount for such premiums prepaid, as he might be given or might nor- mally claim were they his to turn in at a later date. Although receipt and payment of claims are company functions, it is considered good business for an agent to handle claims since this creates goodwill. Rose told us that the Company does not object when an agent asks 34 to do this, the request being made to and granted by the claims man, the manager, or the assistant man- ager. From the moment of request for permission to handle a claim until he delivers payment and transmits to the Company the acknowledgment therefor, the debit agent is performing the functions of the claim agent, who is a company representative and employee. In any event Rock does collect his debit. His attempt to show independence in the latter connection is less than reliable as he testified that the Company does not expect him to collect, it is his "own doing" to collect; then, that he is expected to collect his debit, that being one of his functions, but that there is no certain time element as he makes his own arrangements for collecting the debit; he would not be permitted to cover his debit only once a year, and while he does collect weekly, there is no time requirement as far as the Company is concerned: The Company's main interest is that the policies be serviced, but that it does and then that it does not require that the debit be collected! Later Rock told us that he collects his "own way," and that the Company does not tell him anything about that, whether to collect weekly, monthly, or once a year; but finally in this connection that he is supposed to collect from each policyholder as the premium is due, the holder is not to fall 4 weeks in arrears, and the agent is to avoid policy lapses for nonpayment of premiums 35 Despite Rock's claims that he collects his own way, whether weekly, monthly, or annually, and that he determines this himself with the policyholders (the latter make the decision), it is clear from the testimony of this witness, who displayed partisanship to the point of giving patently misleading testimony, that so far from making independent decisions with respect to collections, he does what he is supposed to do and what the Company requires and expects.36 There is no 34 After testifying that the Company has never told him whether he "could or could not" handle claims-he "just did it and that is the way it has been going"-Rock told us that when a claim comes into the office, the manager gives it to him and asks him to verify it. 35 Such testimony readily lends itself to distortion by one side or the other, which needs only to quote one of several versions by the same witness. I have considered all versions and rely on those portions which are consistent with other evidence or which I deem credible 26 The improbability of absence of company requirement concerning collections is under- scored by Rose's testimony that, of the many company agents throughout the country, he does not know of anyone who does not go out on his debit every week UNITED INSURANCE COMPANY OF AMERICA 55 departure from company requirements when the policyholder prepays his premiums so that a longer time will elapse before collection is again necessary. A comedy plot can be found in Kirson's testimony that his parlor of entrapment is a friend's drugstore, where he plays pinochle with the owner and awaits prescrip- tion customers, to whom he tries to sell insurance while they wait for their drugs. If Kirson's practice be cited as evidence of an agent's independence, there is no evidence that the Company has known of this and had opportunity to disapprove. Nor is it suggested that such methods are typical even if successful. (We need not concern ourselves with any possible reflection on the quality of risk as a class when prospects or contacts purchase prescription drugs for themselves or others ) However independent Kirson may claim to be, and unique in his sales methods, he did testify that he spends approximately 40 hours per week collecting and other- wise servicing his debit and that he spends a little additional time for new business. From all of his testimony, it appears that his imaginative approach with respect to new business is limited while the bulk of his efforts are expended in the closely controlled work on his debit As for turning in his collections, Kirson testified that he turns in to the Company more or less than he collects; his deposits depend on his own cash position and his personal inclination. Such an alleged practice, which indicates chaos as far as the Company is concerned as much as independence, is inconsistent with the Company's requirements that debit books be kept current and accurate and that reliable col- lection records be filed, and with the periodic checks which the Company makes. Whether or not various company forms and the instructions to new agents constitute a statutory "demand" to pay over his collections, I do not imply that Kirson has violated the State's insurance code. The elements of unreliability in the testimony of various witnesses need not be detailed. (Rock's was merely the most obvious in this respect.) The specific facts found necessarily depend on the testimony and resolution of conflicts where they exist; but the overall findings and conclusions can nevertheless be made on the basis of the entire record despite the variations from the truth and among the witnesses. We have noted supra several instances and different degrees of attitudes contrary to declared company requirement. In no way can absence of employees as they engage in concerted activities, or union demands or defiance of an employer's regu- lations be construed as evidence of independent contractor status. In this, we must distinguish between a show of independence (as in the case of a strike), even dis- obedience of lawful regulations, and the independent status here in issue. (Such questions as partial strike, right to discharge, insubordination, etc , are not before us.) The actions described do not reflect on the status of the persons involved if it otherwise appears that they are employees. If, as the Company now argues, Scott "has obviously been conducting a vendetta against United" and has issued orders and directives contrary to company regulations and suggestions, failure to take action against him may suggest that in the Company's opinion these may be employees' protected concerted activities; or that, as in the reference, supra, to refusal by the agents to settle their accounts if one of them were discharged, com- pany action against Scott might be followed by reprisals by the agents, whether protected or not, and practical difficulties for the Company 37 Termination of rela- tions with an independent contrartor could be effected at least without penalty under the Act, whatever the reason. Further on the issue of independence of debit agents, testimony was received con- cerning several holdups in which money collected was taken from agents. If, as we have seen, collections belong to the Company and must be regularly turned in, it is not clear that even agent responsibility for moneys which were stolen while in their possession would show independent status or agents' control over such moneys. On the other hand, this is not a reciprocal situation and company assumption of losses by theft would further suggest its direct interest even while the money is in the hands of the agents. Agent Chiodi was robbed while on the debit in September 1964. Scott testified that Chiodi's weekly account sheet and abstract showed full credit for the money thus lost, with a miscellaneous credit notation by the manager or assistant manager to the effect that the money was lost in a robbery. This was clarified when the Company produced the documents. Chiodi's abstract for the week of September 14 lists the item of $74.01 as "Account Short, Holdup Shortage"; and that amount is circled and included in the total collections credited to him in his agent's account 37 Cf. Teschke's testimony concerning "uproar" from the agents in connection with income tax withholding, infra 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form for the same date, with the notation "Holdup Shortage" next to it. The words herein quoted from the abstract and the account are not in the handwriting of Chiodi or of the person who filled out those forms if Chiodi did not. On September 16, Rose wrote to Formwalt that the Company holds agents respon- sible in case of holdup and that the agent must repay the amount lost. Rose testi- fied that the agent is responsible in such cases, but that he did not know what had been done about the sums involved in the holdups concerning which he testified. Again, such testimony describes hope or intent, not a relationship which was main- tained. While Rose also declared that some agents carry burglary insurance, he named none; and none of the agents called by either side testified concerning this. Another agent, Graham, had been robbed of approximately $150 in June. Form- walt testified that he told Graham, "When collections are made I will be glad to help you out"; but that he told Graham that the Company would not "be responsible for this holdup"; and Graham paid the amount the following Thursday. To stave off a "crisis" which was developing and to get the men to settle on the following Thursday, Formwalt had given $150 to Scott, who turned it over to Graham, the Company receiving first Scott's 1 0 U and then returning it after Graham signed a receipt for that amount and turned it in with his collections on Thursday. Allow- ing for Formwalt's failure to distinguish between an I 0 U and a receipt signed by Graham, we note that he testified positively but incorrectly that Scott brought the paper back from Graham. Later he correctly testified that the paper, which Graham had signed, was turned in by Graham with his collections on the following Thursday. It appears that the $150 was first handled as a loan when it was given to Scott, as indicated by the latter's receipt. Whether Graham regarded it as such is not so clear: He then told Formwalt that he thought he should get the money from the Company; and the latter has at least temporized in providing the money and in not pressing Graham for it since, or at least during the 6 months up to the hearing. A third holdup occurred about the month of October, and we are told that when the agent, McQuage, turned in his reports for the period, notations similar to those on Chiodi's appeared on his weekly account and abstract. With various documents before us, including weekly reports, receipts, and Rose's letter of September 16, which may be weighed as expressions of company intent, the practice in such instances and the indicated relationship are reflected in the fact that there is no evidence that the Company or the agents have handled these items as obligations and debts to be repaid. If the Company's records after the respective holdups in June, September, and October show the amounts as debts owed by these agents, evidence thereof would be in the Company's possession. Formwalt testi- fied, in response to my own questions, that the manager has asked Chiodi "to reim- burse," and that the Company has asked the other two agents "to pay it back." The matter was not pursued and we have no details of these requests, when they were made, or what if anything else was said. There is no evidence of any effort to deduct even minimal sums from the amounts credited to Graham (or the others) as weekly earnings; despite Rose's declaration in his September letter that it was Formwalt's responsibility to arrange for repayment to the Company, and Rose's re- quest that Formwalt report to him concerning both the action taken on the 3-month old payment made for Graham and "the type of payment plan . . . entered into with Agent Chiodi." Whether the Company has or will write these holdup losses off is not for us to speculate. But were it necessary to evaluate these incidents and the nature and extent of the action taken, I should find that the procedure followed more nearly suggests an employer-employee relationship than that of independent contractor and responsibility. Related to this is Rock's testimony that he bore the loss when collected premiums were lost in a fire at one of the three places where an office girl collected for him. We have already noted that it does not appear that the Company knew of the col- lection arrangement. Neither does it appear that the Company knew of this loss I have not overlooked the element of independence as Scott testified that he him- self chooses or decides what he tries to sell; he evaluates prospects' needs and makes his decision accordingly; he tries to sell all of the Company's lines, and in the words of counsel for the Company which he adopted, he exercises his own initiative, ability, and experience. Similarly, the agent's analysis, the prospect's preference, and dif- ferences in the available insurance contracts may lead to sale of policies for other companies. From the testimony, this does not appear to be extensive. Scott testi- fied that, in the 9 months that he had been employed by United, he had sold 8 or 10 policies for other companies although not employed by such companies; he reported to them only when he sold one of their policies; he collects premiums with the applications, personally turns them over to the respective other companies, delivers UNITED INSURANCE COMPANY OF AMERICA 57 the policies to the insured, and then is paid by the other companies by check. He has no debit with such other companies nor any agent's commission plan comparable with that with United, and differences between his duties and relationship with them as well as mode of payment are clear. Exclusive service is characteristic of many independent contractors, including franchise holders, and many employees. On the other hand, many independent contractors serve more than one contracting party; while moonlighting among em- ployees is so frequent that it has become a common term. Nor is there any bar either in experience or in reason to employment by one company during part of one's time and independent status vis-a-vis another company. Whatever Scott's and other agents' relationship with other companies, the facts as testified to are not the same as those with respect to United. With the flexibility of hours which this work per- mits on the debit as well as on new business, it would even be difficult to fix the hour when moonlighting may begin. Called by the Company, Spalding testified that, although he has been licensed to sell and has sold for other companies while also licensed for United, he had sold "not too much" or none for another company during the past year. From his testimony it appears that the agents are not limited by United in such matters but that the limits are, as we have seen, self-imposed and quite understandable; and that they depend on prospects and policies available to the agents. The Company prepares and at times revises the agent's commission plan, to which reference has been made, supra. Were employee status otherwise shown to exist in a situation where the employer requires acceptance and observance of its commission plan without signature by the agent, such status would not be affected by the fact that, as here the Company and each agent sign the plan. Von Saleski, who had worked under an earlier commission plan, testified that when the new earnings schedule was prepared and issued, he was permitted to choose whether to go under it or to remain under the former plan; he decided on the new one because "it made [him] more money." The agents were thus given a choice in mode of compensation. The Board, finding employee status in Farmers Insurance Group,38 cited various factors which as they appear in the instant case, might be deemed equivocal; i.e , characteristic of either employee or independent contractor. The Company's power to terminate an agent's earnings on business written by him in view of the right given to either party to terminate the relationship and the provision that renewal commissions are payable to the collecting agent is sweeping and very important; but whatever the effect, even such a provision might be written into and agreed upon in an arrangement with an independent contractor. Without attempting to cite all such, benefits or grants offered by the Company and cited by counsel for the Union as evidence of employee status, such as travel expense for agents who serve in out- lying districts, supra, commission increases, and vacation bonus awards, are quite consonant with the concept of better terms granted to independent contractors and therefore not determinative of our issue. A unilateral right to give, whatever else it may suggest, does not establish or exclusively characterize an employer-employee relationship. Despite the presence of equivocal factors, other factors cited more definitely indicate here the findings to be made, and I find it unnecessary to rely on items which have a less certain sound. Among such latter items is a group insurance plan, which may be operated where an employer-employee relationship exists but, as the court of appeals pointed out in the earlier proceeding,39 is also consonant with independent status. More significant is the existence of Company's saving and profit sharing pension fund, which includes employee deposits and company contributions. Such a plan does not suggest an independent contractor relationship. Indeed, the booklet describing it declares its coverage of eligible employees, and thereafter includes among such any industrial agent "for the purposes of this plan only." Whatever the attempt to limit this in- clusion of agents among employees, their coverage is that of the typical employee. In view of the other evidence which indicates employer-employee relationship, and whatever additional import may attach to company compliance with social security requirements that payments be made for the account of debit agents, I find it un- necessary to rely on this latter. I would not presume to make an incidental decision on an issue which might itself be the subject of considerable litigation before another agency or the courts. It was explained that the Company, while questioning such requirements, complied therewith because it sought to avoid possible "terrific" penal- ties. Conversely, company withholding of earnings for income tax purposes only JS 143 NLRB 240, 243. 8D 304 F. 2d 80, 90. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the extent that an agent indicates might itself be no more than a failure to abide by the law and regulations in that respect . But the evidence concerning this falls short of showing any deviation from withholding requirements in connection with employee earnings. Neither the Company nor its agents contribute to any other unemployment compensation fund. While maintaining that the Company does not withhold sums each week for his Federal income tax , Rock testified that he knows from Federal tax forms how much he should deduct from his earnings , and indicates to the Company on his weekly abstract how much the Company should withhold or hold. (Kirson testified that be turns in more than is required by the Internal Revenue chart , but some weeks "might skip entirely." ) It is thus a fact, even if Rock would picture these payments as his voluntary compliance with Federal withholding figures, that regular deductions are made as required for employees . There is no evidence of exceptions , and in- clusion of withholding tax as one of the items on the weekly abstract suggests that, if voluntary, it is quite regular. If this does not prove employee status , it follows the pattern of such status ; it is hardly typical of an independent contractor relationship. Thereafter Vice President Teschke testified that the Company in 1955 refused to accept such payments or deposits from the agents , but with an "uproar" from the agents and many requests, it again agreed to act as a "voluntary depository for such taxes"; and that it is company policy for the agents themselves to turn in such sums at the end of the year although he does not know whether the Baltimore offices com- ply with such policy. Further and to the extent that the Court relied on its finding that agents retain their own commissions from collected premiums ,40 we can note that the amount of an agent's draw or receipts against earnings is limited (even if eventually received) as the Company protects itself against lapses which may occur . While this may to an extent neutralize the basis for the earlier decision , I do not rely on company desire and action taken to protect itself against ultimate overpayment as proof of employ status. While an agent's total or ultimate earnings may increase as he sells more policies, the Company places a limit on maximum weekly commissions on new in- dustrial business (as distinguished from commissions on collections ). There may later be another form of compensation ; i.e., when an agent sells some of his reserve. With respect to rent, postage , and telephone, these are provided by the Company as well as office space for the agents' use when they come in to attend meetings, settle their accounts weekly, receive mail or request that the office mail something for them, and pick up telephone messages. Provision of such facilities by the Com- pany and use by the agents must be recognized although agents also use their home telephone and some of them maintain an office or workspace with a desk , etc., in their home . While some agents may claim and take a business expense deduction for income tax purposes ,41 it appears from the testimony that the investiment in such cases is slight. Any finding that furniture is provided for the agents would be merged in the finding that they are required to report and attend meetings each week. Attendance being required, facilities are provided for all. To the extent that com- parison is attempted with franchise holders and other independent parties, important differences can be cited including separate investment and control over it, supervision of day-to-day operations , and summary termination and replacement , even if some items are common to employment and so-called independent relationship. While opinions may differ with respect to the weight to be given to the various factors individually and to their collective significance , and an ad hoc decision with respect to both significance and weight must be made in each case , consideration of the en- tire testimony leads to a certain and definite conclusion The significance of factors which suggest an independent contractor relationship is blunted and outweighed by the substantial evidence on the record as a whole, which persuasively indicates that the debit agents are employees of United , and I so find. From this finding it follows that the Company unlawfully refused to bargain , as alleged. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1 Insurance Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 40 Ibid 41 Scott testified that he did this while at Quaker City, where employee status was recognized UNITED INSURANCE COMPANY OF AMERICA 59 2. All debit agents of the Company in districts in Baltimore City and Anne Arundel County, Maryland (districts presently numbered 153, 159, 160, 161, 162, 164, 167, 168, and 174), but excluding all office clerical employees, guards, pro- fessional employees, managers, assistant managers, special agents, inspectors, 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 National Labor Relations Act, as amended. 3. The Union was on August 14, 1964, and at all times since has been the exclu- sive bargaining representative within the meaning of Section 9(a) of the Act, of all employees in the aforesaid unit for the purposes of collective bargaining. 4. By refusing, since September 1, 1964, to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, the Com- pany, United Insurance Company of America, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By such refusal to bargain, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Com- pany has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. 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 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby recommended that the Respondent, United Insurance Company of America, Chicago, Illinois, 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 representative of its employees in the following appro- priate unit: All debit agents in districts in Baltimore City and Anne Arundel County, Maryland (districts presently numbered 153, 159, 160, 161, 162, 164, 167, 168, and 174), but excluding all office clerical employees, guards, professional em- ployees, managers, assistant managers, special agents, inspectors, 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 self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representa- tive of the employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its offices in Baltimore City and Anne Arundel County, Maryland, copies of the attached notice marked "Appendix " 42 Copies of said notice, to be furnished by the Regional Director for Region 5, shall, after being duly signed by the Company's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.43 '= In 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 "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order" 13 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 11 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, as amended, we hereby notify our employees that: WE WILL bargain upon request with Insurance Workers International Union, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment, and embody in a signed agreement any under- standing reached. The bargaining unit is: All our debit agents in Districts in Baltimore City and Anne Arundel County, Maryland (Districts presently numbered 153, 159, 160, 161, 162, 164, 167, 168, and 174), but excluding all office clerical employees, guards, professional employees, managers, assistant managers, special agents, in- spectors and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively with Insurance Workers Inter- national Union, AFL-CIO, as the exclusive representative of our employees in the unit described herein. WE WILL NOT in any like or related manner interfere with, restrain, or co- erce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Insurance Workers International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. UNITED INSURANCE COMPANY OF AMERICA, 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100. Formold Plastics, Inc. and District No. 8, International Associa- tion of Machinists, AFL-CIO. Case No. 13-CA-6641. July 30, 1965 DECISION AND ORDER On May 11, 1965, Trial Examiner Stanley Gilbert issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent filed a brief in support of the Trial Exam- iner's Decision and in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. 154 NLRB No. 16.