Continental Insurance Co.

600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' Continental Insurance Company and American Communications Association, Communications Trade Division, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Petitioner. Cases 2-RC-14651 and 2-RC-14679 (formerly 22-RC-3696) February 1, 1968 DECISION AND DIRECTION OF ELECTIONS BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND BROWN Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a consolidated hearing was held before Hearing Of- ficer Raymond P. Green. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Thereafter, the Employer and the Petitioner filed briefs in support of their position. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. Questions affecting commerce exist concern- ing the representation of employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Employer is engaged in all phases of the sale and `service of casualty, property, and life in- surance throughout the United States and Canada. Its home office is located in New York City, New York. Regionally, the Employer operates through nine departments, each one servicing a different geographic area of the United States and Canada: the Eastern, Metropolitan New York City, Middle, Southeastern, Buckeye, Western, Southwestern, Pacific, and Canadian departments. The Metropolitan New York City department consists of three branch claims offices located within 25 miles of each other: New York City, Huntington, and White Plains. The Middle department consists of nine branch claims offices: Newark and Perth Amboy in New Jersey; Baltimore, Maryland; Charleston, West Virginia; Washington, D. C.; and Allentown, Har- risburg, Pittsburgh, and Philadelphia, Pennsylvania. With respect to the Metropolitan department, in Case 2-RC-14651, the Petitioner seeks a unit con- 169 NLRB No. 85 listing of all claims adjusters, examiners, and in- vestigators (herein called adjusters), and also the supervising adjusters in the New York City branch claims office. The Employer contends, initially, that the only appropriate unit is one that should also in- clude the other two branches of the Metropolitan department, Huntington and White Plains. With respect to Case 2-RC 14679, the Petitioner seeks two separate units of adjusters and supervis- ing adjusters, one at the Employer's Newark, New Jersey, and the other at its Perth Amboy, New Jer- sey, claims office, both in the Middle department. The Employer argues for a combined unit of all nine branch claims offices in the Middle department. All, nine departments perform basically the same functions: selling insurance policies and settling claims. Each department is headed by a departmen- tal manager with overall responsibility for the Em- ployer's business within his territory. At the branch office level there is a branch manager with twin responsibilities. He reports to the manager of his department and also to an official at the home office in charge of his particular operating function. At the Metropolitan New York City department, Henry Gregory is the departmental manager. He is also the head of the New York City branch claims of- fice. The other two branch offices are headed by branch claims managers who report to Gregory in his capacity as department manager. In opposing the unit sought by Petitioner in Case 2-RC-14651, the Employer contends that the smal- lest relatively autonomous unit of its claims struc- ture is composed of claims employees from all three branches making up the department. It argues that the centralized control exerted over White Plains and Huntington by the same personnel as exercise control of the New York City branch office com- pels this conclusion. This control, the Employer ar- gues, is manifested in various ways. Thus, one of the Employer's exhibits reveals that between November 4, 1966, and May 11, 1967, supervisors from the New York City office in their departmen- tal capacity made 40 full-day visits to the other two branches. These visits were primarily for the pur- pose of improving claims processing procedures and occasionally would include the settlement of certain claims. These visits, however, represent no' more than a normal degree of departmental supervi- sion over the activities of a subordinate body. One would expect this degree of supervision to be exer- cised by any regional office over a district office. As evidence of employee interchange, the Em- ployer presented evidence that out of a group of ap- proximately 110 claims employees in the three branches there have been about 40 nonpromotional transfers since 1960. Most of these transfers, how- ever, were permanent and not temporary in- terchanges; and the few temporary interchanges were virtually all to a World's Fair branch which was set up for a specific purpose and for a limited time. CONTINENTAL INSURANCE COMPANY 601 The Employer relied heavily on the fact that claims of a certain category, arising at the branch offices and denominated DCO reporting claims, are closely supervised by personnel from the Metropolitan department headquarters. The branch office places what is called a reserve on each claim that it receives. DCO claims are those claims in which the estimated liability, the reserve, exceeds a certain stated amount. The department headquar- ters keeps a separate file on all DCO claims. The record reveals that the non-DCO claims far exceed DCO claims both numerically and in moneys paid. All such non-DCO claims are handled exclusively at the branch office levels. Therefore, it is quite clear that, in the vast majority of claims processed to conclusion, the branch offices are in complete control. It is true, as the Employer contends, that such personnel policies as hiring, firing, and the granting of raises are quite centralized, and final authority in these areas resides in the person of Departmental Manager Gregory. It appears, though, that the in- itiation of all such actions occurs at the branch level, and they are generally approved. Although the Employer's claims operations are performed with a substantial degree of centralized control and coordination, we nevertheless do not agree that these attributes of company structure are sufficient to defeat the appropriateness of a separate bargaining unit covering the New York City branch claims office. Notwithstanding the cen- tralization in certain areas, it appears clear to us that the Employer's other two branch offices in the Metropolitan Department are, to a large extent, separate entities. They are responsible directly and individually to the department head. Their claims processing activities are, to a substantial degree, performed subject only to the supervision of the local branch manager who is responsible for day-to- day operations. As indicated above, the great majority of claims are settled exclusively by the branch claims office. We have also noted the absence of any significant amount of temporary in- terchange among nonsupervisory personnel among the branch offices. There is likewise no evidence of any uniformity of wage structure among the three branches. In view of the above facts, we are of the opinion that the Employer's New York Branch office pos- sesses sufficient autonomy and separate identity to make it an appropriate unit for collective bargain- ing. We see no warrant here for departing from our customary position in such cases.' As we observed in Utica Mutual, a factually similar case, "Neither the fact that the regional of- fices merely implement centrally promulgated poli- cies, nor the fact that the home office performs a variety of services in support of regional operations, nor the fact that the actual activities carried on in the regional offices are to an extent duplicated, con- trolled, or assisted by the home office, defeat the separate identity of the Employer's branch ... claims offices." The Employer's other arguments in support of its contention for a departmental unit have been considered but do not appear to be meri- torious. In Case 2-RC-14679, many of the same con- siderations control in determining whether Newark and Perth Amboy in the Employer's Middle depart- ment are separately appropriate for collective-bar- gaining purposes. The record shows that each of these branches is separately autonomous in its operations. Neither reports to the other; there is separate supervision and virtually no employee in- terchange. In view of the foregoing, we find that a unit limited to the New York City branch office of the Employer is appropriate for collective-bargaining purposes; and that two separate units limited to the Newark and Perth Amboy, New Jersey, branch claims offices are appropriate for collective bargain- ing. We now examine the Employer's contention that supervisory adjusters should be excluded from any appropriate units as supervisors within the meaning of the Act. The Petitioner, although conceding that certain named individuals are supervisors, nevertheless maintains that the supervisory ad- justers are not supervisors within the meaning of the Act.2 In the New York City branch office there are (ex- cluding the stipulated supervisors) 13 supervisory adjusters. Of this number 12 are in the bodily injury section, and one is in the physical damage section. The other sections contain no supervisory adjust- ers.3 The branch office contains approximately 43 adjusters, 6 compensation examiners, and 5 com- pensation investigators. The dispute over the supervisory status of super- visory adjusters centers primarily on the bodily in- jury section where 12 of the 13 supervisory ad- justers are located. Seven of these supervisory ad- a As we noted in Utica Mutual Insurance Company, 165 NLRB 964, "Since Section 9(b) specifically recognizes the validity of the plantwide unit, the Board has long held that a unit confined to a single manufacturing plant of a particular employer is presumptively an appropriate unit.... Moreover, where a district office in the insurance industry possesses the requisite autonomy, the Board has considered such office as the analogue of the single manufacturing plant." See, e.g. , Metropolitan Life Insurance Co (Woonsocket, R. 1.), 156 NLRB 1408. The Employer's reliance on State Farm Mutual Automobile Insurance Co., 158 NLRB 925, appears to be misplaced. State Farm is clearly distinguishable, as the record in that case revealed that day-to-day supervision was exercised on a divisional, multioffice rather than a branch office basis, and that the various claims offices lacked sufficient autonomy to be separately appropriate. z We accept the stipulation reached in Case 2-RC-14651 that certain named individuals are supervisors within the meaning of the Act. 3 The New York City branch office contains the following sections: bodily injury, physical damage, workmen's compensation, fire loss, bur- glary, and subrogation. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD justers each have three adjusters assigned to them, and one has two adjusters assigned to him. Of the remaining five supervisory adjusters , two handle "foreign" claims and do not have any adjusters per- manently assigned to them . They may, however, as- sign work to any adjuster in the office . One other supervisory adjuster plans to retire soon and has no men assigned to him while he completes his pending cases. Another supervisory adjuster is new and will shortly be assigned adjusters . The only remaining supervisory adjuster, located in the physical damage section , performs essentially the same work as his counterparts in the bodily injury section. For all relevant purposes the Newark and Perth Amboy offices are similarly structured , although Perth Amboy is too small to be divided into sec- tions. We are of the opinion that all of the supervisory adjusters in dispute are supervisors within the meaning of the Act.4 We are aware that the label "supervisor" in itself is not controlling in deciding this issue . We have long held that supervisory status is determined by the actual duties perform- ed.5 However , it is not necessary to show that an individual has all the indicia of supervisory authori- ty; it need only be shown that an individual pos- sesses one or more of the indicia listed in the statu- tory definition to bring him within the scope of that definition.6 The record is clear that the supervisory adjusters responsibly direct the work of the adjusters as- signed to them . When a claim is received by the of- fice, it first goes to a supervisory adjuster who establishes a "reserve" for the claim. He then as- signs it, using his discretion, to any of the adjusters assigned to him. At this time the supervisory ad- juster gives directions to the adjuster with respect to what he wants done in connection with the claim. These instructions are often detailed . The adjusters are expected to comply with the instructions given them and failure to do so may result in disciplinary action. Further, in any case which requires a settlement in excess of an adjuster's settlement authority, it is necessary to secure the approval and authorization of the supervisory adjuster. Regardless of the ad- juster's opinion on the value of the claim, the judgment of the supervisory adjuster is controlling.7 It appears to us that the nature of the direction exercised by the supervisory adjusters is of a responsible rather than a routine nature. Thus, although the amount of'actual direction performed 4 We are, however, unable to adopt the Employer's contention that all regular adjusters should be excluded from the unit because they are managerial employees . We reach this result for the reasons set forth in Lumberman's Mutual Casualty Co. of Chicago, 75 NLRB 1132. 5 Cooke & Jones, Inc., 146 NLRB 1664. 6 Clark-O'Neill, Inc., 147 NLRB 370. by a supervisory adjuster will vary depending on the experience and skill of the adjusters and the value of the claim, the supervisory adjuster is ulti- mately responsible for all the cases assigned to him. The evidence before us reveals that often when directing the settlement of an important case, the supervisory adjuster will independently establish the most appropriate course of action and will then require the adjuster to proceed in accordance with that judgment. These directions appear to be much more than ministerial or routine in nature. In addition to their power to responsibly direct work, supervisory adjusters also have the power to, and do in fact, effectively recommend raises and promotions . Gregory testified in this connection that he "can't possibly review all of the files that are assigned to each one of these men [adjusters], and I have to rely upon the supervisory adjuster's recommendations, because he is more intimately in- volved on a daily basis , as contrasted to my periodic review." Further, Petitioner concedes that in late 1965 Gregory indicated to the supervisory ad- justers that they could and should make such recommendations . Notwithstanding Petitioner's contention that these recommendations are no longer solicited, the transcript is replete with exam- ples of recently written recommendations placed in the adjuster's personnel file and which have been favorably acted upon. Both in the areas of work direction and effective recommendation of personnel action , the same fac- tors which lead us to conclude that supervisory ad- justers possess these powers in the New York City branch appear to be equally present in Newark and Perth Amboy.8 The question of whether supervisory adjusters possess any of the other indicia of supervisory status set forth in the Act is in sharp dispute. How- ever, in view of our foregoing conclusions , we need not resolve these credibility issues. It is clear that supervisory adjusters possess at least two substan- tial indicia of supervisory status, and this is suffi- cient to exclude them from the unit. There remains for consideration only the question of whether Lillian Simmons is a claims ad- juster and hence to be included in the New York City unit. We find that Simmons is an office clerical and therefore should not be included in the unit. On the basis of the foregoing and the entire record in this case , we find that the following con- stitute units appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. In this regard it is pertinent to note that , where adjusters generally have about $250 in settlement authority , the settlement authority of super- visory adjusters is substantially higher, generally ranging between $2,500 and $3,500. 6 Unlike New York City where the practice was for written recommen- dations for salary increases to be submitted , in these two branches it ap- pears that such recommendations were made orally. CONTINENTAL INSURANCE COMPANY (1) All New York City branch claims adjusters, examiners , and investigators , excluding office, cler- ical, managerial , confidential, and professional em- ployees, and guards, supervisory adjusters, and other supervisors as defined in the Act. (2) All Newark branch claims adjusters, ex- aminers, and investigators, excluding office, cleri- cal, managerial , confidential , and professional em- 9 Election eligibility lists , containing the names and addresses of all eligible voters in the respective units, must be filed by the Employer with the Regional Director for Region 2 within 7 days from the date of this Decision and Direction of Elections. The Regional Director shall make these lists available to all parties to the elections No extension of time to 603 ployees, and guards, supervisory adjusters, and other supervisors as defined in the Act. (3) All Perth Amboy branch claims adjusters, examiners , and investigators , excluding office, cler- ical, managerial, confidential, and professional em- ployees, and guards, supervisory adjusters, and other supervisors as defined in the Act. [Direction of Elections 9 omitted from publica- tion.] file these lists shall be granted by the Regional Director except in extraor- dinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election or elections whenever proper objec- tions are filed Excelsior Underwear Inc., 156 N LRB 1236