Continental Insurance Co.

406 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. Case 2-CA-11531 June 26, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Pursuant thereto, the Respondent filed a statement in opposition to the motion and a cross- motion to transfer the case to a Trial Examiner for hearing. 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. Upon the entire record in this case, the Board makes the following: Upon a charge filed by American Communica- tions Association, Communications Trade Division, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, the General Counsel of the National Labor Relations board, by the Acting Re- gional Director for Region 2, issued a complaint dated March 29, 1968, against Continental In- surance Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that on or about March 6, 1968, the Union was duly certified by the Regional Director for Region 2 as the exclusive bargaining representative of the Respondent's em- ployees in certain appropriate units and that, on or about March 13, 1968, and thereafter, the Respon- dent refused to recognize or bargain with the Union as such exclusive bargaining representative although the Union requested the Respondent to do so. On April 16, 1968, the Respondent filed an answer, denying the commission of the unfair labor practices alleged. On or about April 18, 1968, the General Counsel filed with the Regional Director a Motion for Sum- mary Judgment and a supporting memorandum, as- serting that there were no issues of fact or law which had not already been litigated before and determined by the Board in its Decision and Direction of Elections in a prior representation case,' and requesting an appropriate order remedy- ing the violations as alleged in the complaint. Thereafter, on April 23, 1968, the Board issued an Order Transferring Proceeding to the Board and ' 169 NLRB 600 ' Collins A A,Anian Corporation. 160 NLRB 1750 Ruling on the Motion for Summary Judgment The record before us establishes that on May 4, 1967, the Union filed a petition in Cases 2-RC-14651 and 2-RC-14679 seeking to represent certain appropriate units of claims ad- justers, examiners , and investigators employed by the Respondent in New York City, New York, and Newark, New Jersey, and Perth Amboy, New Jer- sey. After a hearing, the Board issued the aforesaid Decision and Direction of Elections on February 1, 1968, in which it found appropriate bargaining units of claims adjusters, examiners, and investiga- tors employed by the Respondent in New York City, New York, and Newark, New Jersey, exclud- ing all other employees and supervisors as defined in the Act. In or about February 1968, elections were held in the New York City and Newark units, which the Union won. Thereafter, on March 6, 1968, the Re- gional Director certified the Union as the exclusive bargaining representative of the employees in each of the said units. On March 7, 1968, the Union requested that the Respondent bargain with it. This request was refused, whereupon the Union filed the charges on which these proceedings are predicated. In its statement in opposition to the motion Respondent again contends, inter alia, that the units certified to be appropriate by the Board are in fact inappropriate in that claims adjusters were im- properly included in both units and that the New York City unit was improperly limited to one branch office. It is well settled that in the absence of newly discovered or previously unavailable evidence a respondent, in a Section 8(a)(5) proceeding, is not entitled to relitigate issues which were or could have been litigated in the prior representation proceeding.' These contentions had also been 172 NLRB No. 48 CONTINENTAL INSURANCE COMPANY raised, and were considered and rejected by the Board, in the representation case. Inasmuch as the Respondent has or could have litigated in the representation proceeding the issues it presently as- serts, it has not raised any issue which is properly triable in the instant unfair labor practice proceed- ing. As all material issues have been previously de- cided by the Board, or are admitted by the Respon- dent, there are no matters requiring a hearing be- fore a Trial Examiner. Accordingly, the General Counsel's Motion for Summary Judgment is granted and the Respondent's cross-motion is de- nied.' On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New York corporation with headquarters located in New York City, New York, is engaged in the sale and servicing casualty, prop- erty, and life insurance. During the past year, a representative period, the Respondent had a gross annual income from premiums in excess of $500,000, and during the same period purchased and caused to be transported and delivered in in- terstate commerce to various locations in the United States, directly from States of the United States other than the State in which it is located, goods and materials valued in excess of $50,000. 11. THE LABOR ORGANIZATION American Communications Association, Com- munications Trade Division, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The units The following employees of the Respondent con- stitute units appropriate for collective bargaining within the meaning of Section 9(b) of the Act: (a) All New York City branch claims ad- justers, examiners, and investigators, excluding office, clerical, managerial, confidential, and professional employees, and guards, superviso- " Respondent 's contention that the Board is powerless to act upon a mo- tion for summary judgment has no basis in law or policy When there are no questions of fact to be determined, and the issues to be resolved are only 407 ry adjusters, and other supervisors as defined in the Act. (b) All Newark branch claims adjusters, ex- aminers, and investigators excluding office, clerical, managerial , confidential, and profes- sional employees, and guards, supervisory ad- justers, and other supervisors as defined in the Act. 2. The certifications In or about February 1968, a majority of the em- ployees of the Respondent voting in secret ballot elections conducted among the employees in said units, under the supervision of the Regional director for Region 2, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. On march 16, 1968, the Union was certified as the exclusive collective-bar- gaining representative of the employees in the said units and the Union continues to be such represen- tative. B. The Request To Bargain and the Respondent's Refusal Commencing on March 7, 1968, and continuing to date, the Union has requested and is requesting the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described units. On March 13, 1968, and continuing to date, the Respondent did refuse, and continues to refuse, to bargain collectively with the Union as exclusive col- lective-bargaining representative of all employees in said units. Accordingly, we find that the Respondent has, since March 13, 1968, refused to bargain collec- tively with the Union as the exclusive bargaining representative of the employees in the appropriate units, and that, by such refusal, the Respondent has engaged in, and is engaging in, unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening matters of law, the Board is inherently empowered to grant such a motion SeeE-L Da, ze CI,' rolet, 161 NLRB 1380 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8( a)(5) and (1) of the Act, we shall order that it cease and desist therefrom , and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate units and , if understandings are reached , embody such understandings in signed agreements. CONCLUSIONS OF LAW 1. Continental Insurance Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. American Communications Association, Communications Trade Division , International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All New York City branch claims adjusters, examiners, and investigators , excluding office, cleri- cal, managerial , confidential, and professional em- ployees, and guards, supervisory adjusters, and other supervisors as defined in the Act; and all Newark branch claims adjusters, examiners, and in- vestigators excluding office, clerical, managerial, confidential , and professional employees, and guards, supervisory adjusters , and other supervisors as defined in the Act, constitute units appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 6, 1968 , the above-named labor organization has been the exclusive representative of all employees in the aforesaid appropriate units for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on March 13, 1968 , and at all times thereafter , to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees in the appropriate units , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby engaged in, and is engaging in, unfair labor ' In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words " a Decision and practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Continental Insurance Company, New York City, New York, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment , with American Communications As- sociation , Communications Trade Division , Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex- clusive bargaining representative of its employees in the following appropriate units: 1. All New York City branch claims adjusters, examiners, and investigators, excluding office, clerical , managerial , confidential, and profes- sional employees , and guards , supervisory ad- justers, and other supervisors as defined in the Act. 2. All Newark branch claims adjusters, ex- aminers, and investigators excluding office, clerical , managerial , confidential , and profes- sional employees, and guards , supervisory ad- justers, and other supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:(a) Upon request, bargain with the above-named labor organization , as the exclusive representative of all employees in the aforesaid appropriate units with respect to wages , hours, and other terms and conditions of employment, and, if understandings are reached, embody such understandings in signed agreements. (b) Post at its place of business in New York City, New York , and Newark , New Jersey, copies of the attached notice marked "Appendix. "a Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by the Respondent's representative , shall be posted by Order" the words " a Decree of the United States Court of Appeals Enforc- ing an Order - CONTINENTAL INSURANCE COMPANY 409 it immediately upon receipt thereof, and be main- tained by the Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT refuse to bargain collectively with American Communications Association, Communications Trade Division , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining units described below. WE WILL NOT in any like or related manner interfere with, restrain , or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union , as the exclusive represen- tative of all employees in the bargaining units described below , with respect to wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, em- body such understanding in a signed agree- ment. The bargaining units are: 1. All New York City branch claims ad- justers, examiners, and investigators, ex- cluding office, clerical, managerial, con- fidential, and professional employees, and guards, supervisory adjusters, and other supervisors as defined in the Act. 2. All Newark branch claims adjusters, examiners, and investigators excluding of- fice, clerical, managerial , confidential, and professional employees, and guards, super- visory adjusters, and other supervisors as defined in the Act. CONTINENTAL INSURANCE COMPANY (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive 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 provisions , they may communicate directly with the Board 's Regional Office, 745 Fifth Avenue , New York, New York 10022 , Telephone 751-5500.