Empire Mutual Insurance Co.

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Empire Mutual Insurance Company and Local 707, International Brotherhood of Teamsters, Petitioner. Cases 29-RC-1741 and 29-RC-1742 January 31, 1972 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Jerome Katz of the National Labor Relations Board. Following the close of the hearing the Regional Director for Region 29 transferred this case to the Board for decision. There- after, the Employer and Petitioner filed briefs. 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 au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. The scope of the unit: The Employer is an insur- ance company with its home office in New York City and with branch offices at various locations in the State of New York, where it does most of its business, and such out-of-state locations as Miami, Florida, Spring- field, Massachusetts, and Providence, Rhode Island. In the Metropolitan New York City area it has five branch offices, one of which, located at Rockville Center, is concerned mainly with handling claims arising in Nas- sau and Suffolk Counties. The Petitioner seeks a single unit of all employees at the Rockville Center office or alternatively two units at that location, one limited to clerical employees, the other including all other em- ployees. The Employer contends primarily that any unit limited to the Rockville Center office is inappropri- ate in view of the integration of its operations and the lack of autonomy or authority on the branch level. It suggests that the smallest appropriate unit would be one limited to all its New York State operations or 195 NLRB No. 48 perhaps to those in the metropolitan area of New York City.' The Rockville Center branch is some 30 miles from the Employer's home office and the nearest other branch office, and it occupies the second floor of a small office building. There is a branch manager and some 90 employees, including supervisors. Approximately 55 of the office complement are engaged primarily in claims related work and are classified mainly as examiners, adjusters, legal prepmen, and clericals; the remainder are concerned essentially with underwriting related work and are classified as underwriters and clericals. There is little or no interchange between Rockville Center employees and those at the home office and other branches. Consequently, the Rockville Center branch would by itself appear to be a separate geo- graphic and administrative entity and, thus, presump- tively appropriate for purposes of collective bargain- ing.' However, the Employer contends that this presumption is overcome by the evidence showing a high degree of integration of its operations and lack of authority and autonomy at the branch level. To be sure, evidence demonstrates that the Rockville Center branch is not an independent enterprise but rather a segment of the Employer's business operating within guidelines integrating it into the Employer's op- erations in order to achieve the Employer's corporate purposes in what is considered an effective and efficient manner. Thus, for example, claims and underwriting risks must meet certain established company standards to be accepted on the branch level and require home office approval if a variance is involved. Clerical meth- ods, forms, and reporting are basically prescribed by and integrated with home office procedures and there are the necessary checks and branch office surveys by home office personnel to see that prescribed standards and methods are being met. On occasion changes have been required at Rockville Center by the home office either to assure branch compliance with established standards and procedures or to improve branch office operations. With respect to the working conditions of the employees in the requested unit, the record shows that benefits, such as length of vacation, holidays, hos- pitalization, and starting wages or salaries are estab- lished by the home office on a companywide basis, that pay increases require ultimate home office approval, ' There are references in the record by the Employer 's witnesses to a metropolitan division and the record does show that one officer at the home office oversees to some extent the operations of the five branches in the New York City area There is , however , no evidence of any division headquarters or division staff, or of any decisions or policies made at a division level or limited in operation to a metropolitan division Accordingly , we find on the record here that the metropolitan division is not a separate geographic and administrative division of the Employer 's operations ' See, e g , Equitable Life Assurance Society, 192 NLRB No 80, Fire- man's Fund Insurance Co, 173 NLRB 982, 984 EMPIRE MUTUAL INSURANCE CO. 285 and that the hiring of employees also requires such approval. However, as the Board has held, a substantial degree of administrative centralization does not alone rebut the presumption of appropriateness of a single branch office where there exist significant factors in support of the smaller unit.' We find that such factors are present here. Reference has already been made to the geo- graphic separation of Rockville Center from the Em- ployer's other operations and the lack of any significant employee interchange. Additionally, the record shows that the day-to-day operations of the Rockville Center branch both with respect to carrying out the Em- ployer's business purposes and with respect to dealing with personnel are handled primarily at the branch level.Thus, with respect to claims, the branch manager makes certain that they are properly channeled, that home office guidelines are followed, that problems with insureds and claimants are avoided, that proper settle- ments are reached, and that the requisite legal papers are promptly sent to the home office. As for the claims adjusters themselves, they work out of the branch office, are assigned their cases by the branch office, report in to the branch office, and use branch office clerical help. Also, their work is reviewed at the branch office to see that it is properly done, and they direct their requests for pay raises to the branch manager. As for claims clericals, they are subject to the immediate supervision of a branch office clerical supervisor and to that of the branch manager. Employees seeking branch employment are for the most part first interviewed at the branch level. If found unsatisfactory the matter ends there; if, however, the individual is found satisfactory the branch forwards to the home office its recommendation that the individual be hired. Such recommendations have been approved in all cases involving clericals and in most cases involv- ing other employee classifications. As for merit pay raises, an employee first requests branch supervision for the raise. The matter is then considered and a recom- mendation sent to the home office. In practically all cases where recommended by the branch manager a raise has been given, and in only a small minority of cases in the past year has the precise amount of the increase varied from that proposed. With respect to vacations, the home office specifies the period during which vacations may be taken, but the actual schedul- ing of time off for each employee is worked out at the branch level. It is unnecessary to elaborate further the extensive details concerning the Employer's operations set forth in the record, for they neither add to nor detract from the preceding account, which amply shows that the Rockville Center branch is a separate geographic and ' Equitable Life Assurance Society, supra administrative division of the Employer's operations. We find, thus, that all employees" at that branch consti- tute a single separate appropriate unit.' The composition of the unit: Contrary to the Peti- tioner the Employer would exclude claims examiners from the unit on the ground that they are supervisors and would exclude the branch manager's secretary as a confidential employee. The examiners: The Rockville Center Branch em- ploys some seven or eight examiners who are responsi- ble for the proper processing of claims. About five han- dle third party claims and each of these has three adjusters assigned to him; the others handle first party claims but do not have a group of adjusters working under them. On receiving a group of claims for process- ing, an examiner makes up a file on each and then if he is a third party examiner assigns the claim to an ad- juster for investigation.6 Such assignments are made essentially on a random basis with the exception, how- ever, that the difficult cases are given to the more ex- perienced adjusters. Certain instructions for the adjust- ers go with the assignment of a claim, but the instructions concern primarily routine matters. For ex- ample, an adjuster may be told to obtain signed state- ments from witnesses, to check to see if police were on the scene of an accident, and to take pictures or make relevant measurements. There is no evidence that ex- aminer's, apart from such general instructions, tell an examiner how to investigate a case. They may, how- ever, direct an adjuster to reinvestigate if they deter- mine his work was not properly done the first time. Thus, though the third party claims examiners have some regular responsibility with respect to assigning work to adjusters and seeing that a claim is properly handled, as set forth above, such responsibility involves The Employer contends that clericals should be in a unit separate from other employees the Petitioner seeks to represent However, the clericals work in the same office area as, and come in frequent contact with, other employees, and we see no reason, and the employer has advanced no persua- sive reason , why they must be placed in a separate unit Furthermore, the Board has held single units of all branch office employees to be appropriate See, e g., Utica Mutual Insurance Company, 165 NLRB 964 The record indicates that underwriting supervision at Rockville Center, both with respect to its underwriting activities and with respect to recom- mendations affecting personnel such as those concerning the hiring of, and granting of raises to, underwriting clericals, deal directly with the home office and not through the branch manager There is further some equivocal testimony concerning the branch manager's responsibility for the underwrit- ing operations However , as autonomy at the local level depends for unit purposes upon the authority and responsibility at the local office and not upon the number of persons to whom such authority and responsibility have been entrusted ( Utica Mutual Insurance Company, supra, at 965), we find that whatever autonomy underwriting supervision has vis-a-vis the branch manager, that autonomy does not detract from the autonomy of the branch or from the appropriateness of a single unit of all branch employees ' See, e g , Continental Insurance Company, 169 NLRB 600, 601, Utica Mutual Insurance Company, supra, Western and Southern Life Insurance Company, 163 NLRB 138, 141-143 ' Investigations of first party claims are handled by outside firms, though on occasion a first party examiner may direct an adjuster to get a statement or check out some matter for him on a first party claim 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD essentially routine matters. Furthermore, there is no evidence that examiners can hire or discharge adjusters or other employees or effectively recommend such ac- tion. Finally the fact that an examiner may criticize an adjuster's work or may be consulted concerning merit pay raises for adjusters does not demonstrate super- visory authority where as here no personnel action re- sults from the examiner's criticism or recommenda- tions independently of the branch manager's own investigation and consideration of an issue. The third party examiners fill a role more akin to that of leadmen in industrial concerns, whom we customarily find do not possess sufficient indicia of supervisory authority as to require their exclusion for bargaining units. We shall therefore direct that they be included in the unit. The plant manager's secretary: Scaduto, classified as a typist, acts as the personal secretary to the branch manager, though she may also do other clerical work. However, as there is no evidence, and in fact no conten- tion, that the branch manager formulates, determines, and effectuates management policy in the field of labor relations, there is no basis, whatever may be Scaduto's responsibilities, with respect to the branch manager, for finding her to be a confidential employee.' Therefore she is included in the unit.' ' The B.F Goodrich Company, 115 NLRB 724 ' Chairman Miller would exclude the manager's secretary In his view the In view of the foregoing, we find that all employees of the Employer employed at its Rockville Center, New York, branch office, excluding attorneys, guards, and supervisors as defined by the Act, constitute an appro- priate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act. [Direction of Election' omitted from publication.] fact that the manager is the Employer's principal representative and agent at the branch office necessarily involves him in the day -to-day formulation, determination , and effectuation of labor relations policy at the office, both in creating solutions to difficulties that may suddenly arise and in applying to the particular operations and problems of his branch labor policy estab- lished in broad outline at the home office See Chairman Miller 's dissenting opinion in Holly Sugar Corp., 193 NLRB No 150 ' In order to assure that all eligible voters may have the opportunity to be Informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them. Excelsior Underwear Inc, 156 NLRB 1236, N.LR.B v Wyman-Gordon Co., 394 U.S. 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 29 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordi- nary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed