The Prudential Insurance Co. of America

66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Prudential Insurance Company of America and Insurance Workers International Union, AFL-CIO. Case 7-CA-10976 November 22, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on March 6, 1974, by Insurance Workers Internationl Union, AFL-CIO, herein called the Union, and duly served on The Prudential Insur- ance Company of America, herein called the Respond- ent, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 7, issued a complaint on March 12, 1974, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on December 20, 1973, following a Board election in Case 7-RC-1 1972 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about February 15, 1974, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On March 29 and June 5, 1974, respectively, Respondent filed its answer and amended answers to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 29, 1974, counsel for the General Counsel filed directly with the Board a Motion to Transfer Case to and Continue Proceedings before the Board and for Summary Judgment with attachments. On May 3, 1974, the Respondent filed an answer opposing motion to transfer case. Subsequently, on June 4, 1974, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- Official notice is taken of the record in the representation proceeding, Case 7-RC-11972, as the term "record" is defined in Secs. 102 68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended See LTVElectrosystems, Inc., 166 NLRB 938 (1967), enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26 (CA 5, 1969), Intertype Co v Penello, 269 F Supp 573 (D C Va, 1957), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (CA. 7, 1968), Sec 9(d) of the NLRA eral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled "Statement of Cause for Denial of Summary Judgment." 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 three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer and amended answer to the complaint, in this answer opposing Motion To Transfer Case, and in its response to the Notice To Show Cause Respond- ent attacks the appropriateness of the unit and denies the validity of the certification on the grounds that employees were offered a financial inducement in the form of a dues waiver for their support of the Union and argues that it is entitled to litigate this matter, which is newly discovered, at an evidentiary hearing. Affirmatively, it alleges that there is no evidence that a quorum of a panel of three Board Members acted upon its Request for Review in the representation pro- ceeding. We do not accept the Respondent's position. Our review of the record herein, including the entire record in Case 7-RC-1 1972, discloses that after a hear- ing, the Regional Director on November 16, 1973, is- sued a Decision and Direction of Election in which we found a unit of office clerical employees limited to the Grosse Pointe District Office to be appropriate, con- trary to the broader unit urged by the Respondent. Respondent filed a Request for Review of the unit determination which was denied by the Board on the ground that it raised no substantial issues warranting review.' Thereafter, on December 12, 1973, an elec- tion was conducted in which the employees in the unit found to be appropriate unanimously selected the Union as their bargaining agent. Respondent did not file objections to the election. The Regional Director thereupon certified the Union on December 20, 1973. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by the Respondent in this proceed- 2 We find no merit in Respondent's quorum contention as the decision denying review of the Regional Director's decision in Case 7-RC-1 1972 resulted from the personal participation of the Board Members and was their decision See KFCNational Management Company, 214 NLRB No 29, fn 3 (1974). 3 See Pittsburgh Plate Glass Co. v N.LR.B., 313 U S 146 , 162 (1941); Rules and Regulations of the Board, Secs . 102 67(f) and 102 69(c) 215 NLRB No. 30 PRUDENTIAL INSURANCE CO. ing were or could have been litigated in the prior re= presentation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. As indicated above, the Respondent denies the valid- ity or the Union's certification because of the Union's general practice to waive dues payments until a con- tract has been signed and accepted by the employees. Since it alleges that it was unaware, and reasonably could not have been aware, within the time for filing objections to the election, the Respondent argues that it is entitled to litigate this matter at an evidentiary hearing. We disagree. Although the Union's general practice to waive dues was allegedly first discovered at the hearing in another representation case, there is no showing that, with due diligence, the Respondent could not have uncovered the evidence in time to file timely objections. In any event, the objection based upon newly discovered evidence of waiver would still be sub- ject to Section 102.69 of the Board's Rules and Regula- tions requiring objections to be filed within 5 days after the tally of ballots has been furnished and, therefore, the waiver objection herein would be considered untimely.' Finally, the waiver of dues until a contract has been signed and accepted does not fall within the proscription of the Supreme Court's decision in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973).5 Accordingly, we shall grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, a New Jersey corporation with its prin- cipal office and place of business in Newark, New Jer- sey, is engaged in the sale and effectuation of life insur- ance, health, group, and annuity contracts. Respondent's Grosse Pointe District Office in Harper Woods, Michigan, is the only office involved in this proceeding. During the past year Respondent has a gross revenue in excess of $1 million, of which more than $50,000 in premiums were received at its main offices directly from States other than the State of New Jersey. 4 Jason/Empire, Inc., 212 NLRB 137 (1974), Heritage Nursing Center, Inc, 207 NLRB 826 (1973) ' S & S Product Engineering Services, Inc, 210 NLRB 912 (1974) 67 We find, on the basis of the foregoing, that Respond- ent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectu- ate the policies of the Act to assert juridsiction herein. If THE LABOR ORGANIZATION INVOLVED Insurance Workers International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All office clerical employees employed by the Respondent at its Grosse Pointe District Office located in Harper Woods, Michigan; excluding agents, professional employees, guards, and super- visors as defined in the Act. 2. The certification On December 12, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Direc- tor for Region 7, designated the Union as their re- presentative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on December 20, 1973, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 18, 1974, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about February 15, 1974, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bar- gaining of all employees in said unit. Accordingly, we find that the Respondent has, since February 15, 1974, and at all times thereafter, refused to bargain collectively with the Union as the exclusive 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the employees in the appropriate unit, and that by such refusal, Respondent has engaged in and is engaging in unfair labor - practices 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 Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, 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 and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bar- gain collectively with the Union as the exclusive rep- resentative of all employees in the appropriate unit, and, if an understanding is reached, embody such un- derstanding in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commerce:, to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 329 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Com- pany, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. The Prudential Insurance Company of America is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Insurance Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All office clerical employees employed by the Re- spondent at its Grosse Pointe District Office located in Harper Woods, Michigan, excluding agents, profes- sional employees, guards, 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 Act. 4. Since December 20, 1973, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about February 15, 1974, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respond- ent in the appropriate unit , 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 , Respondent has interfered with , restrained, and coerced, and is in- terfering with, restraining, and coering, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engag- ing in unfair labor 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 Re- lations Act, as amended , the National Labor Relations Board hereby orders that Respondent , The Prudential Insurance Company of America, Harper Woods, Mi- chigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Insurance Workers International Union, AFL-CIO, as the exclusive bargaining re- presentative of its employees in the following appropri- ate unit: All office clerical employees employed by the Respondent at its Grosse Pointe District Office located in Harper Woods, Michigan, excluding agents, professional employees, guards, and super- visors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect to rates of pay, wages , hours, and other terms and PRUDENTIAL INSURANCE CO. conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its office in Harper Woods, Michigan, copies of the attached notice marked "Appendix. ,6 Copies of said notice, on forms provided by the Re- gional Director for Region 7 after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms 69 and conditions of employment with Insurance Workers International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our 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 representative of all employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All office clerical employees employed by us at our Grosse Pointe District Office located in Harper Woods, Michigan; excluding agents, professional employees, guards, and supervisors as defined in the Act. THE 'PRUDENTIAL INSURANCE COMPANY OF AMERICA