Home Beneficial Association of Richmond, Va.

In the Matter of HOME BENEFICIAL ASSOCIATION OF RICHMOND, VA. and INDUSTRIAL AND ORDINARY INSURANCE AGENTS' COUNCIL Case No. R-1560.-Decided November 28, 1939 Life, Industrial , and Health and Accident Insurance Business-Iurisdiction: employer engaged in trade, traffic , and commerce in the District of Columbia- Investigation of Representatives : controversy concerning representation of em- ployees : refusal to recognize petitioning union , company claims its activities did not bring it within the jurisdiction of the Board-Unit Appropriate for Collective Bargaining: controversy as to : debit collectors and canvassers in the Washington offices of the Company , excluding superintendents,. assistant super- intendents, and special representatives-Election Ordered: intervenor excluded from ballot because of failure to establish that it represented any employees in. the appropriate unit. Mr. Samuel M. Spencer, for the Board. Mr. Sherlock Brownson, of Richmond, Va., for the Company_ Mr. Herbert S. Thatcher, Mr. Ralph U. Boyer, and Mr. George L.. Russ, of Washington, D. C., for the Council. Mr. George Brody and Mr. Lou Vennett, of Washington, D. C., for the U. O. P. W. A. Mr. Howard S. Friedman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 29, 1939, Industrial and Ordinary Insurance Agents' Council, herein called the Council,' filed with the Regional Director for the Fifth Region (Baltimore, Maryland), a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Home Beneficial Association,' Washington, D. C., herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.. 1 Although the petition was filed by the Council it is clear from the record that it is Industrial and Ordinary Insurance Agents' Union, Local No. 21354, Industrial and Ordi- nary Insurance Agents' Council, which seeks certification. 2 Sometimes referred to as home Beneficial Association of Richmond, Va.. 17 N. L. R. B., No. 100. 102.7 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- On September 15, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article II, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On September 28, 1939, the. Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the Council, and upon the Director of the Congress of Industrial Organizations, Baltimore, Maryland. On October 10, 1939, the Company filed with the Regional Director a Plea to the Jurisdiction in which it entered a special appearance and moved that the case be dismissed for lack of jurisdiction on the grounds that the Company, a Virginia corporation, is engaged ex- clusively in the insurance business, does not use raw materials or ship products in interstate commerce, and is not engaged in inter- state commerce within the meaning of the Act or the Constitution of the United States. At the same time the Company filed an answer to the petition in which it denied the appropriateness of the unit alleged in the petition. Pursuant to notice, a hearing was held on October 11, 1939, at Washington, D. C., before William B. Barton, the Trial Examiner duly designated by the Board. The Board, the Company, and the Council were represented by counsel. The United Office & Profes- sional Workers of America, affiliated with the Congress of Industrial Organizations, herein called the U. O. P. W. A., a labor organization claiming to respresent employees directly affected by the investiga- tion, was represented by a duly authorized representative. All par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the commencement of the hearing counsel for the Company appeared specially and renewed its motion to dismiss for lack of jurisdiction. The Trial Examiner reserved ruling thereon. The Plea to the Jurisdiction and motion to dismiss are hereby denied. At the outset of the hearing the U. O. P. W. A. moved to intervene in the proceedings. This motion was granted by the Trial Examiner. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner- and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On October 14, 1939, the Company requested leave to file a brief and to present oral argument before the Board. On October 21, 1939, HOME -BENEFICIAL ASSOCIATION OF RICHMOND, VA. 1029 the Company waived its request for oral argument. Pursuant to leave granted by the Board to all parties, briefs were filed by the Company and the Council on October 27, 1939, and October 30, 1939, respectively. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Home Beneficial Association is a Virginia corporation engaged in the sale of ordinary, industrial, life, and health and accident insurance, with its main office in Richmond, Virginia, and approximately 44 branch offices located in the States of Virginia, Maryland, and Ten- nessee, and in Washington, District of Columbia. It is with the employees of the Company's two Washington offices that this pro- ceeding is concerned. The Company has outstanding approximately 620,000 insurance policies, between 63,000 and 64,000 of which are serviced by the Washington offices. In 1938 the gross receipts from premiums collected by the Washington offices of the Company aggregated approximately $596,000. The assets of the Company consisting of cash in banks, real estate, mortgages, stocks, and bonds amount to approximately $9,000,000. At its Washington offices, the Company employs approximately 108 persons. We find that the Company is engaged in trade, traffic, and commerce in, the District of Columbia. II. THE ORGANIZATIONS INVOLVED Industrial and Ordinary Insurance Agents' Union, Local No. 21354,. Industrial and Ordinary Insurance Agents' Council, is a labor organization affiliated with the American Federation of Labor, ad- mitting to its membership the debit collectors, canvassers, and assist- ant superintendents of the Company at its Washington, District of Columbia, offices, excluding superintendents. United Office & Professional Workers of America, C. I. 0., is a labor organization affiliated with the Congress of Industrial Organi- zations, admitting to its membership debit collectors and canvassers of the Company but excluding superintendents and assistant superintendents. III. THE QUESTION CONCERNING REPRESENTATION Between July 1938 and April 1939 several bargaining conferences were held between the Council and the Company. While these nego- 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tiations resulted in the Company's making several concessions to its employees, no agreement was reached by the parties and the Com- pany throughout took the position that its activities did not bring it within the jurisdiction of the Board. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce within the District of Colum- bia, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Council and the U. 0. P. W. A. agree that the unit appropriate for the purposes of collective bargaining consists of the debit col- lectors and canvassers at the Washington offices of the Company. The Company contends that the appropriate unit should include all the offices of the Company and that assistant superintendents and special representatives should be included in the unit together with the debit collectors and canvassers. In support of its contention that the unit should include employees in all its offices, the Company introduced evidence to show that the board of directors in the central office at Richmond, Virginia, fixes the salaries and commissions of all employees, which are uniform throughout the Company's offices ; that the duties, responsibilities, and obligations of all debit collectors, canvassers, and assistant super- intendents are the same throughout its offices; and that employees are sometimes transferred from one office to another. The Company also claims that its negotiations with the Council between July 1938 and April 1939 were conducted for all the Company's offices and that at no time were there any negotiations on the basis of the unit alleged in the petition. The Council concedes that a unit consisting of all the Company's offices might under other circumstances be a more desirable one than that claimed in its petition, but claims that the employees of the Washington office should not be denied the right to bargain collec- tively merely because the Council has as yet been unable to secure authorizations from the employees in the other offices of the Com- pany authorizing it to act as their representative. We recognize the HOME BENEFICIAL ASSOCIATION OF RICHMOND, VA. 1031_ validity of this contention and find that a unit consisting of the em- ployees of the Company's Washington offices would make collective- bargaining for them immediately possible and insure to them the. full benefit of their right to self-organization and collective bargain- ing and otherwise effectuate the policies of the Act. In. its Washington offices, the Company, employs approximately 99• insurance agents,'. including, 85 debit- •.collectors and. canvassers, 12 assistant superintendents, and 2 special representatives. In view of the accord in respect to debit collectors and canvassers. we shall include them in the appropriate unit. All the parties also agreed that superintendents in the Washington offices should be ex- cluded from the bargaining unit because of their supervisory capac- ity and we shall, therefore, exclude them from the appropriate unit. Both unions desire the exclusion from the unit of the assistant superintendents. The Company desires their inclusion. Each as- sistant superintendent is in charge of a group of from six to eight. debit collectors and canvassers. Assistant superintendents inspect the accounts of employees under their supervision and make recom- mendations to the superintendents regarding the hiring and dis- charging of employees. While debit collectors and canvassers are paid on a commission basis, assistant superintendents are paid regular salaries and are awarded quarterly bonuses, the latter being depend- ent upon the production records of the employees under their super- vision. We find that the assistant superintendents are supervisory employees and we shall exclude them from the appropriate unit as, such. Both unions desire the exclusion from the appropriate unit of two, employees, W. C. Werner and J. R. Holcer, designated as special representatives. The Company contends that they should be in- cluded in the bargaining unit. Werner and Holcer have a long record of service in the Company but, because of their present ill health, are unable continuously to carry on the active work required of debit collectors, canvassers, and assistant superintendents. These two employees are salaried, and work under the instructions of the superintendent and assist the debit collectors and canvassers in im- proving their work. They have no authority to hire or discharge any employee but they do inspect the records of the debit collectors and canvassers. The Company admits that a special representative's recommendation concerning the hiring or discharging of a man would carry more weight than would that of an ordinary employee. On certain occasions in the past when the superintendent has been absent Werner has taken over his duties. Under all the circum- stances, it appears that the relationship which the special representa- tives bear to the management is more like that of superintendents or 247384-40-vol. 17--66 1032 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD assistant superintendents than like that of debit collectors and can- vassers. We shall, accordingly, exclude the special representatives from the appropriate unit. We find that the debit collectors and canvassers of, the Company in its Washington offices, excluding superintendents, assistant super- intendents, and special representatives, constitute a unit appropriate for the purposes of collective bargaining and that said unit will in- sure to employees of the Company the full benefit of their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The Council claims that it has been designated by the majority of the employees within the appropriate unit as their representative for the purposes of collective bargaining with the Company. Although, at the hearing, the Council introduced no documentary evidence to indicate the number of employees in the appropriate unit who are members of its organization, it was established that the Council had engaged in the past in a series of negotiations with the Company as representative of at least some of the insurance agents employed by the Company in the Washington offices. While the U. 0. P. W. A. representative at the hearing at first stated that the U. 0. P. W. A. claimed to represent a majority of the employees in the appropriate unit, upon further examination he re- fused to state whether or not the U. 0. P. W. A. had any members in the appropriate unit at the time of the hearing. Nor does the evidence indicate that the U. 0. P. W. A. has ever sought to bargain with the Company as a representative of any of the Company's employees. We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. Since, however, the U. 0. P. W. A. has failed to establish that any of the employees of the Company have designated it as their bargaining agent, we shall not include the name of the U. 0. P. W. A. upon the ballot in the election which we shall direct: Although, at the hearing, the Council indicated its desire that eligibility to vote in an election should be determined as of the date of the hearing, we see no reason for not determining eligibility as of a more current date. We shall therefore direct that the em- ployees of the Company eligible to vote in the election shall be those in the appropriate unit during the pay-roll period immediately pre- ceding the date of our Direction of Election herein, including em- ployees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since HOME BENEFICIAL ASSOCIATION OF RICHMOND, VA. 1033 been temporarily laid off, but excluding those who have since quit or been discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of Home Beneficial Association at its Wash- ington, District of Columbia, offices within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The debit collectors and canvassers of the Company in its Wash- ington offices, excluding superintendents, assistant superintendents, and special representatives, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the -power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article, III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election under the direction and supervision of the Regional Director for the Fifth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the debit collectors and canvassers of Home Beneficial Association, in its Washington, District of Co- lumbia, offices, who were employed by Home Beneficial Association during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation, and em- ployees who were then or have since been temporarily laid off, but excluding superintendents, assistant superintendents, special repre- sentatives, and those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Industrial and Ordinary Insurance Agents' Union, Local No. 21354, Industrial and Ordinary Insurance Agents' Council, for the purposes of collective bargaining.