Sun Life Insurance Co. of America

National Labor Relations Board - Board Decisions

Oct 2, 1939

15 N.L.R.B. 817 (N.L.R.B. 1939)

In the Matter Of WAS'IIINGTON BRANCH OF THE SUN LIFE INSURANCE
COMPANY OF AMERICA and INDUSTRIAL AND ORDINARY INSURANCE
AGENTS UNION No. 21354, INDUSTRIAL AND ORDINARY INSURANCE
AGENTS COUNCIL
Case No. R-1454.-Decided October !0, 1939
Life and Industrial Insurance Business-Jurisdiction: employer engaged in
trade, traffic, and commerce in the District of Columbia-Employees: canvassers
are ; not independent contractors-Investigation of Representatives: controversy
concerning representation of employees : employer 's refusal to grant exclusive
reccgnition to petitioning union until determination by Board of unit and repre-
sentation ; rival organizations-Unit Appropriate for Collective Bargaining:
controversy as to ; all insurance agents including debit collectors, canvassers, but
excluding assistant managers , district managers , clerical and office employees-
Election Ordered
Mr. Samuel M. Spencer, for the Board.
Mr. Jacob M. Moses and Mr. Felix Rothschild, of Baltimore, Md.,
for the Company.
Mr. Herbert S. Thatcher and Mr. George W. Russ, of Washington,
D. C., for the Council.
Mr. George Brody, of Baltimore, Md., and Boudin, Cohn cf Glick-
stein, by Mr. Sidney Elliott Cohn, for the U. O. P. W. A. and Local 27.
Mr. Emanuel Butter, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 15 and June 29, 1939, Industrial and Ordinary Insurance
Agents Union No. 21354, Industrial and Ordinary Insurance Agents
Council, herein called the Council, filed with the Regional Director
for the Fifth Region (Baltimore, Maryland) a petition and an
amended petition, respectively, alleging that a question affecting coln-
merce had arisen concerning the representation of employees of Sun
Life Insurance Company of America, Washington, D. C., herein called
the Company, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela-
15 N. L. R. B., No. 91.
817
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Act, 49 Stat. 449, herein called the Act. On June 20, 1939, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due notice.
On June 29, 1939, the Acting Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
Council, and upon United Office and Professional Workers of America,
C. 1. 0., herein called the U. O. P. W. A., a labor organization claiming
to represent employees directly affected by the investigation. On July
7, 1939, a notice of postponement of the hearing- was issued and served
upon the same parties. Pursuant thereto a hearing was held on July 31
and August 1, 1939, before Albert L. Lohm, the Trial Examiner duly
designated by the Board. The Board, the Company, and the Council,
were represented by counsel; the U. O. P. W. A., by its duly authorized
representative. All participated 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 opening of the hearing, counsel for the Company moved to
dismiss the amended petition on the grounds that the Act is not
applicable to the Company or to its employees in the District of
Columbia, and that the business of selling life insurance in the
District of Columbia is iaot commerce and does not affect commerce,
within the meaning of Section 2 (6) and (7) of the Act. The Trial
Examiner denied the motion. At the termination of the hearing the
motion to dismiss was renewed and a motion to strike out all the
testimony presented at the hearing was made by counsel for the
Company. The Trial Examiner denied these motions. During the
course of the hearing the Trial Examiner made several other rulings
on 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 August 15, 1939, United Office and Professional Workers of
America, Local 27, herein called Local 27, filed with the Board a
motion to intervene, requesting that it be made a party to all further
proceedings. The motion was granted by the Board on August 25;
1939.
Pursuant to leave granted, the Company, on August 16, 1939, filed
a brief. Pursuant to request therefor by the Council and the Com-
pany and notice to all parties, a hearing was had before the Board
at Washington, D. C., on August 29, 1939, for the purpose of oral
argument. The Company, the Council, the U. O. P. W. A., and Local
i
WASHINGTON BRANCH, SUN LIFE INSURANCE COMPANY 819'
27 were represented by counsel and participated in the argument..
At the hearing, the Board granted leave to the parties to file, within
3 days, a stipulation covering the investment portfolio of the Com-
pany. Pursuant to such leave, a stipulation was filed and on Sep-
tember 8, 1939, the. Board ordered it made a part of the record herein.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Sun Life Insurance Company of America is a Maryland corpora-
tion with its main office in Baltimore, Maryland, and branch offices.
in Philadelphia, Pennsylvania; Cleveland, Ohio; Chicago, Illinois;
and Washington, District of Columbia. It is with the employees of
the Washington office that this proceeding is concerned. The Com-
pany is engaged in the sale of industrial and ordinary life insurance.
In 1938 the Company had outstanding approximately 20,000 life-
insurance policies which were serviced by the Washington office. In
that year the premiums on these policies aggregated approximately
$247,398.00. The Company has outstanding approximately A of
1 per cent of all the life insurance outstanding in the United States
and approximately 1/3 of 1 per cent of all the industrial life insurance
outstanding in the District of Columbia.
The assets. of the Company, consisting of cash in bank, real estate,.
mortgages, ground rents, bonds, stocks, and policy loans, amount to-
approximately $19,000,000.00. Of this, over $7,000,000.00 is invested
in ground rents and mortgages in the States of Maryland, Ohio,.
Pennsylvania, New Jersey, New York, Massachusetts, and in the
District of Columbia. The Company owns real estate in the States-
of Maryland, New Jersey, and Ohio, and has investments in govern-
ment securities and in industrial, railroad, and utility bonds in the
States of the United States.
At the Washington office the Company employs approximately 60'
employees. The average weekly pay roll of the Company for the-
Washington office is $2,000.00.
We find that the Company is engaged in trade, traffic, and com--
merce in the District of Columbia.
II. THE ORGANIZATIONS INVOLVED
Industrial and Ordinary Insurance Agents Union No. 21354, In-
dustrial and Ordinary Insurance Agents Council, is a labor organ-
ization affiliated with the American Federation of Labor, admitting
to its membership all insurance agents of the Company at its Wash--
ington, D. C., office, including debit collectors, canvassers, and as--
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sistant managers , and excluding district managers and office and
clerical employees.
United Office and Professional Workers of America, C. I. 0., is
a labor organization affiliated with the Congress of Industrial Or-
ganizations, admitting to its membership the employees of the Com-
pany. Local 27 is a labor organization chartered by the U. O. P.
W. A. admitting to its membership the Company's insurance agents
employed in Washington, D. C.
III. THE QUESTION CONCERNING REPRESENTATION
During April and May 1939, several meetings were held between
the Council and the Company at which the Council claimed that it
represented a majority of the Company's employees in an appro-
priate unit and requested the Company to bargain with it as the
-exclusive representative of its employees. The Company and the
Council could come to no agreement with respect to an appropriate
bargaining unit and the Company was unwilling to recognize the
Council as the exclusive collective, bargaining representative of its
employees, until a determination had been made by the Board with
respect to the appropriate bargaining unit and the representation
.of the employees therein.
On May 16, 1939, the U. O. P. W. A. entered into a contract with
the Company, covering the insurance agents employed by the Com-
pany in its Philadelphia office. The contract, in part, provides that
it will become effective as to other offices of the Company wherever
the U. O. P. W. A. represents a majority of the insurance agents.
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 operatibns 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
In its Washington office, the Company employs approximately 60
employees, including 30 debit collectors , from 16 to 20 canvassers,
and 9 assistant managers . The Council contends that the appropriate
unit consists of all the debit collectors , canvassers , and assistant
managers _ at the Washington office, exclusive of district managers
i
WASHINGTON BRANCH, SUN LIFE INSURANCE COMPANY 821
and office and clerical workers. The Company and the U. 0. P. W. A.
contend that the debit collectors alone constitute an appropriate unit.
In view of the accord in respect to debit collectors we shall include
them in the appropriate unit.
Canvassers, who the Company claims are independent contractors,
are engaged in soliciting business prospects and selling industrial
and ordinary life insurance within territories assigned to them by
the district managers. They are paid on a commission basis, except
that a successful canvasser, in the discretion of a district manager,
may be allowed a $2'per day "advance" which is kept by him even
when his commissions do not equal such advance. Policies of indus-
trial insurance sold by the canvassers are transferred to debit collec-
tors for purposes of collecting the premiums and servicing the poli-
cies. Canvassers have not the responsibility that debit collectors
have with respect to preventing lapses of policies and servicing them
generally.
The Company, in support of its claim, showed that canvassers are
not listed on its pay roll and are not under bond as are the debit
collectors. There also appears to be a large turn-over of canvassers
but the extent thereof was not shown. While debit collectors are
referred to, in the contracts under which they work, as employees, this
is not true as to the canvassers.
Canvassers receive their pay by means of vouchers sent to the Com-
pany's home office by assistant managers and district managers. Can-
vassers do no work for other insurance companies and devote their
entire time to solicitation and sale of the Company's insurance policies
and to building the Company's business. They are required to report
to the Company's office four or five mornings a week, and they keep
records and accounts of all their transactions in the manner and form
prescribed by the Company. Canvassers in the Company's employ for
1 year or more receive an annual vacation of 1 week with pay. Those
who receive the $2 per day advance are permitted to join the Com-
pany's pension plan; the others, however, are not.
It thus appears that the canvassers bear all the indicia of Company
employees. While the work which they perform differs from that
of the debit collectors and does not entail the responsibilities of the
debit collectors and while the contracts under which they work do
not refer to them as employees, their work is a functional part of.
the business of the Company and they are subject in a large measure
to the control and right of control of the Company as to manner and
mode of execution. The relationship between the Company and the
canvassers is that of employer-employee.'
I See Matter of Seattle Post-Intelligencer Department of Hearst Publications , Inc. and
Seattle Newspaper Guild, Local No. 82, 9 N. L. R. B. 1262.
199549-39-vol. 15--53
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the Company's canvassers are employees within the
meaning of Section 2 (3) of the Act.
Under all the circumstances, we find that the canvassers should be
included in the bargaining unit.
At the Washington office, there are nine assistant managers, each
being in charge of approximately six debit collectors or six can-
vassers. The assistant managers are paid on a salary plus commis-
sion basis, the latter being dependent in part upon their own efforts
and in part upon the efforts of the employees under their supervision.
It is their duty to supervise the employees working under them and
to make comments regarding the employees' work. They also recom=
mend to the Company the retention or dismissal of employees hired for
a trial period. While assistant managers do not have the right to
hire and discharge employees, they do recommend to the district man-
ager such action. Assistant managers are regarded as executives by
the employees who work under them.
Although the Council admits the assistant managers to membership
and desires their inclusion in the unit, the U. 0. P. W. A. desires their
exclusion on the ground that their duties are clearly of a supervisory
nature. With the latter view, the Company agrees. We will adhere
to our usual practice of excluding such employees, where one of the
participating labor organizations desires such exclusion.2
We find that all the insurance agents of the Company in its Wash-
ington office, including debit collectors and canvassers but excluding
assistant managers , district managers, and clerical and office em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining and that said unit will insure to employees of the Com-
pany the full benefit of their right to self-organization and collective
bargaining and otherwise effectuate the policies of the Act.
VI. TIIE DETERMINATION OF REPRESENTATIVES
The Council claims that it has been designated by a majority of
the employees within the appropriate unit as their representative for
the purposes of collective, bargaining with the Company. At the
hearing, the Council introduced documentary evidence to support its
claim.
As stated above, on May 16, 1939, the U. 0.. P. W. A. entered into
a contract with the Company, covering the insurance agents em-
ployed by the Company in Philadelphia. The contract, in part, pro-
vides that it will be extended to other offices of the Company where
2 See Matter of Consumers Power Company and International Brotherhood of Electrical
Workers, Local 876, 9 N. L . R. B. 742; Matter of International Nickel Company, Inc. and
Square Deal Lodge No. 40 , Amalgamated Association of Iron, Steel and Tin Workers of
North America, through Steel Workers Organizing Committee , 11 N. L. R. B. 97.
WASHINGTON BRANCH, SUN LIFE INSURANCE COMPANY $23
the U. O. P. W. A. represents a majority. The U. O. P. W. A.
claims that since it obtained the contract it has been organizing all
insurance agents of the Company, including the employees of the
Washington office. We find that the question concerning representa-
tion which has arisen can best be resolved by an election by, secret
ballot.
Although both the Council and the U. O. P. W. A. agreed that
eligibility to vote in such an election should be determined as of
July 1 and 29, 1939, 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
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 repre-
sentation of employees of Sun Life Insurance Company of America
at its Washington, District of Columbia, office, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
2. The canvassers employed by the Company are employees, with-
in the meaning of Section 2 (3) of the Act.
3. All the insurance agents of the Company in its Washington
office, including debit collectors and canvassers but excluding assist-
ant managers, district managers, and clerical and office employees,
constitute a unit appropriate for the purposes of collective bargain-
ing, 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 purposes of collective bargaining with
Sun Life Insurance Company of America, Washington , District
of Columbia , an election by secret ballot shall be conducted within
fifteen ( 15) days from the date of this Direction under the
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
direction and supervision. of the Regional Director for the Fifth
Region, acting in this matter as agent for the National Labor Rela-
tions Board and subject to Article III, Section 9, of said Rules and
Regulations, among the insurance agents of Sun Life Insurance Com-
pany of America, in its Washington, District of Columbia, office, in
its employ during the pay-roll period immediately preceding the
date of this Direction of. Election, including debit collectors and
canvassers, employees who did not work during such pay-roll period
because they were ill or on vacation, and employees who were then
or have since been temporarily laid off, but excluding assistant man-
agers, district managers, and clerical and office employees, and those
who have since quit or been discharged for cause, to determine
whether they desire to be represented by Industrial and Ordinary
Insurance Agents Union No. 21354, Industrial and Ordinary Insur-
ance Agents Council, or United Office and Professional Workers of
America, C. I. 0., for the purposes of collective bargaining, or by
neither.
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
October 13, 1939
On October 2, 1939, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in the
above-entitled proceeding, the election to be held within fifteen (15)
days from the date of the Direction under the direction and super-
vision of the Regional Director for the Fifth Region (Baltimore,
Maryland). The Regional Director having requested an extension of
time within which to hold the election and having advised the Board
that all parties to the proceeding have agreed thereto, the Board
hereby amends the Direction of Election issued on October 2, 1939,
by striking therefrom the words "within fifteen (15) days from the
date of this Direction" and substituting therefor the words "within
twenty-five (25) days from the date of this Direction."
15 N. L. R. B., No. 91a.