The Prudential Insurance Co. of America

National Labor Relations Board - Board Decisions

Jun 30, 1944

56 N.L.R.B. 1847 (N.L.R.B. 1944)

In the Matter of THE PRUDENTIAL INSURANCE COMPANY OF AMERICA 1
and AMERICAN FEDERATION OF INDUSTRIAL AND ORDINARY INSURANCE
AGENTS' UNION #23039, AFL
Case No. 8-C -151 i .-Decided Jwne 30, 1944
DECISION
AND
ORDER
On March 21, 1944, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
,annexed hereto. Thereafter the respondent filed exceptions to the
Intermediate Report and a brief in support. of its exceptions. The
Board has considered the rulings made by the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. .
Upon request of the respondent and United Office and Professional
W Vorkers• of America, CIO,2 and pursuant to notice, a hearing was
held before the Board in Washington, D. C., on May • 11, 1944, for
the purposes, of oral argument. The respondent, the Union, and
International Union of Life Insurance Agents were represented and
participated in the hearing.-'
- The Board has considered the Intermediate Report, the exceptions
and brief filed by the respondent, and the entire record in the case,
I Incoriectly described in the vomplamt as Prudential Insurance Company of America
2.At the hearing before the Trial Examiner , the CIO sought pet mission to intervene in
the pioceeding on the ground that it represented the respondent 's agents throughout the
United States in all but it very few areas, including the State of Ohio , in its motion the
CIO alleged that a unit less than State -wide in scope is inappropriate ; that the CIO wishes
to file a petition for a State -wide unit ; and that " pendency of these proceedings will
probably be regarded by the Board as a bar to the filing of a State -wide petition" The
Trial Examiner denied the CIO 's motion to intervene, and the CIO thereupon appealed this,
ruling to the Board . The CIO was thereafter granted leave to present oral argument on
its motion to intervene but failed to appear at the oral argument The T'iial Examiner's
denial of the CIO's notion to intervene-is hereby affirmed
'Following the issuance of the Intermediate Repoit and again at the oral aigument, the
respondent moved that the Board consolidate the bhrgaining .emits -which had previously
been found' to be appropriate in Cases Nos R-52:6 to R-5264, and R-4420. The motions,
being tantamount to a request for dismissal of the complaint , are hereby denied for the
reasons hereinafter indicated.
56 \`. L ,R B., No.-325.
1847
1848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and hereby adopts the findings , conclusions , and recommendations of
the Trial Examiner , with the following additions and exceptions.
1. In his Intermediate Report the Trial Examiner found that the
-respondent had offered no evidence of any substantial change in the
circumstances surrounding the representation of its industrial agents
since the hearing in the' prior representation proceeding. On the
contrary , the record reveals that the respondent made several offers
of, proof by which it sought to show that there had been what it
contends was a substantial change in the extent of self-organization'
among the respondent 's agents throughout the State of Ohio after
the hearing in the representation proceeding , and that the Trial
Examiner rejected such offers of proof . A unit finding based upon
the limited extent'of union organization must rest upon facts as they
exist at a particular time; however , it also takes info account the
fact that organization may continue , and that, at a later date , a larger
or more inclusive unit , may be appropriate . The' purpo se' `of the
Board's determination establishing the smaller unit as appropriate
is to make collective bargaining an immediate ' possibility for those
employees who have indicated a desire-for it.' That purpose would
not be served if the Board's unit determination could be ignored by
reason of changes of - circumstances - postdating , the establishment of
the appropriate unit. Thus changes in exteiit of organization occu'r '
-ring after' a representation proceeding 'cannot justify an employer's
subsequent refusal to bargain with the statutory representative certi-
fied as such for the established bargaining unit. Such evidence being
immaterial , we affirm the rulings of the Trial Examiner excluding
evidence of changes in the extent of union organization occurring
after the hearing in the representation proceeding.
-2. The Trial Examiner also rejected various offers'of proof 'by
which the respondent sought to present evidence of organizational
activity and actual organization alleged to have occurred prior to
the hearing in the representation proceeding herein but which was
not introduced in that proceeding . In view , of the failure , of the
respondent to present any substantial reason for its failure to present
such evidence at the hearing ' in the representation proceeding, we ,
affirm the ruling of the Trial Examiner in this regard . Moreover,
even if , we accepted these offers of proof, , the evidence offered, since
it reveals actual organization limited in scope, would in no way
alter our conclusions ., • ^`" -
Orderly and stable labor relations require that "the employer * *
accord to a certified agent recognition as the proper bargaining agent
until „ the certification is rescinded or succeeded by another ." 4 This
is equally true when the Board 's unit finding is based upon the limited
4 Valley Mould & Iron Corp. v. N. L R B, 116 F. (2d) 760, 765, enf'g 20 N L. R B. 211.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA 1849
extent of, employee self-organization as when it is based upon, other
factors.s We do not by our decision in this case foreclose the, re:
spondent from again raising the unit issue by appropriate means
after the lapse of a reasonable period of time, in any event, not less
than a year from the date of the resp ndent's compliance with our-
Decision and Order'herein. At such im we will, upon appropriate
proceedings, consider the unit issue de novo and determine whether
or not to alter the existing collective bargaining units."
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
-Board hereby orders that the respondent, The Prudential Insurance
Company of America,. Newark, New Jersey, and its officers, agents,
successors, and.assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with American Federation of
Industrial and Ordinary Insurance Agents' Union Local #23039,
Toledo, Ohio, AFL, as the exclusive representative of all its licensed
industrial agents employed in its district offices located in Toledo, Ohio,
including its subdistrict office in Bryan, Ohio, but excluding superin-
tendents, assistant superintendents, clerks, and cashiers, in respect to
rates of pay, wages, hours of employment, and other conditions of
.employment ;
(b) Engaging in any like or related acts interfering with, restrain-
ing, or coercing its employees in the exercise of the rights to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection as guaranteed 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 collectively with American Federa-
tion of Industrial and Ordinary Insurance Agents' Union #23039;
Toledo, Ohio, AFL, as the exclusive representative of all its licensed
industrial agents employed in its district offices located in Toledo, Ohio;
including its subdistrict office in Bryan, Ohio, but excluding superin-
5 The limited extent of self-organization of employees has -long been considered by the
Board to be a relevant factor in determining the appropriate, bargaining unit, and our
position in this regard has recently been specifically approved by the Supreme Court.
N. L R B. v Hearst Publicataon8, Inc., et al., 322 U S 111
In our decision in the representation proceeding we stated that our finding that the
smaller unit was appropriate did not preclude a later finding that a larger unit would
be appropriate
0
1
1850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tendents, assistant superintendents, clerks, and cashiers, in respect to
rates of pay, wages, hours of employment, and other conditions of
employment ;
(b) Post immediately in conspicuous places in its offices in Toledo,
Ohio, and Bryan, Ohio, andenmylntain for a period of at least sixty (60)
consecutive days from the d tie bf posting, notices to its employees sta,t
ing that the respondent will not engage in'the conduct from which it is
ordered to' cease and desist in paragraphs 1 (a) and (b) of this Order,
and that the respondent will take the affirmative action set forth in
paragraph 2 (a) hereof;
(c) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order what steps the,
respondent has taken to comply herewith.
INTERMEDIATE REPORT
Russell Packard, Esq., of Cleveland, Ohio, for the Board
George L Russ, Washington, D C., for the Union
Milo J Warner, Esq., of Doyle, Lewis avid Wai i,ei, 1631 Nicholas Bldg., Toledo,
Ohio, and Joseph, T. Ferris, Esq., of Newark, N. J. for^the respondent.
John W. Mulligan, vice president, Local 132,,UOPWA of Cleveland, Ohio, for
the United Office and Professional Workers of America, CIO.
STATEMENT OF THE CASE
Upon a change filed June 5. 1943, by the American Federation of Industrial
and Ordinary Insurance Agents' Union #23039, AFL, herein called the Union,
the National Labor Relations Board, herein called the Board, by its Regional
Director for the Eighth Region, (Cleveland, Ohio), issued its complaint dated
February 18, 1944, against the Prudential Life Insurance Company of America,
herein called the respondent, alleging that the respondent has engaged in and is
engaging in unfair labor iiiactices'affecting commerce within the meaning of
Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat 449, herein called the Act. Copies of the complaint and charge
accompanied by notice of hearing thereon were duly served upon the respondent
and the Union. In addition, a copy of the complaint and charge accompanied
by notice of. hearing thereon was served upon Intei national Union of Life
Insurance Agents at its office in Milwaukee, Wisconsin.'
With respect to unfair labor practices, the complaint alleges that on December
26, 1942, in a Decision and Direction of Election issued in the Matter of The
Prudential Insurance Company of America-Branch Offices, Toledo, Ohio, and
American Federation of Industrial and Ordinary' Insurance Agents' Union
#23039, Toledo, Ohio (AF of L), Case No. R-4420, the Board found that all
licensed industrial agents of respondent employed in its district offices located
in the City of Toledo, Ohio, including the sub-district' office at Bryan, Ohio, but
excluding the superintendent, assistant superintendent, clerks, and cashiers,
constitute a unit appropriate for purposes of collective bargaining within the
meaning of Section 9 (b) of the Act; thatvon February 5, 1943, in the same case,
1 International Union of Life Insurance Agents did not enter an appearance in tine
matt^r nor take any part in the pioceedings
2 For purposes of identification, this will be refei red to as the Toledo unit
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA 1851
the Board issued its certification of representatives, certifying the Union as the
exclusive representative of all employees in said unit for purposes of collective
bargaining and that, at all times since that date, the Union has been and is now
the exclusive representative of all employees in said unit for the purposes of
collective bargaining with respect to rates of pay, wages, hours of employment
and other conditions of employment. [The complaint further alleges that on or
about April 20, 1943, and at all times thereafter, while the respondent was en-
gaged in the operation of its business at Toledo, Ohio, the Union requested the
tespondemt to bargain collectively with it, in respect to wages, rates of pay, hours
of employment and other conditions of employment, as the exclusive representa-
tive of all' employees in the said unit, and that the respondent failed and refused
and continues to fail and refuse to so bargain collectively with the Union or nego-
tiate with it as such exclusive representative of all the employees in the unit,
and by so refusing has interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them in Section 7 of the Act, thereby en-
gaging in unfair labor practices within the meaning of Section 8 (1) and (5) of
the Act.
The respondent filed its answer in due course, and just prior to the opening
of the hearing filed all amended answer in which it admits the allegations of the
complaint pertauiing to the corporate existence of and the extent and character of
the business carried on by the respondent, with the exception of one recital per-
taining to the number of licensed industrial agents employed at the Toledo office.
In this regard the respondent alleges that instead of employing 160 such agents
in its district offices at Toledo and its attached office at Bryan, Ohio, it actually
employs only 108 such agents. The answer denies that the respondent is engaged
in commerce within the meaning of the Act but admits that the Union is a labor or-
ganization within the meaning of the Act, and further admits that the Board,
in its Decision and Direction of Election referred to, did in fact find that the
unit thetein described constitutes a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act, but denies that such
unit was then or is now appropriate for the purposes-of collective bargaining
within the meaning of Section 9 (b) of the Act. It admits that, after the re-
quest from the Union that the respondent bargain with it in respect to rates of
pay, wages, hours of employment and other conditions of employment, the re-
spondent refused to so bargain with the Union and continues to, so refuse, for the
reason that at the time the demand was made by the Union, there was pending
before the Board another proceeding involving the representation of all the re-
spondent's industrial agents in the State of Ohio, including those in the Toledo
unit, as an appropriate unit for purposes of collective bargaining The answer
affirmatively alleges that the Board's finding that the unit consisting of the agents
of the respondent in Toledo and Bryan offices is an appropriate unit, was arbitrary
and capricious and not based upon substantial evidence; that at the time the
petition upon which the deternunaton of the Toledo unit was based, was filed with
the Board, organization of the industrial insurance agents of the respondent had
extended throughout the State of Ohio; that the decision of the Board in Case No.
9-4420 was a temporary finding only, to be effective only until such time as or-
ganization of the agents of the respondent in the State of Ohio had extended
throughout that State; and that when the Board, on June 17, 1943, in Consolidated
Cases R-5256 to R-5264, inclusive,' found that organization of the industrial
agents of the respondent had extended throughout the.State of Ohio, the exclusion
by the Board of the Toledo unit from the otherwise state-wide unit found in the
i
Hereinafter referred to as the Consolidated Cases
1852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consolidated Cases to be appropriate for purposes of collective bargaining, was ar-
bitrary and capricious and in derogation of the Act' The respondent further al-
leges that it has never bargained collectively with any representative of its in-'
dustrial agents in a city-wide unit or in a unit less than a state-wide unit and that
it is and always has been ready and willing-to bargain collectively with any'
representative that may be designated by its industrial agents in the entire State'
of Ohio. ' 0 ' 1
- Pursuant to due notice, a hearing was held on March 6, 1944, at Cleveland,-
Ohio, before It. N Denham, the undersigned Trial Examiner duly designated by
the Chief Trial Examiner. The Board and the respondent were represented by
counsel and the Union by its president. The United -Office' and' Professional
Workers of America, affiliated with the Congress of Industrial Organizations,
appeared and filed a motion for leave to intervene, alleging an interest in the
issues involved in this case by virtue of an interest in the representation of the
industrial agents of the respondent throughoiit the State of Ohio. The motion
was taken under advisement to be ruled upon after the character of the evidence
relied upon by the respondent in support of its admitted refusal to bargain with
the Union had been disclosed, with permission to, the representative of the'
intervenor to remain and participate pending the final ruling on the motion.
After all evidence had been offered and there being no evidence of any interest'
on the part of the United Office and Professional Workers of America in 'this
controversy, the motion for leave to intervene was denied. All parties par-
ticipated in the hearing and were afforded full opportunity to examine and cross-
examine. Witnesses and to introduce evidence bearing upon the issues. At the
close of the taking of all testimony, counsel for the Board moved to conform
all pleadings to the proof with'respect•to correction of names, dates and other
minor matters not affecting the issues involved. The motion was granted with-
out objection. The respondent, then, for the record, offered a motion that the
Board modify its order "heretofore made in this case" so as to include all the
industrial agents of the respondent in Toledo in a state-wide unit. No disposi-
tion was or is made of this motion which was noted on the record for record
purposes only, at the insistence of counsel for' the respondent, in view of the
obvious lack of jurisdiction of the Trial Examiner to either deal with or dispose
of it. 'At the close of the hearing oral argument was waived, as was the privilege
of filing briefs with the Trial Examiner.
Upon the basis of the foregoing and after having heard and observed all the
witnesses and considered the exhibits admitted in evidence , and upon the entire'
record made herein, the undersigned now makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Prudential Insurance Company of America is a mutual life insurance
corporation organized under and existing by virtue of the laws of the State of'
l'ew Jersey with its home office and principal place of business at Newark, New
Jersey, where it is engaged in the business of insuring the lives of its policy
holders on a participating plan, investing the proceed's of such business in the
various operations incident thereto.
4 Oh March 2, 1944, the respondent filed and duly served on all the parties, a motiona
for the consolidation of the instant case with Case No. 8-C-1602, which involves a'charge
of refusal to bargain with the Union certified by the Board in the Consolidated Cases.
The motion was duly referred to the Board. On March 6 , 1944, the Board denied the
motion.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA 1853
Respondent is licensed to conduct its insurance business in the 48 States, in-
cluding the State of Ohio, as well as the District of Columbia; the Territory of
Hawaii, and 9 Provinces of the Dominion of Canada. In the course and conduct
of its business respondent operates 3 district offices at Toledo, Ohio, and a-sub-
district office at Bryan, Ohio, where approximately 108 industrial agents are
employed.
On December 31, 1941, respondent was the second largest life insurance com-
pany in the United States in terms of assets and value of insurance in force. On
that date, respoiident's, assets, totaled $4,556,085,244.84 and it had 31,960,256
policies having a total face value of $19,549,175,369 in force among some 20,000,000
policy holders situated throughout the United States, Canada, and Hawaii.
The respondent's assets consist of cash, bonds, stocks, mortgages, real estate
and notes. The greater portion of the cash is deposited in commercial banks
and trust companies throughout the several States of the United States. As of
December 31, 1941, such assets amounted to $120,792,001. The securities owned
by respondent comprise holdings in issues of the Governments of the United
States and Canada and various political subdivisions thereof, and public utili-
ties, transportation, industrial and manufacturing enterprises situated through-
out the United States. On December 31, 1941, respondent owned real estate
valued at $152,806,443 and held loans secured by real estate located in 47 States
and *the Dominion of Canada. Respondent manages its real estate through 230
managing agents and 255 local farm supervisors in 39 States of the United States,
the District of Columbia, and 6 Canadian Provinces. Respondent also has 8
loan correspondents, 26 branch offices and 443 authorized brokers in 47 States,
the District of Columbia, and Canada.
During the calendar year 1941 respondent purchased equipment having a
value of $445,146. During the same period the respondent, purchased paper and
other stationery supplies having a value of $673,452. In the same period respond-
ent spent $1,329,502 for postage, telephone, telegraph and express services and
$711,259 for traveling expenses.
. In connection with its business respondent owns and operates a printing plant
at Newark, New Jersey. During the calendar year 1941 respondent printed mate-
rial having a value of $1,370,849, of which amount 37 percent by value was used
in other States than New Jersey and 0 5 percent was used in Canada.'
The Board has heretofore given full consideration to the general character
and extent of business ordinarily transacted by insurance companies throughout
the United States, particularly in its decision with reference to the John Hancock
Mutual Insuirance Company.' In'view of the observations of the Board in that
case, it is not deemed necessary at this point to dwell further on the general char-
acter of insurance companies, of which the respondent herein is the second largest
in the United States. ' It is found that the respondent is, engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
American Federation of Industrial and Ordinary Insurance Agents' Union
#23039, AFL is a labor organization admitting, to membership, the employees of
the respondent who are engaged as industrial insurance agents.
s The foregoing findings are taken from the allegations of the complaint which the
respondent, in its amended answer admits are true.
126 N L R B 1024-1029.
O
587784-45-vol. 56-118
1854 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE ALLEGED UNFAIR LABOR PRACTICES
In Case No' R-4420 the Board, on December 26, 1942, issued its Decision and
Direction of Election in the matter of The Prudential Insurance Company of
America-branch offices, Toledo, Ohio, 'and American Federation of Industrial
and Ordinary Insurance Agents' Union No. 23039, Toledo, Ohio (AFL),' in which
it found that : °
all licensed industrial agents of the Company (the respondent) employed
in its district offices located in the city of Toledo, Ohio, including the
subdistrict office in Bryan, Ohio, but excluding superintendents, assistant
superintendents, clerks, and cashiers, constitute•a unit appropriate for the
purposes of collective bargaining within the meaning, of Section, 9 (b)
of the Act.
and directed that an election by secret ballot be held among the employees, within
such unit "to determine whether or not they desire to be represented by American
Federation of Industrial and Ordinary Insurance Agents' Union No 23039,•Toledo,
Ohio (A F. of L.), for the purposes of collective bargaining" I
• Pursuant to the foregoing Decision and Direction of Election, an election was
duly held by the Regional Director of the Eighth Region, as a result of which,
the Board, on February 5, 1943, issued its certificate, certifying the American
Federation of Industrial and Ordinary. Insurance Agents' Union, #23039, Toledo,
Ohio (A. F. of L ), as the exclusive representative for the purposes of collective
bargaining, of all the employees of the respondent within the above described
unit. At the hearing upon which the Decision and Direction of Election of
December 26, 1942, was based, the respondent appeared and objected to the unit
above described, contending, that the only appropriate unit should be made up
of 'all its licensed industrial agents employed in the State of Ohio. Extended
testimony was taken on the subject, except that the respondent (lid not at that
time, present to the Board any evidence as to the extent of organizational efforts
and solicitation which had been made by the Union within the State of Ohio.
The decision, however, reflects that the character and extent of successful organi-
zation by the Union within the state of Ohio was before the Board and was
considered by it in arriving at its findings.
On April 20, 1943, George L. Russ, on behalf of the Union, wrote to the Presi-
dent of the respondent requesting a conference between the officials of the
iespondent and the Union to negotiate a contract for the employees within the
unit above referred to, with respect to rates of pay, wages, working conditions
and other conditions of employment On April 30, 1943, the respondent replied,
calling attention to the fact that there was then pending before the Board the
question of-a State-wide unit arising out of a petition filed by the United Office
and Professional Workers of America, and quoting the following language from
the Board's Decision and Direction of Election in case No 'R-4420:
Our finding does not pi eclude a later finding that a state -wide or larger
unit is appropriate for collective barg a ining purposes.
suggested that bargaining negotiations be deferred until the Board had decided
"this subsequent issue " Russ referred the respondent ' s suggestion to the Local,
by whom it was rejected and the demand for bargaining was renewed Again the
respondent refused On Jung 5 , 1943, the Union filed its charge against the
respondent in the office of the Eighth Region On June 17 , 1943, the Board issued
7 46 N L R B 430
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA 1855
its Decision and Direction of Election in the Consolidated Cases 8 in which it
made, inter alia, the following observations and findings:
* * * From the aforesaid facts it is clear that the time is ripe for the
establishment of a State-wide unit in Ohio. However, inasmuch as we
have so recently certified the AFL in the Toledo unit, we shall exclude it from
the appropriate unit in the instant proceedings.'
We find that all industrial agents of the Company licensed and working
in the State of Ohio, excluding, however, those agents attached to the three
District offices in Toledo and detached office at Bryan, Ohio, and excluding
superintendents, assistant superintendents, office clerks, and cashiers, con-
stitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act
After an election in which International Union of Life Insurance Agents was
successful, motions were filed with the Board by International Union of Life
Insurance Agents and by the respondent, to amend its former order by including
the Toledo unit in the State-wide unit The contention of the respondent for a
State-wide unit was fully presented to the Board by oral argument and on
November 19,,1943, the Board, in a Supplemental Decision in the Consolidated
Cases, declined to set aside the certification of the Union, issued in the Toledo
case - -
On December 7, 1943, the Union again demanded of the respondent that it
bargain collectively with it as the representative-of the employees in the Toledo
unit. On December 13, 1943, the respondent replied as follows :
As you know, the Company has consistently maintained that anything
less than a state-wide unit is inappropriate. You also know that the Com-
pany has never declined to enter into negotiations on a state-wide unit basis
with chosen representatives of-a majority of our agents We consider this
unit question of such importance that we must decline to enter into negotia-
tions with representatives of our Toledo and Bryan agents until it is
finally determined
For your information we have, for the same reasons, declined to enter
into negotiations with International Union of Life Insurance Agents as the
representative of our agents in Ohio, excluding those in the three Toledo
district offices and the detached office in Bryan
The respondent offers no evidence of any substantial change in the circum-
stances surrounding the representation of its industrial agents in the State of
Ohio or in any district or part thereof, since the first, consideration of such
representation by the Board' in 1942, its sole contention being that, prior to the
hearing in Case No 4420 (The Toledo case), the Union had engaged in solici-
tation among the respondent's agents in localities other than Toledo, Akron and
Canton, in which it had succeeded in establishing itself, that such fact was not
brought to the attention of,the Board, and that the respondent had refrained
from investigating such solicitations prior to the representation hearings, for
fear of being charged with unfair labor practices and therefore had been unable
to fully present the facts to the Board prior to this hearing.
8 50 N L R B 689.
6 At this point, the decision reflects an. appended footnote as follows : "If -the AFL
desires to-waive its rights under the cei tification it may by timely motion filed with the
Board request the incorporation of the Toledo unit into the State-wide unit herein estab-
lished " The AFL has not, however, waived any of its rights referred to.
1856 DECISIONS OF NATIONAL LABOR,RELATIONS BOARD
The respondent 'embodied the results of its investigation concerning the extent
of solicitation in Ohio by the A. F. of L. prior to the 1942 hearing in Case No.
4420, in comprehensive offers of proof accompanied by copies of publications
by the. Union, solicitation letters, and pa$Iphlets and notices, but made no
offer of proof of actual organization other than in, Toledo, Akron and Canton.
The offers, made in connection with the testimony of Sylvester C. Smith,
associate general solicitor and Harold M. Stewart, vice president, were rejected
by,the undersigned-as covering facts not material or relevant to the issue here
involved.
Aside from not feeling at- liberty to investigate the' organizational activities
of A. F., of L. prior to 'the hearing in the Toledo case and later in the Con-
solidated Cases, the respondent makes no claim that it has not, in those cases;
been given full opportunity to present its contention for the State-wide unit
and it now makes no claim that conditions have changed. It ,merely reiterates
the contention that, for the conduct 'of its business, it regards a State-wide
unit as essential for successful collective bargaining with its agents, and that
anything less than State-wide units, where agents, all licensed by the, same
State, may be represented by different organizations, would tend to disrupt its
labor relations ; and that therefore the Board was, in error in the first instance
in fixing the appropriate unit as it did in this case. This is,theisole and 'only
reason advanced,by the respondent for its refusal to bargain with the Union
The situation presented here admits of little argument. The Board has exer-
cised the judgment and discretion required of it by the Act in determining the
appropriateness of the unit. The respondent has alleged that, in so doing, its
action was arbitrary and capricious, but it fails to produce any relevant or
material evidence in support of such allegation. The record amply reflects
that unusually full and deliberate consideration was given by the Board to
all the facts available, which might have a bearing on the appropriateness of
the unit. The respondent has produced no new or different facts The most it
has shown is that, it disagrees with the Board's conclusion and believes it would
be hampered in the conduct of its business if any unit should be le'ss' than
State-wide Because it disagrees, it refuses to comply with the provisions of
the Act and bargain with the certified Union That is no excuse. ' It has had
its point of view considered by the Board in December, 1942, and rejected.
In November 1943, the Board again heard and considered its contention and
again rejected it. In such circumstances, it cannot now be heard to say that
the Board failed to weigh the question, or that it was deprived of any right
to a full hearing in the 'case, out of which this certification arose. It is there-
fore found that, the respondent on April 30, 1943, after due request by, the'
Union as the certified exclusive representative of all the employees within the
appropriate unit above described, refused' to bargain with the Union as such,
exclusive representative, and at all times since that date has continued' to
refuse to so bargain with the Union, and has thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed to them in
Section 7 of the Act. , -
IV. THE EFFECT OF THE UNFAIR-LABOR PRACTICES UPON COMMERCE
The activities of-the respondent set forth in Section III above, which have
been found to have interfered with, restrained, and coerced its employees in the
exer'cise' of the rights guaranteed' them in Section 7 of the Act, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade,' traffic and commerce
THE PRUDIJNTIAL INSURANCE COMPANY OF AMERICA 1857
'among the several States and tend to lead to labor disputes burdening and,
obstructing commerce and the free flow thereof.
V. THE REMEDY
It having been , found that the respondent has engaged in certain unfair labor
practices , it will be, recommended that it cease and desist therefrom and. take
affirmative action which will effectuate the policies of the Act;
On the basis of the foregoing findings of fact and upon, the entire record in
the case, the undersigned makes the following:
CONCLUSIONS of LAW
1. American Federation ' of Industrial and Ordinary Insurance Agents' Union
#23039; AFL , is a labor organization within the meaning of Section 2 ( 5) of the
Act.
2. The respondent ,' The Prudential Insurance Company of America is engaged
in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
3. All licensed industrial agents - of the respondent employed in the district
offices located in'the City of Toledo ,' Ohio, including the subdistrict offices at
Bryan, Ohio , but excluding superintendents , assistant superintendents , clerks, and
cashiers , constitute a unit appropriate for the purpose of dollective bargaining
within the meaning of Section 9 ( b) of the Act.
4. American Federation of Industrial and Ordinary Insurance • Agents' Union
#23039, Toledo , Ohio, AFL, was on April 20 , 1943, and at all 'times thereafter
has been, the exclusive representative of all employees in' such unit for the pur-
poses of collective bargaining within the meaning of Section 9 ( a) of the Act.
5. By refusing ' on April 30 , 1943, ` and at all times thereafter , to bargain
collectively with the American Federation of Industrial and Ordinary Insurance
Agents' Union #23039, Toledo , Ohio, AFL , as the exclusive representative of its
employees in the appropriate unit above described , the respondent - has engaged
in and is engaging in unfair labor practices within . the meaning of Section 8 (5)
of the Act.' . . ' I - ''' ,
6. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (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.
RECOMMENDATIONS
Upon the basis of the foregoing findings of the fact and conclusions of law, and
upon the entire record, the undersigned recommends that the respondent, its
officers, agents , and representatives shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with American Federation of Industrial
and Ordinary , Insurance Agents' Union Local #23039 , Toledo, Ohio , AFL, as
the exclusive representative of all its licensed industrial agents employed in its
district office located in Toledo, Ohio , including the sub-district office in Bryan,
Ohio , but excluding superintendents, assistant superintendents , clerks, and
cashiers;
(b') In any similar manner interfering with, restraining , or coercing its em-
ployees in the exercise of the rights to self-organization , to form, join, or assist*
.1858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, to bargain collectively through representatives of their own
-choosing and to engage in,concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7 of the Act:
2. Take the following affirmative action which will effectuate the policies of
the Act :
(a) Upon request bargain collectively with American Federation of Industrial
and Ordinary Insurance Agents' Union #23039, Toledo, Ohio, AFL, as the ex-
clusive representative of all its licensed industrial agents employed in its district
offices located in the City of Toledo, Ohio, including its sub-district office in Bryan,
Ohio, but excluding superintendents, assistant superintendents, clerks, and cash-
iers, in respect to rates of pay, wages, hours of employment, or other conditions
of employment ;
(b) Post immediately in conspicuous places in its offices in Toledo, Ohio and
Bryan, Ohio, and maintain for a,period of at least sixty (60) consecutive days
from the date of posting, notices to its employees stating that the respondent will
not engage in the conduct from which it is recommended that it cease and de-
sist in paragraph 1 (a) and (b) of these recommendations, and that the re-
spondent will take the affirmative action set forth in paragraph 2 (a) hereof;
(c) Notify the Regional Director for the Eighth Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respond-
ent has taken to comply therewith.
It is also recommended that unless on or before ten (10) days from the re-
ceipt.of this Intermediate'Report the respondent. notifies the Regional Director
for the Eighth' Region in writing that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the re-
spondent to take such action.
As provided in Section 33 of Article II of the Rules and Regulations of the Na-
tional Labor Relations Board, Series 3-effective November 26, 1943-any party
or counsel for the Board may within fifteen (15) days from the date of the entry
of the order transferring this case to the Board, pursuant to Section 32 of
Article II of said Rules and Regulations, file with the Board, Rochambeau Build-
ing, Washington, D. C., an original and four copies of a statement in writing set-
ting forth such exceptions to this Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he re-
lies upon, together with the original and four copies of a brief in support thereof.
Immediately upon, the filing of such statement of exceptions and/or brief, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request- therefor must be made in writing within ten (10)
days from the date of the order transferring the case to the Board.
R N. DENHAM,
Trial Examiner.
Dated March 21, 1944.