United Insurance Company of America v. NLRB, 13500.

• Citation: 304 F.2d 86
• Decision Date: 02 July 1962
• Docket Number: No. 13500.,13500.
• Parties: UNITED INSURANCE COMPANY OF AMERICA, a corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

304 F.2d 86 (1962)

UNITED INSURANCE COMPANY OF AMERICA, a corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 13500.

United States Court of Appeals Seventh Circuit.

June 12, 1962.

As Amended July 2, 1962.

Bernard G. Segal, Philadelphia, Pa., Edward B. McGuinn, Teschke, Burns, Maloney & McGuinn, Chicago, Ill., Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Almore H. Teschke, Chicago, Ill., Irving R. Segal, Samuel D. Slade, Philadelphia, Pa., for petitioner.

Isaac N. Groner, Washington, D. C., for amicus curiae.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Marion L. Griffin, Atty., Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Samuel M. Singer, Atty., National Labor Relations Board, Washington, D. C., for respondent.

Before DUFFY, KNOCH and CASTLE, Circuit Judges.

DUFFY, Circuit Judge.

Petitioner (United) seeks to review a decision and order of the National Labor Relations Board (Board) dated August 10, 1961. The Board has filed a cross-petition for enforcement of that order.

This case is here for the second time. On the first occasion, we set aside the Board's order (272 F.2d 446), holding the Board had not afforded United procedural due process. We remanded the case "for a full hearing and decision based upon a consideration of all relevant evidence."

The decision and order of the Board here challenged requires United to bargain collectively with Insurance Workers' International Union, AFL-CIO, (IWIU) as the collective bargaining agent for the licensed debit agents who serve United in the State of Pennsylvania. The principal issue is whether these licensed debit agents are independent contractors or employees of United.

In 1953, Local 5, Insurance Workers of America, CIO, filed a petition for certification with the Board. About one month later, Insurance Agents' International Union, AFL, filed a petition also seeking certification. These petitions were later voluntarily dismissed and withdrawn respectively. About two and a half years later, Insurance Agents' International Union, AFL-CIO, petitioned for certification. An agreement was entered into by this Union and United for a consent election with the specific understanding that United would not waive its position that the debit agents were independent contractors.

An election and a re-run election were held, and the Insurance Agents' International Union, AFL-CIO, won and was certified. United refused to bargain, claiming that it was under no obligation to bargain with the Union because the debit agents were not its employees but were independent contractors.

United issues commercial and industrial life, health and accident, and hospitalization insurance policies. Under Pennsylvania law, Industrial Life Insurance Policies of less than $1000 are sold on a weekly premium basis. The debit agents are engaged primarily in selling and collecting premiums on industrial life insurance policies issued by United. However, at times, they do collect premiums on other types of insurance policies issued by United.

In our previous opinion, we observed that in many respects a debit agent has the attributes of an independent contractor, and we listed some of them. We also said that there are some aspects of the duties of debit agents which might indicate their status is that of employees of United. In view of our disposition of the first appeal, we did not reach the issue of whether the licensed debit agents are independent contractors or employees.

On February 8, 1960, the Board reopened the record and remanded the case to the trial examiner "for the purpose of receiving additional evidence consistent with the Court's remand." A hearing was scheduled.

Prior to the hearing date, United moved to transfer the proceedings to the representation docket, principally on the ground that three years had elapsed since the Insurance Agents' International Union (IAIU) had been certified in a close election. United claimed that the disposition of the matter in a representative proceeding would be appropriate to determine both the jurisdictional employee status issue and the current representative status of the certified Union. The motion was referred to the trial examiner and was denied.

On March 25, 1960, three days before the scheduled hearing, counsel who had represented Insurance Agents' International Union disclosed to United's counsel that the certified Union was no longer in existence. It was finally disclosed that in early 1959, prior to the time this case was first presented to this Court, the Insurance Agents' International Union had merged with the Insurance Workers of America and a new union had been formed known as the Insurance Workers' International Union, AFL-CIO, (IWIU). United then renewed its effort to have the case transferred to the representation docket. The Board denied United's request for leave to appeal the examiner's ruling denying the motion to transfer.

In the 1957 hearing, the Board declined to receive or consider the testimony of one Jack Borman which was offered by United. Counsel for United then made an extensive offer of proof. Borman operates a large enterprise which sells and services insurance policies for United in Pennsylvania. It has acted in such capacity for a considerable period of time. It is and has been subject substantially to the same instructions, report requirements and other procedures in its relationship with United as are the debit agents involved in this proceeding. The purpose of the testimony was to demonstrate that the so-called "controls" relied upon by the Board as showing the agents to be employees, applied equally to the Borman enterprise, which no one contended made them employees of United.

At the new hearing, there was no new evidence on the basic question of employee status. The parties stipulated that the record in the prior proceeding should be considered a part of the record in the current proceeding. United again offered the testimony of Mr. Jack Borman, but it was again excluded by the examiner on the same basis as in the prior proceeding. The parties stipulated that if the Board found the exclusion of Borman's testimony to be error, United's offer of proof would be accepted as the entire testimony of Mr. Borman.

In his Supplemental Intermediate Report of July 29, 1960, the trial examiner recommended the Board dismiss the complaint against United because the certified Union which had filed the complaint in 1957 no longer existed, and that IWIU which purported to replace IAIU was not a certified representative of United's debit agents in Pennsylvania.

On September 28, 1960, the Regional Director issued a decision and order amending the 1957 certification by substituting IWIU for IAIU. United's request for leave to appeal this order was denied. On December 6, 1960, the Board issued a decision and order granting IAIU's motion to amend the name of the charging party to IWIU.

On March 24, 1961, the trial examiner filed a Second...