Prudential Ins. Co. of America v. N.L.R.B.

• Decision Date: 12 February 1976
• Docket Number: No. 75--1030,AFL-CI,I,75--1030
• Citation: 529 F.2d 66
• Parties: 91 L.R.R.M. (BNA) 2422, 78 Lab.Cas. P 11,251 The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Insurance Workers International Union,ntervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 66

529 F.2d 66

91 L.R.R.M. (BNA) 2422, 78 Lab.Cas. P 11,251

The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Insurance Workers International Union, AFL-CIO, Intervenor.

No. 75--1030.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 13, 1975.

Decided Feb. 12, 1976.

Certiorari Denied May, 19, 1976.

See 96 S.Ct. 2176.

Charles A. Horsky, Jerome Ackerman, Robert H. Loeffler, John W. Douglas, Washington, D.C., for petitioner.

Isaac N. Groner, Charles R. Both, Cole & Groner, P.C., Washington, D.C., for intervenor.

Elliott Moore, Alan Banov, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for respondent.

Before EDWARDS, McCREE and MILLER, Circuit Judges.

EDWARDS, Circuit Judge.

Prudential petitions to review and set aside an order of the National Labor Relations Board requiring it to bargain with the Insurance Workers International Union for a unit of office workers at its Grosse Pointe, Michigan, District Office. The Board in turn cross-petitions for enforcement of its order. The Board decision is reported at 215 N.L.R.B. No. 30.

Two issues are presented. First, Prudential contends that the single District Office bargaining unit determined by the Board in this case is inappropriate. Prudential also argues that this court's opinion in N.L.R.B. v. Pinkerton's, Inc., 428 F.2d 479 (6th Cir. 1970), sets standards for appropriate bargaining units which require the Board and this court to determine that, under the facts of this case, only a bargaining unit based upon Prudential's regional office encompassing 48 district offices in seven states is appropriate. On the other hand, the Board argues that the NLRB has wide discretion over determining the appropriate bargaining unit. In this regard the Board cites NLRB v. Difco Laboratories, Inc., where this court held:

The finding of the Board in the July representation case with regard to the appropriateness of the unit consisting of Difco's Department 35 production employees must be affirmed unless it can be said to be arbitrary or capricious or unless it violates some specific provision of the Act. See, e.g., N.L.R.B. v. Prudential Ins. Co. of America, 154 F.2d 385 (6th Cir. 1946); N.L.R.B. v. Merner Lumber and Hardware Co., 345 F.2d 770 (9th Cir. 1965), cert. denied, 382 U.S. 942, 86 S.Ct. 397, 15 L.Ed.2d 352 (1965).

NLRB v. Difco Laboratories, Inc., 389 F.2d 663, 667 (6th Cir.), cert. denied, 393 U.S. 828, 89 S.Ct. 91, 21 L.Ed.2d 98 (1968).

The Board also contends that its experience in insurance company cases has led it to consider a single district office as a presumptively appropriate bargaining unit. Equitable Life Assurance Society, 192 N.L.R.B. 544, 545 (1971); Metropolitan Life Insurance Co., 156 N.L.R.B. 1408, 1414--15, 1418 (1966); Quaker City Life Insurance Co., 134 N.L.R.B. 960, 962, 138 N.L.R.B. 61, enf'd in pertinent part, 319 F.2d 690 (4th Cir. 1963).

The only hearing in this case concerning the appropriateness of the bargaining unit was held before a Hearing Officer in the representation proceeding. Basing his findings on that record, the Regional Director in his Decision and Direction of Election said:

In determining the appropriateness of a single office unit in a multi-office situation the Board has repeatedly held a unit limited to a single petitioned-for location to be presumptively appropriate. Equitable Life Assurance Society of the United States, 192 NLRB 544. In the instant matter, I conclude that this presumption has not been overcome but, indeed, has been buttressed by the record. Thus, the Grosse Pointe District Office clerical employees are under the immediate and direct supervision of the office and district managers who control their hiring, promotions, pay raises overtime, job assignments, certain types of discipline, and who have the authority to recommend their discharges. There is minimal employee transfer, ⁵ between the Grosse Pointe

and other offices, and there are great distances between certain district offices within the Employer's proposed unit. It is clear that the day-to-day decisions concerning a clerical employee's terms and conditions of employment are made at the district office level and that said district office maintains the substantial degree of autonomy necessary for collective bargaining to effectively function. Equitable Life Assurance Society of the United States, supra; Firemen's Fund Insurance Company, 173 NLRB 982, Metropolitan Life Insurance Company, 156 NLRB 1408. I, thus, conclude that the following employees employed by the Employer share a sufficient and distinct community of interest separate from that of clerical employees in other district offices, so that they constitute a unit appropriate for the purpose of collective bargaining. Bank of America National Trust and Savings Association, 196 NLRB No. 76; Empire Mutual Insurance Company, 195 NLRB 284.

All office clerical employees employed by the Employer at its Grosse Pointe District Office located in Harper Woods, Michigan; excluding agents, professional employees, guards and supervisors as defined in the Act.

Prudential's own managerial witnesses gave testimony which we read as supporting the facts found above. We recognize, of course, that Prudential argues that, in spite of this evidence of autonomy, '(r)esponsibility for and control of all significant decisions affecting the office and clerical staff is centralized in the Regional Home Office through various devices.' The North Central Regional Home Office doubtless does have ultimate authority over every district office. Since, however, its authority encompasses 48 district offices in seven states, it would be an extraordinary feat to exercise that control on a day-by-day basis. We believe the Board's view that the district office has the degree of autonomy necessary for being an appropriate bargaining unit is supported by this record taken as a whole.

Prudential's reliance upon this court's majority opinion in the Pinkerton's case is inappropriate. There this court, in the context of a detective agency with operatives working by contract with many different plants in Ohio, found inappropriate a Board determination of a bargaining unit consisting of Pinkerton's employees in three small Ohio towns close to the Columbus, Ohio, Regional Office of the company. The court emphasized that a lieutenant with limited authority was in charge of the employees in the bargaining unit found by the Board and that the Columbus Regional Office was 'only a few miles' away--facts which obviously are not...