Prudential Insurance Company of America v. NLRB

• Citation: 412 F.2d 77
• Decision Date: 02 May 1969
• Docket Number: 33069.,No. 488,489,Dockets 32936,488
• Parties: The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Insurance Workers International Union, AFL-CIO, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

412 F.2d 77 (1969)

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

Nos. 488, 489, Dockets 32936, 33069.

United States Court of Appeals Second Circuit.

Argued April 10, 1969.

Decided May 2, 1969.

Jerome Ackerman, Washington, D. C. (Thomas R. Haggard, Covington & Burling, Washington, D. C., on the brief), for petitioner.

Paul J. Spielberg, Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Robert E. Williams, N. L. R. B., on the brief), for respondent.

Isaac N. Groner, Cole & Groner, Washington, D. C., for intervenor.

Before FRIENDLY, KAUFMAN and HAYS, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

We are called upon to determine whether the circumstances present here require the employer to comply with the union's request for a list of the names and addresses of its employees in a bargaining unit of which the union is the exclusive bargaining representative.

I.

The Prudential Insurance Company of America (hereinafter Prudential) is engaged in the business of selling and issuing insurance and annuity contracts throughout the United States. The Insurance Workers International Union, AFL-CIO (hereinafter the Union), is the collective bargaining representative of Prudential's District Agents within an extensive bargaining unit we shall shortly describe. On September 19, 1967, the Union filed its charge with the Board stating that by refusing to supply it with a list of the names and addresses of the district agents in the bargaining unit it represented, Prudential had committed unfair labor practices in violation of § 8 (a) (5) and (1) of the National Labor Relations Act. Thereupon, the Board issued a complaint and notice of hearing charging Prudential with refusing to bargain in good faith. In its answer, Prudential admitted refusing to supply the requested list, but denied that this action constituted an unfair labor practice.

Subsequently, the parties entered into a stipulation setting forth the relevant facts and waiving a hearing, a Trial Examiner's decision, the filing of exceptions, and oral argument before the Board. The Board approved the stipulation and accepted transfer of the case for findings of fact, conclusions of law and the issuance of a decision and order based thereon. After all parties filed briefs, the Board on November 13, 1968, determined that Prudential's refusal to furnish the Union with the requested list constituted an unfair labor practice within the meaning of § 8(a) (5) and (1) of the Act, and ordered Prudential to furnish the Union with such a list upon request. Prudential petitions this court to review and set aside the order, and the Board cross-petitions for enforcement.¹ The Union has intervened on the side of the Board. For the reasons set forth below, we deny Prudential's petition for review, and grant the Board's cross-petition for enforcement.

II.

Prudential has recognized the Union as the exclusive bargaining representative of its district agents within the bargaining unit since 1959, and the two have entered into successive collective bargaining agreements since that time. The most recent of these agreements was executed on September 25, 1967, and will remain in effect until September 29, 1969.

The bargaining unit of Prudential district agents represented by the Union, and covered by the agreement, is extraordinary in every respect. As of the end of 1967,² the year the Union filed its charge, the unit consisted of approximately 16,795 district agents employed by Prudential in thirty-four states plus the District of Columbia and the city of Toledo, Ohio.³ For administrative purposes, Prudential has divided the operations of its agents within this area into 478 districts, with a district office located in each. Additionally, in 228 of these districts Prudential maintains one or more "detached" offices, which are administratively related to the district office of the district in which they are located; in all, there are 419 such detached offices.

Each of the more than 16,000 district agents within the unit is assigned to one of these 897 districts or detached offices maintained by Prudential across the United States. The maximum number of agents assigned to the largest district office is forty-seven, the maximum number assigned to the smallest detached office is four. Approximately 90% of these agents are required by Prudential to report to the office to which they are assigned on Tuesday mornings for 1½ to 2 hours and on Friday mornings for 2½ to 3 hours for meetings; the remainder report less frequently because of difficulties in traveling from their place of work to their district or detached office.⁴ The agents all spend the rest of their time working individually in the field.

Although the Union has sought a security clause in each negotiation for a new collective bargaining agreement with Prudential, no such provision has ever been included in any of their agreements. In fact, only about 9,702 of the 16,795 agents in the unit, or 57.4% are Union members, a very slight increase from the 55.7% membership in 1959 when the Union was first recognized as the agents' bargaining representative. Moreover, the distribution of Union members throughout the unit is highly uneven; in fact, 221 of the district and detached offices, to which approximately 2,243 district agents are assigned, have no Union members.

In addition, the rate of turnover of district agents within the bargaining unit is about 25% per year. In 1967, for example, Prudential hired approximately 4,315 new district agents, while 4,241 other agents were terminated. The Union experiences a similar annual turnover in the composition of its membership; in 1967, it gained approximately 2,455 new members, while losing approximately 2,352 of its old membership.

In contrast to the size of Prudential and the extensiveness of this bargaining unit, the Union is relatively small. It has 178 local union organizations in the area encompassed by the bargaining unit. Substantially all of Prudential's district and detached offices in the unit are within the jurisdiction of one of these local unions, which also represent the employees of other insurance companies as well as Prudential agents. The Union employs only ten full time organizers, all of whom have, since 1965, been engaged in activities unrelated to Prudential.

III.

At various times since its recognition in 1959, the Union has orally requested that Prudential supply it with a list of the names and addresses of the district agents in the bargaining unit. In 1960, it submitted a similar request in writing, explaining: "Such a list is necessary to enable us to accomplish effectively our responsibilities as the bargaining agent, and to bargain effectively for our next contract. There is no practicable way to communicate with these employees other than by mail, because of the geographical expanse of the collective bargaining unit." Prudential has consistently refused to comply. Although at various times the Union attempted to obtain the names and addresses of the nonmember agents in the unit through its members, these efforts have been unsuccessful.

Accordingly, on August 23, 1967, the Union's vice president wrote Prudential again requesting that it furnish the list, and urging that such information was "necessary and relevant to the Union's performance and fulfillment of its statutory functions and duties as collective bargaining representative of all these employees." The letter went on to explain that because of the nature of the unit,

* * * without such a list, the Union cannot advise all Agents covered by the Agreement as to the benefits offered by the Agreement, cannot gain from them the information and participation necessary and relevant to police and enforce the Agreement throughout the unit or the adherence and support necessary for their representation, or, in general, cannot in any effective manner communicate with the District Agents who are the beneficiaries of its statutory obligations as collective bargaining representative.

* * * This information is, additionally required and relevant at the present time, when the Union is engaged in collective bargaining with the Company for a new Agreement; and should thus be in a position to inform all the employees represented by it and governed by the Agreement as to the course of the negotiations, and to solicit their understanding and participation in the bargaining process, including their well informed consideration and action upon any proposed new Agreement. * * *

Again, Prudential refused the request, claiming that its policy was not to disclose such information as to any organization for any purpose. Apparently realizing that further requests to Prudential would be equally futile, the Union sought aid from the Board by instituting the unfair labor practice proceeding now before us for review.

IV.

Since the Union has acknowledged in its stipulation that the names and addresses of all the district agents within the unit who are Union members are in its possession, the real bone of contention is whether Prudential is obligated upon request to supply it with similar information as to the agents within the unit who are not Union members.

It is now beyond question that the duty to bargain in good faith imposed upon the employer by § 8(a) (5) includes an obligation to provide the employees' statutory bargaining representative with information that is necessary and relevant to the proper performance of its duties. E. g., N. L. R. B. v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); N. L. R. B. v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956); Fafnir Bearing Co. v. N. L. R. B., 362 F.2d 716 (2d Cir. 1966). And this obligation applies with...