United Insurance Company of America v. NLRB, No. 15266

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtKNOCH, CASTLE and SWYGERT, Circuit
Citation371 F.2d 316
PartiesUNITED INSURANCE COMPANY OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Insurance Workers International Union, AFL-CIO, Intervenor. INSURANCE WORKERS INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and United Insurance Company of America, Intervenor.
Docket Number15589.,No. 15266
Decision Date21 December 1966

371 F.2d 316 (1966)

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

INSURANCE WORKERS INTERNATIONAL UNION, AFL-CIO, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent, and
United Insurance Company of America, Intervenor.

Nos. 15266, 15589.

United States Court of Appeals Seventh Circuit.

December 21, 1966.


371 F.2d 317
COPYRIGHT MATERIAL OMITTED
371 F.2d 318
Almore H. Teschke, Chicago, Ill., Bernard G. Segal, Philadelphia, Pa., Teschke, Burns, Maloney & McGuinn, Chicago, Ill., Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Edward B. McGuinn, Chicago, Ill., Irving R. Segal, James J. Leyden, Herbert G. Keene, Jr., Philadelphia, Pa., for petitioner United Ins. Co. of America

Marcel Mallet-Prevost, Asst. Gen. Counsel, Vivian Asplund, Atty., National Labor Relations Board, Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen., Counsel, Glen M. Bendixsen, Atty., N. L. R. B., for respondent.

Isaac N. Groner, Cole & Groner, Washington, D. C., for Insurance Workers International Union, AFL-CIO.

Before KNOCH, CASTLE and SWYGERT, Circuit Judges.

CASTLE, Circuit Judge.

These cases are before the Court upon the petition of United Insurance Company of America (Company) to review and set aside an order of the National Labor Relations Board issued against the Company July 28, 1965, a petition of Insurance Workers International Union, AFL-CIO, (Union) to review the Board's order to the extent the order denied the Union the full relief it requested, and upon the cross-petition of the Board to enforce its order.1 A motion of the Company to dismiss the Union's petition was taken with the case on the merits.

The Board found that the Company violated Section 8(a) (5) and (1) of the National Labor Relations Act, as amended, by its admitted refusal to bargain with the Union, the certified representative of the Company's debit agents in Baltimore City and Anne Arundel County, Maryland.

The Company is engaged primarily in selling industrial life insurance, a form of ordinary life insurance in which the policies are written in amounts of less than $1,000 and the premiums are payable weekly, and for that purpose maintains district offices throughout the country. Each district office has a manager and several assistant managers, and each assistant manager heads a group of four or five debit agents. These debit agents, so-called for the reason that "debit" describes the agent's book listing the policyholders from whom the agent collects premiums, spend most of their time in the collection of premiums from policyholders residing in a given area. They also solicit applications for new insurance and for fire insurance written by another insurer whose business is also handled by the management and supervisors of the Company.

On June 4, 1964, the Union filed a petition with the Board seeking certification as the collective bargaining representative of the Company's debit agents in Baltimore City and Anne Arundel County, Maryland. On March 16, 1964, the Company had entered into a reinsurance agreement with Quaker City Life Insurance Company, a Philadelphia, Pennsylvania corporation, under which, among other things not here pertinent, the Company reinsured the industrial life insurance policies issued by Quaker in a number of states, including those in force in Baltimore City and Anne Arundel County, Maryland. Quaker had chosen to maintain an employer-employee

371 F.2d 319
relationship with its debit agents, and its agents in Baltimore City and Anne Arundel County were represented by the Union. Upon the effective date of the reinsurance agreement (March 16, 1964) Quaker terminated all of its employees. Some of Quaker's former agents in Baltimore City and Anne Arundel County became agents of the Company. The policies they serviced, and the business they generated, were handled from the Company's Franklin Street district office in Baltimore, a location formerly utilized by Quaker. The debit agents here involved were about equally divided between that office and the company's St. Paul Street district office from which the Company had handled its policies in Baltimore prior to its reinsurance of Quaker's policies and continued to maintain

On July 6, 1964, the Company and the Union entered into a stipulation for certification upon consent election which by its terms provided that the Company did not waive its contention that the debit agents in the unit were independent contractors and not employees within the meaning of the Act, and that the failure of the Company to contest that issue was limited solely to the representation proceeding. The Union won the election and was certified on August 14, 1964. On August 20, 1964, the Union requested recognition. On September 1, 1964, the Company denied that request. It based its refusal to bargain with the Union on the ground that the debit agents involved are independent contractors and not employees.

The Board ordered the Company to cease and desist from its refusal to bargain, to bargain with the Union upon request, and to post designated notices.

The Board's conclusion that the Company violated Section 8(a) (5) and (1) of the Act is predicated upon the Trial Examiner's findings and conclusions to the effect that the Company's debit agents in the Baltimore City and Anne Arundel County area unit here involved are employees within the meaning of the Act, which findings and conclusions the Board adopted.

The Company contends that the Board's order is not supported by substantial evidence on the record considered as a whole; that the findings and conclusions adopted by the Board are, in material part, the product of subjective conclusions drawn from the trial examiner's personal observations rather than from the evidence; that material comparative testimony, proffered by the Company, was erroneously excluded; and that at the most the testimony of the two witnesses credited and relied upon by the examiner can be regarded as establishing only that the unit was half "employee" and half "independent contractor".

The Union's contentions2 are limited to its assertions that the Board erred in denying its requests that there be included in the Board's order a specific direction that the Company bargain concerning the fire insurance aspects of the debit agents' activities and a requirement that the Company, from the date of its refusal to bargain until the discharge of its bargaining obligations, apply to all of the debit agents in the unit the terms of a contract which allegedly had existed between Quaker and its former debit agents; and that the Union is entitled to challenge these aspects of the Board's order as a "person aggrieved". The Company's motion to dismiss the Union's petition in No. 15589 challenged the Union's status as an aggrieved person. The Board takes the position that while the Union is an aggrieved person in so far as jurisdictional purposes are concerned, and therefore this Court has jurisdiction of the Union's petition for review, the contentions of the Union with respect to the scope of the Board's order are wholly without merit.3

371 F.2d 320

Two years prior to the Union's petition for certification in the instant matter the issue whether the Company's debit agents in Pennsylvania were Company employees or independent contractors was before this Court in United Insurance Company of America v. N. L. R. B., 7 Cir., 304 F.2d 86. This Court there observed:

"In the instant case, United has chosen to operate its business on the basis that its agents are independent contractors and, of course, it had the complete legal right so to do."

And citing N. L. R. B. v. Phoenix Mutual Life Insurance Company, 7 Cir., 167 F. 2d 983, 6 A.L.R.2d 408, and National Van Lines, Inc. v. N. L. R. B., 7 Cir., 273 F.2d 402, the Court pointed out (304 F. 2d 89):

"* * * that the employer-employee relationship exists when the person for whom the work is done has the right to control and direct the work, not only as to the result accomplished by the work, but also as to the details and means by which that result is accomplished, and that it is the right and not the exercise of control which is the determining element. * * * the critical distinction between employees and independent contractors under the Act is the right to control the manner and means by which the agent conducts his business. In determining whether the requisite control of manner or
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4 practice notes
  • NLRB v. United States Railway Equipment Co., No. 17693.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 3, 1970
    ...not bound by fact findings which we find unsupported by the record as a whole. United Insurance Co. of America v. N. L. R. B., 7 Cir., 371 F.2d 316, 321 (1966), rev'd on other grounds, 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); Portable Electric Tools, Inc. v. N. L. R. B., 7 Cir., ......
  • National Can Corporation v. NLRB, No. 15755.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 8, 1967
    ...of a reviewing court see the recent decision of this Court in United Insurance Co. of America v. National Labor Relations Board, etc., 371 F.2d 316. It is also relevant that the Company had no history of union hostility or objection to the principle of collective bargaining. In fact, it had......
  • National Labor Relations Board v. United Insurance Company of America Insurance Workers International Union, Afl 8212 Cio v. National Labor Relations Board, Nos. 178
    • United States
    • United States Supreme Court
    • March 6, 1968
    ...38. On appeal the Court of Appeals found that the debit agents were independent contractors and refused to enforce the Board's order. 371 F.2d 316 (C.A.7th Cir.). The importance of the question in the context involved to the administration of the Page 256 National Labor Relations Act prompt......
  • Frito-Lay, Inc. v. NLRB, No. 15962.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 7, 1967
    ...by substantial evidence. Moreover, this Court in the recent case of United Insurance Co. of America v. N.L. 385 F.2d 187 R.B., 7 Cir., 371 F.2d 316, 321, stated and discussed the principles governing review of the Board's findings and there is no reason to retread the ground which was adequ......
4 cases
  • NLRB v. United States Railway Equipment Co., No. 17693.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 3, 1970
    ...not bound by fact findings which we find unsupported by the record as a whole. United Insurance Co. of America v. N. L. R. B., 7 Cir., 371 F.2d 316, 321 (1966), rev'd on other grounds, 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); Portable Electric Tools, Inc. v. N. L. R. B., 7 Cir., ......
  • National Can Corporation v. NLRB, No. 15755.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 8, 1967
    ...of a reviewing court see the recent decision of this Court in United Insurance Co. of America v. National Labor Relations Board, etc., 371 F.2d 316. It is also relevant that the Company had no history of union hostility or objection to the principle of collective bargaining. In fact, it had......
  • National Labor Relations Board v. United Insurance Company of America Insurance Workers International Union, Afl 8212 Cio v. National Labor Relations Board, Nos. 178
    • United States
    • United States Supreme Court
    • March 6, 1968
    ...38. On appeal the Court of Appeals found that the debit agents were independent contractors and refused to enforce the Board's order. 371 F.2d 316 (C.A.7th Cir.). The importance of the question in the context involved to the administration of the Page 256 National Labor Relations Act prompt......
  • Frito-Lay, Inc. v. NLRB, No. 15962.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 7, 1967
    ...by substantial evidence. Moreover, this Court in the recent case of United Insurance Co. of America v. N.L. 385 F.2d 187 R.B., 7 Cir., 371 F.2d 316, 321, stated and discussed the principles governing review of the Board's findings and there is no reason to retread the ground which was adequ......

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