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Prudential Insurance Co. v. National Labor Relations Board

decided: May 2, 1969.


Friendly, Kaufman and Hays, Circuit Judges. Friendly, C. J. (dissenting).

Author: Kaufman


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.


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.*fn1 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.


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,*fn2 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.*fn3 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 district 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 1 1/2 to 2 hours and on Friday mornings for 2 1/2 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.*fn4 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 ...

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