American National Bank and Trust Co. of Chicago

In the Matter of AMERICAN NATIONAL BANK AND TRUST COMPANY OF- CHICAGO AND AMERICAN NATIONAL SAFE DEPOSIT COMPANY, ITS WHOLLY-OWNED SUBSIDIARY, EMPLOYERS and PROTECTIVE SERVICE EMPLOYEES UNION OF CHICAGO LOCAL 240, AFFILIATED WITH BUILD- ING SERVICE EMPLOYEES INTERNATIONAL UNION (A. F. OF L.), PETI- TIONER Case No. 1d'-R 1921..-Decided October 31, 1946 Jacobson, Nieman & Silbert, by Mr. Lewis F. Jacobson, of Chicago, Ill., for the Employers. Messrs. Daniel D. Carmell, Leo Segall , and John Arnett , of Chicago, Ill., for the Petitioner. Mr. Melvin J. Welles , of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Chicago, Illinois, on November 1, 2, 10, 16, and 30 and December 14 and 28, 1943, January 17 and 28 and February 7 and 16, 1944, and June 28, 1946, before Robert R. Rissman and Herman J. DeKoven, hearing of- ficers. The hearing officers' rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the Em- ployer moved to dismiss the petition on various grounds, in substance as follows : (1) The National Labor Relations Act is unconstitu- tional; (2) the hearing officer (formerly designated as "Trial Exam- iner") engaged in an extra-legal search and unlawfully acted as prosecutor, judge, and jury in the conduct of the case; (3) the Peti- tioner does not represent any of the employees involved in this proceed- ing; (4) the Petitioner's amended petition does not conform to Article III of the Board's Rules and Regulations (Series 2-as amended) ; (5) the Employers are not engaged in commerce within the meaning of the Act; and (6) the unit petitioned for is inappropriate. In addition, the Employer moved to strike certain amendments to the Board's Rules and Regulations as unconstitutional. The Employers' first ground in support of its motion to dismiss, that the National Labor Relations Act is unconstitutional, is patently 71 N. L. R. B., No 77. 503 504 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD without merit. The Supreme Court upheld the constitutionality of the Act in 1937? We also find no merit in the Employers' contention that the hear- ing officer engaged in an extra-legal search and unlawfully acted as prosecutor, judge, and jury in the conduct of this case. With respect to the alleged "extra-legal search," it is sufficient to note that the Cir- cuit Court of Appeals affirmed the District Court's order enforcing the Board's subpenas daces tecum, used by the Board to conduct this search.' As to the allegation that the hearing officer acted as prosecu- tor, judge, and jury, it has been asserted repeatedly that a representa- tion case, such as the present proceeding, is investigatory in nature, designed merely to ascertain whether or not a question concerning representation exists, which question the Board may resolve by di- recting elections in appropriate units. There is nothing adversarial in such a proceeding. The company or companies involved are des- ignated not as respondents, but as Companies or Employers. The hearing officer assists in this investigation; it is his duty to see to it that a record is made of all evidence relevant to the question concern- ing representation and the appropriate unit. He acts as agent of the Board for this purpose, and as such is neither prosecutor, judge, nor jury, either at the same time, or at any time. For the same reason, we deny the Employers' motion to strike certain amendments to the Board's Rules and Regulations.-3 The Employers' contention that the petition should be dismissed on the asserted ground that the Petitioner does not represent any of the employees involved in this proceeding is also without merit. When the hearing in this case began, on November 1, 1943, the Petitioner satisfied the Board's requirements that it produce a sufficient showing of interest to warrant a representation proceeding. The hearing was not completed until June 28, 1946. However, this proceeding has been a single continuous investigation, and there was only one hear- ing in this case. The protracted period of time during which it was held does not invalidate the Petitioner's original showing of interest. Furthermore, as we have declared in numerous cases, the question of whether or not a petitioner has made a sufficient prima facie showing of interest to warrant the conduct of a representation election is an administrative platter, and is, therefore, not subject to direct or collateral attack by any of the parties to the proceeding's 1 N L R. B. v. Jones & Laughlin Steel Corporation, 301 U S. 1 2N L R B v American National Bank and Trust Co, 148 F (2d) 24 (C C. A 7), certiorari denied 326 U S 731. 3 The amendments in question are those of January 18 and October 12, 19, and 20. 1943, designated as Z-1905, Z-2073 , Z-2074 and Z-2075 The Employers' objections , in sub- stance, are that these amendments provide , cuter alia, that certain files and records are in the exclusive custody of the Board and are not subject to inspection, and that Board em- piovees are prohibited from producing files, records, etc , pursuant to subpena daces tecum 4.lfatter of Nash Motors Division of Nash -Kelvinator Sales Corporation (Philadelphia Zone), 68 N L It B 651; Matter of 0. D Jennings & Company, 68 N L R B 516 AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO 505 The Employers base their motion to dismiss on the further allega- tion that the Petitioner's amended petition does not conform to Article III of the Board's Rules and Regulations , Series 2-as amended. We are of the opinion that the amended petition is substantially in con- formance with these Rules and Regulations. For these reasons, and, with respect to the remaining grounds upon which the Employers' motion to dismiss is based, for the reasons set forth in Sections I and IV, infra, the motions of the Employers are hereby denied. The Employers' request for oral argument is denied inasmuch as the record, in our opinion, adequately presents the issues and posi- tions of the parties. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS The parties stipulated to the following facts concerning the busi- ness of the Employers : American National Bank and Trust Company of Chicago, herein called the Bank, is a National banking association , organized and ex- isting under and by virtue of the laws of the United States. Its Charter was issued June 20, 1928, at which time it was known as Straus National Bank and Trust Company. On January 3, 1933, its name was changed to American National Bank and Trust Company of Chicago, pursuant' to a Certificate of Change of Corporate Title issued on that date by the Acting Comptroller of the Currency. The Bank also acts as a trust company, by virtue of a Certificate of Authority issued June 20, 1928, by the Federal Reserve Board and a Certificate issued June 27, 1928, by the Auditor of Public Accounts of the State of Illinois. The Bank is now a stockholder in the Federal Reserve Bank of Chicago, Illinois, in accordance with the provisions of the Federal Reserve Act as amended, and is a duly qualified member of the Federal Reserve system. It is also an insured bank under the Federal Deposit Insurance Corporation. As of March 30, 1946, the total assets of the Bank amounted to $223,146,282.89, and $106,175,842.47 of such assets represented in- vestments in securities of the United States Government. As of the same date, loans and discounts outstanding were valued at $58,165,- 536.36; deposits exceeded $197,000,000; capital, surplus , and undi- vided profits amounted to more than $6,500,000; and municipal bonds held by the Bank totaled more than $15 ,000,000. During the period from January 1 , 1946, to March 30, 1946 , inclu- 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sive, transit items forwarded to banks outside the State of Illinois aggregated $389,546,316.50. During the same period the Bank issued letters of credit and travelers' checks aggregating more than $1,000,- 000, and maintained deposit accounts in other banks located in the States of New York, Massachusetts , Pennsylvania , Michigan, Mis- souri, Minnesota , and California . The physical properties of the Bank are located at 33 North LaSalle Street, Chicago, Illinois. American National Safe Deposit Company , herein called the Safe Deposit Company , is an Illinois corporation , engaged in the business of renting safe deposit space to such members of the public as appear at its place of business, located within the building occupied by the American National Bank and Trust Company at 33 North LaSalle Street, Chicago, Illinois. The entrance to the safe deposit vaults is a short distance from the entrance to the bank , on the ground floor of the building . The Safe Deposit Company is a tenant of LaSalle Street Buildings, Inc., of which the Bank is also a tenant. All of the stock of the Safe Deposit Company is owned by the Bank. Each of the officers of the Safe Deposit Company, is also an officer of the Bank. The Safe Deposit Company and the Bank also have two directors in common. During the period from January 1 to April 30, 1946, the Safe De- posit Company received $19,151.20 in rentals for safety deposit boxes. Additional income of the Safe Deposit Company during the same period amounted to $4,425 .30. As of April 30, 1946, the Safe Deposit Company had approximately 7,500 safety deposit boxes under lease, of which approximately 50 were leased to persons who gave per- manent addresses outside the State of Illinois. Approximately 20 percent of the safety deposit box lessees are also, customers of the Bank. All mail addressed to the Safe Deposit Company is received through the mailing division of the Bank, although none of the mail addressed to the Bank is received through the Safe Deposit Company, and outgoing mail is handled in each case by the sender. A bronze plaque on the outside of the building indicates that safety deposit boxes are available. An illuminated glass sign and occasional card- board sib is inside the Bank quarters advertise the Safe Deposit Company, but the charge is paid directly by the latter. No reference to the Bank is made directly in the advertising of the Safe Deposit Company, although small cardboard cards advertising the Trust Department of the Bank are located in some of the private customer rooms of the Safe Deposit Company. The Bank has solicited business for the Safe Deposit Company by letters mailed to Bank customers and literature enclosed with customers' statements. No officers or employees of the Bank have access to keys of un- rented safety deposit boxes of the Safe Deposit Company, or access to AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO 507 safes where such keys are located, nor do any such officers or em- ployees have control over the release of such keys. Furthermore, the Bank keeps no original or duplicate records of articles lost in the Safe Deposit Company. The Employers assert that they are not subject to the jurisdiction of the Board, contending that neither the Bank nor the Safe Deposit Company is engaged in interstate commerce. This contention is with- out merit.i The Employers contend further that even if the Bank itself is found to be engaged in interstate commerce, the employees sought by the Petitioner are not engaged in such commerce. This contention is also without merit.6 In addition to the stipulated facts above, the following evidence was adduced at the hearing : Em- ployees of the Bank have solicited customers for the Safe Deposit Company, and have received commissions for such services. An employee lunch room is used by employees of both the Bank and the Safe Deposit Company. An annual golf party is open to employees of the Bank and the Safe Deposit Company. The Bank's elevators are available for customers of the Safe Deposit Company. The Safe Deposit Company's vaults adjoin the cash and security vaults of the Bank. Records of the Safe Deposit Company are kept in an office on the bank's premises, which is occupied by a vice president of the Safe Deposit Company, who is also an assistant vice president of the Bank. From all evidence, and because of the corporate inter- relationship it is clear that the operations of the Safe Deposit Com- pany are so closely integrated with those of the Bank that the two institutions in reality constitute a single business enterprise which falls within the purview of Section 2 (2) of the Act.7 We find that the Bank and the Safe Deposit Company are engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employers. III. THE QUESTION CONCERNING REPRESENTATION The Employers refuse to recognize the Petitioner as the exclusive bargaining representative of employees of the Employers. 5 Matter of City National Bank and Trust Company of Chicago, and City National Safe Deposit Company, its wholly -owned subsidiary, 50 N. L. R. B 516 , and cases cited therein. See N. L. R. B. v. Bank of America, 130 F. (2d) 624 ( C. C. A. 9 ), certiorari denied 318 U. S. 791. 6 Matter of City National Bank and Trust Company of Chicago, and City National Safe Deposit Company, its wholly-owned subsidiary, supra. i Ibid. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that a question affecting commerce has arisen concerning the representation of employees of the Employers, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. - IV. THE APPROPRIATE UNIT The Petitioner seeks a single unit comprised of all guards of the Bank, including night watchmen, and all custodians, inspectors, at- tendants, and gatemen of the Safe Deposit Company, but excluding clerical employees, employees in the mail and messenger department, the captain of police, managers, and all supervisory employees. The Employers contend, as indicated above, that no unit is appropriate. However, they further contend that if the Board assumes jurisdiction, the unit is impractical because it combines plant-protection employees with other employees. As indicated above, the Bank and the Safe Deposit Company con- stitute a single integrated enterprise, and we are of the opinion that they constitute a single employer within the meaning of Section 2 (2) of the Act, and that the employees of the Bank and of the Safe Deposit Company might constitute a single appropriate units The following facts adduced at the hearing also demonstrate the appropriateness of a single unit containing employees of both the Bank and the Safe De- posit Company : The Bank's assistant vice president in charge of per- sonnel, who hires Bank guards, also, in his capacity as vice president of the Safe Deposit Company, hires and discharges Safe Deposit Com- pany employees. The schedules and number of working hours of all the employees concerned are substantially the same. Both groups of employess are salaried, and the starting salary of the Safe Deposit Company custodians and the Bank guards is the same, other factors being equal. Three of the Bank guards, in fact, receive the same salary as three of the Safe Deposit Company employees. The Bank and Safe Deposit Company employees enjoy the same vacation rights, Christmas bonuses, sick leave, and various other privileges. Further- more, an employee lunch room is used by both groups of employees, an annual golf party is open to all employees, and the Bank's elevators are used by employees of both the Bank and the Safe Deposit Company. The Bank employs approximately eight guards on day duty, who guard the Bank premises, direct customers to various places at the Bank, and admit persons through various gates located on the Bank premises. It employs two night watchmen, who patrol the Bank 6 Matter of City National Bank and Trust Company of Chicago, and City National Safe Deposit Company, sts wholly-owned subsidiary, supra, and cases cited in footnote 6 therein. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO 509 premises. Both the guards and the watchmen are armed.' The guards are uniformed, although the watchmen are not. The watch- men are under the supervision of the person to whom the guards' immediate supervisor is responsible. The salaries and terms and conditions of employment are the same for both the guards and the watchmen. The Safe Deposit Company employs three custodians, an attendant (also known as inspectors) and a gateman. All five employees per- form their services in the vicinity of the Safe Deposit Company's vault. The custodians open the safe deposit boxes for the customers. The attendant directs customers to rooms near the vault reserved for customer use and inspects these rooms after the customers leave. The gateman is stationed at the entrance to the vault and opens the gate for the customers. The attendant is the only one of the five employees who is armed, although all five are, uniformed. The five employees relieve each other occasionally, and all are under the supervision of the same person. The terms and conditions of employment, and the rights and privileges of all five are the same, and they use the same facilities. Although the Employers contend that the unit is impractical inso- far as it combines plant-protection employees with other employees, it is clear from the record that the duties of all the employees involved herein are substantially those of plant-protection employees, and de- spite the different classifications, such as night watchmen, custodians, attendants, and gatemen, all of these employees are, in effect, guards. We find, accordingly, that all guards, employed by the Bank, includ- ing night watchmen, and all custodians, inspectors, attendants, and gatemen employed by the Safe Deposit Company, excluding clerical employees, employees in the mail and messenger department,10 the captain of police, managers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with American National Bank and ° None of the employees involved in this proceeding is militarized. All armed employees are deputized as special policemen of the city of Chicago, under a city ordinance which pro- vides for such deputlzatlon of persons who acquire permits to carry a gun . These em- ployees are, however, admittedly employees of the Bank or Safe Deposit Company, and not the city of Chicago. 1° It is clear from the record that these employees have substantially different duties from those of the employees included in the appropriate unit At the hearing, the Petitioner indicated that it desired an election among the employees in the mail and messenger depart- ment in a separate unit. Subsequently, however, the Petitioner changed its position, and does not now desire such an election. ' 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. Trust Company of Chicago and American National Safe Deposit Company, its wholly-owned subsidiary, Chicago, Illinois, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direc- tion and supervision of the Regional Director for the Thirteenth Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since qi}it or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by Protective Service Employees Union of Chicago, Local 240, affiliated with Build- ing Service Employees International Union (A. F. of L.), for the purposes of collective bargaining.