The Wayne Oakland Bank

3,62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Wayne Oakland, Bank and Office and Profession- , al Employees International Union, Local 10, AFL-CIO. Case 7-CA-8698 July 29, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on May 1,0, 1971, byOffice and Professional Employees International Union, Local 10, AFL-CIO, - herein called the Union, and duly served on The Wayne Oakland Bank, herein called the Respondent, the General Counsel of the National Labor Relations 'Board, by the Regional Director for Region 7, issued a complaint on May 13, 1971, ,against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and, (1), and-Section 2(6) and (7) of the National, Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a- Trial Examiner were-duly' served on the parties to -this proceeding. I With respect to the unfair labor practices, the complaint alleges in substance that on March 31, 1971, following aBoard election in Case 7-RC-10291, the Union was, duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;1 and that, commencing on or about April 29, 1971, and at all times thereafter, Respondent has refused, and contin- ues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On May 24, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 7, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 14, 1971, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion'for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its i Official notice is taken of the record in the representation proceeding, Cases 7-RC-10290 through 10295, as the term "record" is defined in Secs. 102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp, 164 NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. It should be powers in connection with this proceeding to a three- member panel. Upon the entire record in this proceeding, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT The record in,Cases 7-RC-10290 through 10295 shows that the Respondent operates banking facilities in certain northern suburban communities of Detroit. At present, the Respondent maintains 13 geographi- cally separate and distinct facilities, consisting of its main office and 12 branch offices. The Union filed six petitions in Cases 7-RC-10290 through 10295, seek- ing elections in separate units at the Respondent's main office `and five branch offices, respectively:' A Bearing' was conducted on December 22, 1970, at which the Respondent appeared and was afforded the opportunity to ,litigate all issues, including the scope of the appropriate, unit or units.. The Respondent argued that the only appropriate unit is an employer- wide one, including all eligible employees at all 13 of its offices because the operations of its branch offices are too closely integrated with each other and^with the main ' office to warrant ' separation into distinct bargaining units. Thereafter, on February 22, 1971, after careful consideration' of the entire' record, including the posthearing brief of the Respondent, the Regional Director for, Region 7 issued his Decision and Direction of Elections, in which he found that each of the six locations petitioned for by the Union constituted a separate and distinct appropriate bargaining unit. The Regional Director found that "the integrated nature of the Employer's operations is not so pervasive as to necessitate a unit which encompasses all the Employer's installations" and that "the degree of centralized administrative control herein is less significant than the fact that the employees involved perform their day-to-day work under the immediate supervision of local supervisors whose decisions and exercise of authority substantial- ly affect them on a daily basis. Haag Drug Company, 169 NLRB 877." On March 3, 1971, the Respondent filed its Request for Review with the Board. By telegraphic communication on March 22, 1971, the Board denied the Respondent's Request for Review on the basis that it raised no substantial issues warranting review. In both its answer to the complaint and its response noted that the Regional Director considered six petitions from the Union with respect to this Respondent. (Cases 7-RC-10290, 10291, 10292, 10293, 10294, and 10295.) Although elections were directed in all six cases, the instant proceeding is concerned only with the - Respondent's refusal to bargain with the certified Union for the appropriate bargaining unit in Case 7-RC-10291. 192 NLRB No. 59 THE WAYNE OAKLAND BANK 363 to the Notice To Show Cause, the Respondent again contends that the Regional Director's unit determina- tion and the Board's denial of the Respondent's Request for Review were erroneous, because of the integrated nature of its operations. Accordingly, it argues that it is relieved of any obligation to bargain with the certified Union and that the Motion for Summary Judgment should be denied. We find no merit in the Respondent's position herein. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised -any issue which is properly litigable in this unfair labor practice proceeding. We 'shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent. is, and has been at all times-material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Michigan. At all times material herein, Respondent has maintained its main office and place of business at 400 South Main Street in the city of Royal Oak, State of Michigan, and herein called the Royal Oak Office. Respondent maintains other branches in the cities of Highland Park, Berkley, Clawson, Royal Oak, Troy, and Rochester and is, and has been at all times material herein, engaged in the general commercial banking business. The branch installation located at 6024 Livernois Road, Troy, Michigan, herein called the Livernois Road branch, is the only facility involved in this proceeding. During the year ending December 31, 1970, which period is representative of its operations during all times material-herein, Respondent, in the course and conduct of its business operations, had gross revenue in excess of $500,000 derived from loans, deposits, a and investments. During that same period, it per- formed banking' services valued in excess of $500,000, of which banking services valued in excess of $50,000 were performed for various enterprises and individu- als located in States other than the State of Michigan. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will . effectuate the policies of the - Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Office and Professional Employees International Union, Local 10, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9 (b) of the Act: All full-time and , regular -part-time employees employed by the Respondent at,its office at 6024 Livernois, Troy, Michigan; but exluding all confidential employees, professional employees, and guards and supervisors as defined by the Act. 2. The certification On March 23, 1971,'a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 7, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on March 31, 1971, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about April 21, 1971, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exlusive collective-bargaining representative of all the employ- ees in the above-described unit. 'Commencing on or about April 29, 1971, and continuing at all times 2 See Pittsburgh Plate Glass Co v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c). 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter to, date, the. ,Respondent. has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly,, we find that the Respondent has, since April 29, 197,1, and at all times thereafter, refused to bargain collectively with the Union as the exlusive ,representative, of the, employees -in- the -appropriate unit, and that, by such refusal, Respondent, has engaged in ,and : is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described ' in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among' the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within' the meaning of Section 8(a)(5) and (1) of the Act, we shall order' that it cease and desist therefrom, and, upon reque'st,' bargain collectively with the Union as the exclus ve representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will,,be accorded the services of their selected bargaining agent for the, period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good, faith with,the Union as the recogniz- ed bargaining representative in the appropriate unit. See Mar-Jac, Poultry ,Company, Inc., ,136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 144 NLRB 226, 229, enfd.-328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149, NLRB 1419,142 1, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. The Wayne Oakland Bank is an employer engaged ,in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees Internation- al Union, Local 10, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All- full-time and regular part-tune employees employed by the Respondent at its office at 6024 Livernois, Troy, Michigan; but excluding all confi- dential employees, professional employees,, and guards and supervisors as defined by the Act constitute a unit appropriate for the purposes of collective bargaining within-the meaning of Section 9(b),of the Act. 4. Since March 31, 1971, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate, unit for the purpose of,collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 29, 1971, and at all times, thereafter, to, bargain collectively with the above-named labor organization as the exclusive bargaining representative, of all the ,employees , of Respondent 'in the appropriate unit,, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5),of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing,, employees in the exercise of, the ,rights,' guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the. Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National; Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, The Wayne Oakland Bank, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectivelyconcerning rates of pay, wages, hours, and other terms and conditions of employment with Office and Professional Employ- ees International Union, Local 10, AFL-CIO,,as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time employees employed by the Respondent ^ at its office at 6024 Livernois, Troy, Michigan; but excluding all confidential employees, professional employees, and guards and supervisors as defined by the Act. (b) In any like or related ,manner, interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies' of the Act:', THE WAYNE OAKLAND BANK (a) Upon request, bargain` with the above-named labor organization as the exclusive representative of all employees in- the aforesaid appropriate unit with respect to,rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post. at its Livernois Road branch office -copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 7,- after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 In the event that this Order is enforced by a,Judgment;of a United States Court of Appeals, the words in the notice readmg "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL ' NOT refuse' to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with 'Office and Professional Emplyees International Union, 365 Local 10, AFL-CIO, as the exclusive representa- tive of the employees ' in the bargaining unit described below. 1 WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment , and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All full-time and regular and part-time employees employed by the Respondent at its office at 6024 Livernois, Troy, Michigan; but excluding all confidential employees, professional employees , and guards and supervisors as defined by the Act. THE WAYNE E-OAKLAND BANK (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for'60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 313-226- 3200.