First National Bank of New Smyrna Beach

FIRST NATIONAL BANK OF NEW SMYRNA BEACH First National Bank of New Smyrna Beach and Office & Professional Employees International Union, AFL-CIO, Local No. 73. Case 12-CA-5854 August 6, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge filed on November 8, 1973, and amended January 15, 1973, by Office & Professional Employees International Union, AFL-CIO, Local No. 73, herein called the Union, and duly served on First National Bank of New Smyrna Beach, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 12, issued a complaint and notice of hearing on January 17, 1973, against Respondent al- leging that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on May 17, 1972, fol- lowing a Board election in Case 12-RC-4038, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about October 27, 1972, and at all times thereaf- ter, Respondent has refused, and continues 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 January 24, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On January 31, 1973, the General Counsel, by counsel, filed with the Regional Director a motion to strike portions of Respondent's answer and motion for summary judgment, and on that date, the Region- al Director for Region 12 issued an order referring the motion to the Board for ruling and postponing the hearing indefinitely. The Board, on February 15, 1973, issued an order transferring proceeding to the 'Official notice is taken of the record in the representation proceeding, Case 12-RC-4038, 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 Elecirosystemr, Inc, 166 NLRB 938, enfd 338 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969), 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 281 Board and notice to show cause why the General Counsel's motion should not be granted. The Respon- dent filed a response to the notice to show cause, and the Charging Party filed a reply thereto. Thereafter, on March 22, 1973, the Board denied General Counsel's Motion for Summary Judgment and re- manded the proceedings to the Regional Director for Region 12 for the purposes of holding a hearing and to issue a notice thereof. The Board further directed that upon conclusion of the hearing the Administra- tive Law Judge should prepare and serve upon the parties his Decision, with the provisions of Section 102.46 of the Board's Rules and Regulations to be applicable thereafter. On April 13, 1973, the Respon- dent, Charging Party, and the counsel for the General Counsel entered into a stipulation in lieu of going to hearing, and the Regional Director for Region 12 transferred the case to the Board for ruling and post- poned the hearing indefinitely. Subsequently, on May 18, 1973, the Board issued an order approving the stipulation and making it a part of the record herein, transferring the proceeding to the Board, and granting the parties leave to file briefs with the Board. The General Counsel thereafter filed a brief with the Board requesting that it find Respondent has violated Section 8(a)(5) and that the bargaining period be ex- tended in accord with established Board policy. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is a banking corporation duly organized under the laws of the State of Florida and the United States and is engaged in a general banking business. During the past 12 months, Respondent received gross income in excess of $500,000; it holds United States Government securities valued in excess of $2 million; and has outstanding loans to persons outside the State of Florida in excess of $500,000. During the same period, Respondent received interest in excess of $100,000 from United States Government agencies and income in excess of $50,000 from out-of-state loans. 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 205 NLRB No. 63 282 jurisdiction herein. DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE LABOR ORGANIZATION INVOLVED Office & Professional Employees International Union, AFL-CIO, Local No. 73, is a labor organiza- tion within the meaning of Section 2(5) of the Act. Ili 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 pur- poses within the meaning of Section 9(b) of the Act: All employees employed by Respondent at its bank located at 401 South Dixie Freeway, New Smyrna Beach, Florida;' but excluding guards and supervisors as defined in the Act. 2. The certification On April 12, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 12, designated the Union as their representative for the purposes of collective bargain- ing with the Respondent. The Union was certified as the exclusive representative of said unit on May 17, 1972, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. Respondent 's Refusal To Bargain Following the Union's certification, Respondent and the Union met in negotiations commencing on June 22, 1972, and on various occasions thereafter including July 6, 20, August 8, and September 6, 1972, to achieve a collective-bargaining agreement covering hours and terms and conditions of employment of employees in the appropriate unit . Contract terms were not completely agreed to although no impasse was reached. On August 25, 1972, pursuant to charges duly filed, a consolidated complaint was issued in Cases 12- CA-5001 and 12-CA-5657, alleging Respondent en- gaged in certain unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act.3 On 2 This is Respondent's sole location First National Bank of New Smyrna Beach, 204 NLRB No II October 27, 1972, Respondent's attorney, Harrison C. Thompson, Jr., notified the Union that Respondent was discontinuing negotiations , as follows: This will confirm our telephone conversation of today concerning the referenced matter. As I informed you, under the circumstances, the employer feels that a continuation of the negotia- tions at this time would serve no useful purpose. Respondent's position was that it could not engage, or continue to engage, in collective bargaining with the Union while the unfair labor practice allegations in the above cases were pending before the Board. Pur- suant to this position , no collective-bargaining ses- sions were held after about September 6, 1972. The Union did not acquiesce in Respondent's suspension of bargaining. It is well settled that the pendency of unfair labor practice charges or proceedings against an employer do not relieve it of its duty to bargain with the union filing those charges and that a refusal to bargain be- cause of pending charges constitutes bad-faith bar- gaining on the employer's part .4 It is stipulated that this was the Respondent's ground for refusal, and no basis has been advanced as to why this principle is inapplicable here. Accordingly , we find that the Respondent has, since October 27, 1972 , and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit and that, by such refusal , Respondent has engaged in and is engaging in unfair labor practic- es 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 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 com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 7 A hearing was held and on December 29, 1972, Administrative Law Judge John P von Rohr issued his Decision finding the unfair labor practices alleged The Board on June 13, 1973, adopted his Decision but did not pass on his finding of an 8(a)(4) violation 204 NLRB No 11 4 Rauland Division of Zenith Radio Corporation, 187 N LRB 785, and cases cited in fn I therein FIRST NATIONAL BANK OF NEW SMYRNA BEACH 283 V THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) and (5) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused in good faith to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit described herein. It will therefore be ordered that the Respondent bargain collectively, upon request, with the Union as the exclusive repre- sentative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. The General Counsel has requested an extension of the certification year consistent with Mar-Jac Poultry Company, Inc., 136 NLRB 785. As we assess the viola- tion found here, we conclude that a general bargain- ing order is the appropriate remedy, rather than a specific extension of the certification year. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. First National Bank of New Smyrna Beach is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office & Professional Employees International Union, AFL-CIO, Local No. 73, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent at its bank located at 401 South Dixie Freeway, New Smyr- na Beach, Florida; but excluding guards and supervi- sors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 17, 1972, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 October 27, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of the Re- spondent 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 mean- ing of Section 8(a)(5) and (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 Rela- tions Board hereby orders that Respondent, First Na- tional Bank of New Smyrna Beach, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment, with Office & Professional Em- ployees International Union, AFL-CIO, Local No. 73, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees employed by Respondent at its bank located at 401 South Dixie Freeway, New Smyrna Beach, Florida; but excluding guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its New Smyrna Beach, Florida, bank copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Re- gional Director for Region 12, 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 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 12, in writing within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Office & Professional Employees International Union, AFL-CIO, Local No. 73, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere 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 understanding in a signed agreement. The bargaining unit is: All employees employed by Respondent at its bank located at 401 South Dixie Freeway, New Smyrna Beach, Florida; but excluding guards and supervisors as defined in the Act. FIRST NATIONAL BANK OF NEW SMYRNA BEACH (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 compli- ance with its provisions may be directed to the Board's Office, Room 706, Federal Office Build- ing, 500 Zack Street, P.O. Box 3322, Tampa, Florida 33602, Telephone 813-228-7711, ext. 227.