Fall River Savings Bank

F A I RI\' R SAVING(S 1lANK Fall River Savings Bank anid United Food & Com- mercial Workers Union, Local No. 1325, AFL- CIO-CIIC. Case 1-CA-17528 March 12. 1982 DECISION AND ORDER BY CI A IRMl AN V1) N I)1 WA'ITR ANDi MIMH iIiRS FA NNIN(; A NI) ZI- MIRiRN I tN On August 12, 1981, Administrative Lava Judge William F. Jacobs issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board had delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 I nI Its excepi nrs. Respoillideni contenrls. tltr aha. that lIe Ad'lrnint- Irail te Las Jud ge .a ha biasii>ed agiisl Resp ondent, inlprmipehrl i hifted the burden of proof o Respondentl. and disregarded inporrianl recoird ei- dence After careful elxamniation of the enire record, 's e lfit no Le - denee of bias on the Adminisiratie t uas Judge's part As for Ihe burden- of-proof allegation. Respondentl relie, ,I the last senttence i, part B t tirhe Adm inistlrlisc l.a. Judgc's l)eclsion v herr. after diicusii ng the G(creral Counsel's pi.silll. .iid applicable cast las. the Adminliratise i as, Judge states that "unless Respondent's defences. discussed it,/ru. require different collcluslon. the General Counsel h;s pro, cn ;a prir a fi. ii lcac " We do nol belies e that the Administrratic l i.as Judge thcreh, impodl the burden of proof orn Resporndent, but rather "s as attemptin g to SI;It that the General Counsel had estahlished a prima jtie case and Respond- ent therefiore had the burden iof going floriard .ith ceidencc in Iuppior iof its defense Cionsistent ailh this o(nslruction. [hte .Adiini-Iratis.e [I i Judge proceerded Iii cionsider Respondentc's defenses ; ltld rebultal eti dence Respondent i as,, iers thai the Admlniislrtitrise I.a Judge ig- nored entensi e e idclnce of its past scheduling flexibilily and testiul ' i > bh Asslstanr t Vice liresidetnt Sila thiat \shen lioutin told her she s.;s re- signing. Silsa i.sked fioutin. "cat n' ou s\, rk it outr'" and Il otlllll replied. io. I can't Although the record sho .. s thlt Respondenl had ni;lde scheduling accommodnnt;sini s iin the pat., that e.iderlce has little hearilng in Routin's case sw here the record re. als that Responldentc , hilc a;Iarc iof Boutin's problem s. ith ia i-a \ . iork ceek. nrlade no mnleaningfil tilt nlpt It) W ork ulIt all acceptable schedule ssilh fier Aside front Sil l a' testimo- ny. which falls lshort of e en uin offer to asi , Itoulii res oe lier shedtil ing difficult). Respondenl rem;lanied silent and did nol raise Ihc nalrt er during Buoultiin' rema;ining 2 %keekL, at Ihe bank 2 The Aditlnitralis e [ i, Judge in luded a broad ciease tid - rS's[ provision Ili his recommendei i d O)rder I li lam(rt l odi. In, . 242 NI RlH 1357 ( 179) I the lBoard held that suicI all irdetr is ",rrnllled e in Ir hei .t respondentt is sfil.ns to h ite a pro; llrit to. \1olate ile All O r hilo i..1c gaged In Ilch egl IeglII oi r ii sl C Iepre Ii, .it Cilduc tI as I dItelOn ItrillI. I general disregardl for the crtpli ec, ' fuiidaitcrti.ul tIlaItors righlt, \' find this case doe,s rot fall it to the huo,e iateizorr A.e t hcrefiure subll - tute a narros t caeie-ind-desisl tpr- is ioll tor the broad tne i Ihti ret coa mended Order and sue cionformni tIh-e ilice accordlligi s 260 NLRB No. 125 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fled below,. and hereby orders that the Respondent. Fall River Savings Bank, Fall River, Massachu- setts, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph l(b): "(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NoTr ICi To EMPiNo e-Ils POSTED BY ORI)ER OF IiHI NATIONAL LABOR R-I.ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended. and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WF WILL. NOT unilaterally eliminate com- pensatory time off for overtime worked Satur- days or unilaterally institute a required 6-day workweek, without prior notice to and bar- gaining with United Food & Commercial Workers Union, Local No. 1325, AFL-CIO- CLC. WL. WIL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. Wt wnri., if requested by the Union to do so, rescind the mandatory 6-day workweek and reinstitute the practice of permitting com- 0II DECISI()NS OF NAIO()NAL LABOR RELA-IONS B()ARD pensatory time off for overtime worked Satur- days. WE WIL. offer Louise Boutin immediate and full reinstatement to her former position or, if such position no longer exists, to a sub- stantially equivalent position, without preju- dice to her seniority or other rights and privi- leges previously enjoyed, and WE wni.l make her whole for any loss of earnings she may have suffered, plus interest. FAI L RIVER SAVINGS BANK DECISION STAT MINTI OF THE CAsF WILLIAM F. JACOBS, Administrative Law Judge: This case was heard before me on January 15, 1981, at Boston, Massachusetts. The charge was filed on June 2, 1980 and amended on July 10, 1980, by United Food & Commercial Workers Union, Local No. 1325, AFL- CIO-CLC, hereinafter called the Union. The order con- solidating cases,' amended complaint and notice of hearing issued July 18, 1980, alleging in pertinent part that Fall River Savings Bank, hereinafter called Re- spondent, violated Section 8(a)(l) and (5) of the National Labor Relations Act, as amended, by making unilateral changes in working conditions which resulted in the con- structive discharge of employee Louise Boutin. The answer denies the commission of any unfair labor prac- tices. All parties were represented at the hearing and were afforded full opportunity to be heard and to present evi- dence and argument. Briefs were filed by the General Counsel and Respondent. Upon the entire record, 2 my observation of the demeanor of the witnesses, and after giving due consideration to the briefs, I make the follow- ing: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Massachusetts corporation, maintains its principal office and place of business in Fall River, Mas- sachusetts, where it is engaged in the operation of a sav- ings bank. In the course and conduct of its business, Re- spondent regularly purchases materials and supplies which are transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts. Respondent in the course and conduct of its business receives gross annual revenues in excess of $500,000 and annually purchases ' Consolidated with Case I CA-17453. The charge in said case was filed on May 2, 1980, and alleged violations of Sec. 8(a)(1), 4), and (5) Case I-CA-17453 was settled prior to the hearing and the General Coun- setl's motion for severance was therefore granted Following the granting of the motion for severance the allegations no longer relevant were de- leted from the order consolidating cases, amended complaint and notice of hearing. 2 The General Counsel's unopposed motion to correct the transcript is granted and receives supplies and materials valued in excess of $50,000 directly from points outside the Conmonwealth of Massachusetts. Respondent admits and I find that it is and has been engaged in commerce within the meaning of the Act. 11. ITHl I ABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act.:' 11. IHEI UNFAIR I ABOR PRAC ICES A. Facts 1. Background On February 28, 1978, Local 1325 of the Retail Clerks International Association petitioned the National Labor Relations Board for certification as the bargaining repre- sentative for an appropriate unit of employees which in- cluded the individual involved herein. On April 28, 1978, a secret-ballot election was held which was inconclusive inasmuch as there were a number of challenged ballots cast which were sufficient to affect the outcome of the election. The number of challenges plus the fact that ob- jections were filed required an investigation into both matters and, following said investigation, the Acting Re- gional Director for Region I issued a Report on Objec- tions and Challenged Ballots recommending that all chal- lenges and objections be overruled. On September 29, 1978, the Board ordered a hearing to resolve factual issues raised by certain of the challenges and objections.4 On March 19, 1979, after 9 days of hearing, the hearing officer's report issued and on December 6, 1979, the Board issued a Supplemental Decision and Direction. s Pursuant to this Decision, certification of the Union as the exclusive collective-bargaining agent of the employ- ees in the unit issued on December 20, 1979. On December 26, 1979, the Union, through its presi- dent, John Barron, sent a letter to Respondent,6 citing the certification and requesting that it name a date on which to initiate bargaining. On December 28, 1979, Louis Spetrini, the Union's secretary treasurer, sent a second letter to Respondent requesting certain employee information which it needed in order to prepare a con- tract proposal. On January 7, 1980, 7 Barron sent to Re- spondent a list of topics which were to be discussed during bargaining. The list included hours and overtime as subjects for discussion. On January 10, 1980, Respondent sent the following reply to the Union: Dear Mr. Spetrini: Fall River Savings Bank, 250 NLRH 935 (1980). enfd 649 F 2d 50 (Ist Cir 1981) '238 NLRB 1371 (1978) 246 NLRB 831 ' All uni)on correspondence was addressed to Charles Murray, Re- spondent's president ' leretiafler, all dates are in I180 unless otherwise irldlated 912 FA L RIVER SAVINGS BANK I am in receipt of communications from you con- cerning the commencement of collective bargaining with your Union. As you know, it is the bank's position that the election conducted in April, 1978 was unlawful due to the Union's role of unlawfully using Supervisory Personnel to encourage and threaten employees into supporting the Union. The Fall River Savings Bank also maintains that the Assistant Branch Managers are supervisors whose votes cannot be counted. Without in any way waiving the bank's right to assert these defenses in any proceeding before the National Labor Relations Board and the Courts, and without conceding that your Union is the law- fully certified collective bargaining representative of our employees, we will be pleased to meet with you for purposes of discussing matters of mutual con- cern. If you desire to meet with us on this basis, kindly contact our collective bargaining consultant, Mr. Henry D. Marzilli 201 Wayland Avenue Providence, Rhode Island 02906 Tel. 401-272-5064 to set a convenient date. Very truly yours, Fall River Savings Bank /s/ Charles R. Murray President Thus, although Respondent advised the Union that it was taking the position that it had no obligation to bar- gain with the Union because the election was invalid, it also stated that it was willing to meet with the Union "for purposes of discussing matters of mutual concern." Meanwhile the Union filed a charge' (Case I-CA-17011) alleging Respondent's refusal to bargain. On January 15 Spetrini advised Respondent that the Union was ready and willing to enter into collective bar- gaining with it, and that he had scheduled a meeting with the Respondent's collective-bargaining consultant, Henry Marzilli, for January 22, terming the meeting, "the first collective bargaining session." Spetrini also ad- vised Respondent of his intention to submit a contract proposal at the forthcoming meeting. On January 17, Respondent advised Spetrini that Mar- zilli was authorized to meet with him subject to the terms set forth in the January 10 letter. On January 22, Spetrini met with Marzilli and asked him to enter into a recognition agreement. Marzilli replied that he was in no position to do so, that he would have to get back to Murray and then later to Spetrini. When Spetrini did not hear anything more from Marzilli, he wrote a letter to Murray on January 25 advising him of Marzilli's failure to keep his commitment to get back to him, informing him of his efforts to contact Marzilli and stating that the Union still represented Respondent's employees and de- sired both answers to its demands and the information re- quested earlier. Respondent never replied to the Union's 'JanuarS 4, 198o January 25 letter and, although Spetrini put in a number of telephone calls to Marzilli's office over the next few weeks, his calls were never returned. Meanwhile the refusal-to-bargain charge was pro- cessed. Complaint issued on January 29 and on March 17 the General Counsel filed directly with the Board a Motion for Summary Judgment. In a Decision and Order which issued on July 24 the Board found that Respond- ent had engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act and or- dered it to bargain with the Union.9 Respondent refused to comply with the Board's Order and petitioned the United States Court of Appeals for the First Circuit for review of the Board's Order. The Board cross-petitioned for enforcement of its order. On May 22, 1981, the court denied Respondent's petition and granted the Board's pe- tition for enforcement.'° 2. The unilateral change and constructive discharge Louise Boutin was hired by Respondent as a teller at its Swansea, Massachusetts, branch on March 30, 1976. Initially, she worked 5 days per week including Satur- day. In late August 1979, Boutin received a promotion to assistant branch manager" and was transferred to the Assonet branch. As assistant manager she continued to work a 5-day week and, as the practice was at the time for all employees, both tellers and assistant branch man- agers, if she worked Saturday she was entitled to another day off during the week or to be paid for the sixth day, at her option. Saturday work was voluntary although an employee who was scheduled for work on a particular Saturday was obligated to find a replacement and give 5 days' advance notice if she did not intend to work on her scheduled Saturday. Almost invariably throughout 1979 and 1980 Boutin opted to work a 5-day week rather than 6 days. During an exceptional period between September 29, 1979, and November 10, 1979, however, Boutin was required to work several 6-day weeks. She objected to working a 6-day week and voiced her dissatisfaction to her superior, Assistant Vice President and Personnel Of- ficer Silva. She explained that, if as assistant branch man- ager she was expected to work a 6-day week, she would rather be demoted to teller and work a 5-day week. Silva advised Boutin to stay on as assistant branch manager and take up the problem of the 6-day week with her im- mediate supervisor, Branch Manager Joanne Johnson. Johnson, when approached by Boutin, attempted to find a replacement for Boutin to work the next two Saturdays but was unsuccessful so that Boutin worked 6 days each of those 2 weeks. Thereafter, however, the schedule was worked out so that Boutin was again able to work 5-day weeks. In December 1979 Boutin's son became ill and the ill- ness was of such a nature that frequent trips to the doc- tor's office and to the hospital were necessitated. Special care was also needed at home because of his condition. Because of the added burden occasioned by her son's ill- 925() NLRB 938 ,"' 49 F 2d 50., upra " A,,islant branch managers scre determined hb the Board to have bhen nonsupervisor) emplosees Fall River Savings Bank. 246 Nl RB 831 913 DECISIONS ()F NAI'IONAL LABO()R REt ATIONS BO()ARD ness Boutin brought the matter to Johnson's attention and advised her that she did not want to work a 6-day week On February 28 a memorandum issued at the bank over Silva's signature requiring that either the branch manager or the assistant branch manager be present every Saturday. At a meeting shortly after issuance of this memorandum Boutin again advised Silva that she did not want to work a 6-day week. Silva replied that, if the branch managers and assistant branch managers could work things out by themselves, it would be all right. During this period Boutin continued to work a 5- day workweek which ordinarily included Saturdays. On May 5 Silva issued another memorandum doing away with the practice of granting a weekday off for those individuals working Saturdays. In effect, the memorandum instituted a change in hours requiring a mandatory 6-day workweek whenever an individual was scheduled to work on a Saturday. Cancellation of the midweek day off was made effective as of May 12. The effect of the change brought about by the May 5 memo- randum was to require Boutin to work two or more 6- day weeks per month. When Boutin received her copy of the memorandum she called Silva on the telephone and told her that she was resigning because she did not want to work a 6-day week. Silva replied that Boutin should submit her resig- nation in writing. On May 12 Boutin complied with Silva's request and submitted her resignation clearly stat- ing therein that she was resigning because of the change in working conditions which made overtime mandatory. The resignation was to be effective May 23. There were no further communications between Boutin and manage- ment concerning either her resignation or the reasons for it. B. The General Counsel's Position The General Counsel contends that Respondent was under a legal obligation to bargain with the Union re- garding its decision to implement the mandatory 6-day workweek. Inasmuch as the Union was certified by the Regional Director on December 20, 1979, as the exclu- sive collective-bargaining agent of Respondent's employ- ees in an appropriate unit to bargain on their behalf con- cerning wages, hours, and other terms and conditions of employment, there arose a duty on the part of Respond- ent to bargain with this duly elected representative of its employees. Respondent failed and refused to bargain with the Union despite its duty to do so under the certifi- cation and despite the Union's frequent attempts to get it to do so. As a result, complaint issued and the Board found Respondent in violation of Section 8(a)(5) and (1) of the Act. The Board's finding was ultimately upheld by the United States Court of Appeals for the First Circuit. It has been found that the number of hours which an employee is required to work is a subject about which an employer is obligated to bargain and that the duty to bargain attaches when a union has won an election whether or not it has yet been certified. Portsmouth Lumbher Trearing, Inc., 248 NLRB 1170 (1980). Similarly, it has been found that, when an employer unilaterally changes the hours of employment of its employees with- out consultation with the duly elected representative of those employees, the union, it is in violation of Section 8(a)(5) and (1) of the Act. Gaska Tape, Inc., 241 NLRB 686 (1979); J. P. Stevens & Co.. Inc., 239 NLRB 738 (1978); Wayne County Neighborhood Legal Services, Inc., 249 NLRB 1260 (1980). It appears, in accordance with the General Counsel's contention, and the law as stated in the above-cited cases, that Respondent is in violation of the Act. The General Counsel contends that, where unilateral action is taken by an employer under these circum- stances, the proper remedy is restoration of the status quo ante. In cases where unilateral changes were instituted in violation of Section 8(a)(5) and punishment meted out by the employer to employees who failed to comply with the new unilaterally imposed working conditions, the dis- ciplinary actions meted out, as well as the changes in the working conditions, were both found violative of Section 8(a)(5) and (1) of the Act. Murphy Diesel Company, 184 NLRB 757 (1970), affd. 454 F.2d 303 (7th Cir. 1971). Thus, not only were the new unilaterally instituted changes in working conditions ordered to be revoked but injuries incurred by employees due to disciplinary meas- ures taken as a result of the employer's attempt to en- force the unlawful rules were remedied. In a case involv- ing an employer's unilateral changing of overtime re- quirements from voluntary to mandatory with the resul- tant termination of two employees, it was determined that not only was the change in working conditions vio- lative of Section 8(a)(5) and (1) of the Act but also that the resultant terminations were similarly violative of the same section. The remedy ordered was restoration of the status quo ante; i.e., revocation of the new rule, as well as reinstatement of the discharged employees with full backpay. Wellman Industries, Inc., 248 NLRB 325 (1980), and Wellman Industries, Inc., 222 NLRB 204 (1976). I see no reason to differentiate between outright dis- charges and constructive discharges in 8(a)(5) cases any more than in 8(a)(3) cases. Thus, where an employer makes unilateral changes and requires employees to choose between accepting the unilaterally imposed changes and quitting their jobs, their subsequent quitting has been adjudged constructive discharges in violation of Section 8(a)(3) and (1). Johnson Electric Company, Inc., etc., 196 NLRB 637 (1972). If, in the instant case, Boutin had simply chosen to work the usual 5-day week instead of the new unilaterally imposed 6-day week and had been fired for it, her case would have been on all fours with cases cited above. She chose instead to quit rather than submit to the newly implemented, unlawful, unilat- erally imposed working conditions. I find that, unless Re- spondent's defenses, discussed infra, require a different conclusion, the General Counsel has proven a prima facie case. C. Respondent's Defenses Respondent's first defense is that the charge and the complaint should be dismissed because the General Counsel failed to show that the Union is a "labor organi- zation" with which the bank has a duty to bargain. 914 FAI.L RIVER SAVINGS BANK The short answer to this defense is that the Union was determined in Fall River Saviigs Bank, supra, to be a labor organization within the meaning of Section 2(5) of the Act. Respondent's second defense is that the charge and the complaint must be dismissed because the bank was not permitted to litigate the question whether the Union's certification was proper. The question of whether or not the Union's certifica- tion was proper was fully treated in Pall River Savings Bank, supra, by the Board and by the United States Court of Appeals in 649 F.2d 50, supra. Respondent's third defense is that the May 5, 1980, re- visions to the bank's Saturday work scheduling policy did not constitute a unilateral change in violation of the Act, Section 8(a)(1) or 8(a)(5). a. The revision was within the bankes normal procedure concerning Saturday work policies: This defense is partly based on Respondent's view of the facts wherein, in its brief, it contends that the memorandum of May 5, 1980, in which it revised its scheduling policy, was merely a variation of past practices and not a unilateral change in violation of Section 8(a)(5) and (1). I disagree, and find that it was a substantial change in unit employees' work- ing conditions to force employees scheduled to work on Saturdays to work a 6-day week instead of giving them the option of either taking a day off in the middle of the week and working a 5-day workweek or working a 6- day week with time-and-a-half for Saturday work. This very substantial change in working conditions amounted to a conversion from voluntary to mandatory overtime and if done unilaterally has been found to constitute a violation of the Act. WUllntan Industries, Inc., supra. Moreover, there is no basis in the record for assuming that some of the past changes made by the Employer would not have also been subject to negotiation before implementation and the law is clear that the Union's fail- ure on these occasions to challenge any unilateral change or to exercise its statutory right does not constitute a clear and unequivocal waiver of its rights for all time. Miller Brewing Company, 166 NLRB 831 (1967), affd. 408 F.2d 12 (9th Cir. 1969). Indeed, the facts in the instant case, as they refer to Boutin, ' indicate a sudden, abrupt change in her hours of employment whereby from May 1979 through May 1980 she worked a 5-day week, or less, every week except for the six times when unusual circumstances required her to give up her weekday day off. I find, therefore, that the change in working condi- tions made in pursuance of the May 1980 memorandum was substantial and not merely a variation of established past practices. ' b. The scheduling flexibilihty' contained Xwithin the bank 's policy and the revision of May, 5. 1980. mitigated its ejfi'cts so as to make the change too insubstantial to constitute an unlaiful unilateral change: Respondent's brief argues that " As rrllelted ll her per'rsonu l rerird, (Krp xsl 21 No olhcr ert l pl).ces' recoirds s ere offered foir collpsrlso, l I find AI): ' niurdaeL rl4,l ( omi Ul , ; Ora a l /l' . ,i , d /t aild oi /idil S.rnr i vo I nlriln' a, irr ,adu biang Cownpdnv it , 225 Nl RH 25 ( 19'7 . It/ie- land -Ivenu, Cotiaal is-t i i/oue, in. 22(l Ni RB I',i (I1'75):a . ind Aial/-[) ('asilzng (Cerpleratio. 221 Nl RB 1Oi illS) .I all iriled in Respuondnt'.i brief, learls hiinii/tshaible o1n the aiS historically Respondent has made exceptions to its sched- uling and that its work schedule has always been flexible. Respondent contends that the May 5 revisions did not alter the bank's policy of flexibility. The implication is that, if any employee felt that it could not work a 6-day week, '4 Respondent was willing to make allowances. This defense appears to me to be without factual sup- port, quite obviously an afterthought and in any case ir- relevant for clearly the May 5 memorandum established a break with the past which from that time on prevented employees who worked Saturdays from substituting a weekday off for Saturday work. Pointedly, the memo- randum did not say anything about flexibility or about exceptions being made. This was clearly a new proce- dure which said nothing about assistant branch managers being exempt from the new rule. On the contrary the memorandum stated specifically: "Beginning May 12, 1980, 'days off for Saturday work will not be permitted For the smooth operation of the branches, all managers, assistants and tellers must work their share of Saturdays. Please note that all Managers, Assistant Man- agers and Tellers must work at least one Saturday per month but may be designated to work more than one." Thus, the memorandum, far from inviting discussion on the subject, clearly indicates that the midweek day off no longer existed and that Saturday work, i.e., a 6-day workweek, was obligatory at least once and could "be designated" for more than 1 week per month. If manage- ment was attempting to indicate that "flexibility" was the theme of this memorandum or that "exceptions" would be made in hardship cases, I, myself, would not have read it that way. Rather, to me, it appears a cut-and- dried dictate,"' announcing a complete break with the past. But, if one were to assume, arguendo, that the May 5 memorandum really did not mean what it appears to say but rather that any employee, including Boutin, who wished to continue to work a 5-day week instead of 6 only had to say so, why then when Respondent received Boutin's resignation did not Silva tell her that the rule was flexible and that an exception could be made in her case. Boutin's resignation was abundantly clear: As of the memo we received on Friday, overtime is nosw mandatory and I do not wish to work a six- day week. When Silva received this note, if in fact the 6-day week was not mandatory she should have disabused Boutin of " Respondried's hrief emphasize, the Saturda) oirk Issue Ahecn in fact the 5-da. ,s vo eelrk. is the real problem here For a full ecar prior to Ihe isslarle iif the Ma! 5 memrorandum. rBoutin slrrked almost ever) Satur- lda 'I he memoranlldulm did not change that suhstantially W.hat it did Ihat caulsdc the greatest problem uas to do awiay uih the midueek day off F'his iatilrcl.iiillu of tinie off suhstarntialil affected uilp employees. nota- hl Boutirin t I'he listing of tellers had nothinig io do uith the rule Ihat either the lialalgt'r iir the assltllwtt manager. either one. had to he present on ;aiyv g eri Salurdal; Arid tie fact that Sue Aletieda filled mi for Boutin after s1hie Jir1i tllltl.cd her rlsglnlatilnrl callit hble legitiiatel relied on as mr'ltl- ig 1h111t i;ad BoItlill no rresigned she co1uldl 1' h.s hiad Almrneida or some other liitie lik' tier place ;'irs Silurda.s Ihe 'h rglurnclr iI the facre of the re..olrl . c.'illot be ilki.ll rCItrlUsIt 915 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her supposed misconception and told her that she did not have to work 6 days. In short, the May 5 memorandum left no room for flexibility and Silva's reaction to Bou- tin's resignation, namely, silence, proved it. There is, however, in addition, another consideration here. Respondent implies that Boutin was at fault and had waived her right to exceptional consideration by not pursuing the matter to its ultimate before submitting her resignation. This begs the question, for a majority of em- ployees in the unit of which Boutin was a member voted to be represented by the Union concerning wages, hours, and working conditions. They did not reject representa- tion. This being the situation, Respondent cannot, after refusing to bargain in violation of Section 8(a)(5) and (1) of the Act with Boutin's lawfully designated agent for purposes of collective bargaining, now be heard to say that she waived her rights because she failed to bargain on her own behalf. I conclude, in short, that the unilateral change institut- ed by Respondent pursuant to its memorandum of May 5 was not too insubstantial to constitute an unlawful unilat- eral change. I also find that Boutin was not required under the circumstances to pursue the matter any further than she did and her failure to do so was not a waiver of her rights. (c) The May 5, 1980, revisions amounted to no change as to managers and assistant managers: Respondent contends that the revisions contained in the May 5 memorandum reflected only its overriding policy that either a manager or assistant manager had to be present at all times and that since Boutin had worked six 6-day weeks of 37 weeks since the "day-off' policy commenced and it was not expected that her share would increase under the re- vision, the revision amounted to no change at all and was irrelevant insofar as it affected her and other assist- ant managers and managers. In answer to this particular defense it need only be re- iterated, as discussed above, that no offer of a flexible schedule was offered by the May 5 memorandum or by Silva when she received Boutin's resignation. Indeed, all credible evidence clearly indicates that no flexibility to the newly instituted rule was contemplated. With that finding as the starting point, if one were to consider the fact that Boutin in 1979 worked from the week ending May 25 to the end of the year every Saturday and took off I day in the middle of each week, except for 4 weeks because of exceptional circumstances, it appears quite ap- parent that, having worked 26 5-day weeks out of 30, Boutin can be considered to have been on a 5-day sched- ule throughout the latter half of 1979. Further, if one were to consider the fact that Boutin in 1980 worked from the first of the year to the date of the memorandum every Saturday and took off one day in the middle of each week, except for 2 weeks because of exceptional circumstances, it is conclusively shown that, having worked 17 5-day weeks out of 19, Boutin can be consid- ered to have continued on a regular 5-day schedule until May 5, when it was abruptly and unilaterally changed to a 6-day workweek. Thus, Respondent's argument that the May 5 revisions amounted to no change as to assist- ant managers is transparentally an exercise in sophistry hardly worthy of serious consideration. (d) The Union's failure ever to request bargaining over the revision waived any union claim that the bank refused to bargain: Respondent cited several cases"6 to support its contention that "for a union to bring an unfair labor practice claim that an employer has refused to bargain over an issue and instead unilaterally has changed em- ployment conditions, it must have first requested that the employer bargain over the change." These cases, howev- er, are clearly inapposite for, in each case cited, the em- ployer had recognized the union involved and was nego- tiating with it. By so doing, the employer, in each situa- tion, effectively put the union on constructive notice that it would be amenable to negotiations over any changes in working conditions contemplated. In the instant case, although the Union requested bargaining and specifically advised the Employer by letter that hours of employ- ment was one of the subjects about which it wished to negotiate, Respondent refused to recognize the Union as the exclusive bargaining representative of its employees and rejected all efforts by the Union to obtain recogni- tion and to negotiate. Inasmuch as Respondent specifical- ly refused to recognize the Union as the exclusive bar- gaining representative and refused to bargain with it con- cerning conditions of employment of its employees in violation of the Act, it cannot now claim that the Union waived its rights. It would certainly have been a point- less exercise in futility for the Union to have requested negotiation concerning the unilateral change in hours when Respondent had already given notice that it did not consider the Union the exclusive bargaining repre- sentative of its employees for any purpose and had re- jected all attempts by the Union to undertake a bargain- ing relationship. I find, contrary to Respondent's posi- tion, that the Union did not waive any of its rights by failing to request bargaining over the specific issue of the unilateral change resulting from the issuance of the May 5 memorandum. Respondent's fourth defense is that Boutin's resigna- tion was a voluntary quit, not a constructive discharge. (a) There is no evidence whatsoever of any antiunion mo- tivation by the bank or of any desire to force the discharge of Louise Boutin: The simple answer to this defense is that case law on the subject is clear; i.e., a change in work schedules made unilaterally is a violation of Section 8(a)(5) and (1) even in the absence of a showing of bad faith. Wellman Industries, Inc., supra; Florida Steel Corporation, 235 NLRB 941 (1978), affd. in relevant part 101 LRRM 2671 (4th Cir. 1979). (b) The few Board Decisions concerning 8(a)(5) construc- tive discharges not prosecuted under Section 8(a)(3) estab- lish a standard requiring that a unilateral change consti- tutes a flagrant contract repudiation to turn a quit into a constructive discharge: Respondent, in support of the above contention, cited Film Projects, Inc., etc., 231 NLRB 1370 (1977). Although the Board in that case did find that the employer at one point adopted the contract of its predecessor and applied the going wage rate con- " the City ltopiral of'E ast Liverpool Ohio. 234 NLRB 58 (1978); Medt- enrrer. Mid-South tlorpiral, 221 NL RB 67() (1975). Globe-Union. Inc. 222 Nl.RB 1081 (1976): .4miroan Butlin,'. Inc., 164 NLRB 1055 (1967); Ciri- Zcnls National Rank of Wtilllar, 245 N. RH 389 (1979) 916 FAI.I. RIVER SAVING(S HANK tained therein to its employees, the later unilateral change in the wages paid to said employees had nothing to do with the earlier contract, but was in and of itself the basis for the finding of a violation. The mention of the earlier contract served merely to indicate the exist- ence of a bargaining relationship between the labor orga- nization and employer in that case. In short, whether or not a contract, written, oral, or implied exists is not the measure of the violation. Rather, it is the sudden and abrupt unilateral change in working conditions initiated by the employer without prior consultation with the ex- clusive collective-bargaining representative of the affect- ed employees that marks the touchstone of the violation. To hold otherwise would result in punishing only those employers who signed collective-bargaining agreements and later breached them while ignoring employers like Respondent who refuse to recognize a lawfully elected collective-bargaining representative and reject in toto the collective-bargaining principle in favor of making only unilateral decisions in its day-to-day management of working conditions. That is hardly what effectuation of the National Labor Relations Act requires and I reject Respondent's position on this score. As far as flagrancy is concerned, the unilaterally instituted change in work- ing conditions instituted by Respondent herein, the change from voluntary to mandatory overtime, is clearly flagrant"7 enough to require a remedial order. Wellman Industries. Inc., supra. (c) Louise Boutin ' resignation does not constitute a con- structive discharge by the bank even if the May 5, 1980, re- vision was a unilateral change violative of Section 8(a)(5) of the Act: This defense is based on the proposition that, even if the change brought about by the issuance of the May 5 memorandum were violative of Section 8(a)(5), the revision in Boutin's working conditions was too in- substantial to make her resignation into a constructive discharge for which Respondent is responsible. In my opinion the change in Boutin's working condi- tions whereby she was forced to work a 6-day week was no minor matter. She had fought against the 6-day week over a long period of time, and having that day off in the middle of the week in order better to care for her child was extremely important to her. Her objection was not in any respect frivolous and her decision to quit her job was of very serious import. I do not believe that a unilateral change in working conditions must result in making it impossible for an employee to work before an 8(a)(5) violation is made out or before a resultant quit is considered tantamount to a constructive discharge. This is not the criterion used when adjudging 8(a)(3) con- structive discharges nor should it be so adjudged under Section 8(a)(5). It is quite obvious that Boutin was put at a tremendous personal disadvantage by the unilateral change instituted by Respondent and had she had the '? Respondent cites John Hutton Corp. d/'ha AKI/.M'U Radio 4/I:'M. 213 NLRB 71 (1974). for Ihe proposition Ihat. where a unilateral change in hours of work is made. and an affected emplo)ee quits as a result. it is not considered a constructive discharge here there exists no compelling reason which precluded that employee from 'sorking the neu schedule I find the cited case inapposite because of the seseral other faciors relied on by the Board in that case which are not present here and hbeause, in an), event, In the instant case Boutin's reaston for not ssanting to soirk a 6-day week, i e a sick child. is. in my opinion. compelling support of the representation to which she was entitled she might well have remained with Respondent as a trusted and valuable employee. Respondent argues that Boutin worked between II and 16 percent of her weeks, 6 days per week. Without conceding this to be the case, working I or 2 weeks out of 10 on a 6-day schedule is a far cry from working a 6- day week every other week, and for that reason the ar- gument holds little persuasiveness. Respondent, in its brief, argues: "By accepting the promotion to assistant manager, she had already substantially increased her 6- day weeks despite the 'day off policy, and there is no reason to be certain that the revision would add more." This statement, the record indicates, is not true for throughout 1980, from January I through the date of her resignation, Boutin worked only one 6-day week. Every week except for that single exception Boutin worked 5 days or fewer, and in each of those weeks she worked Saturday and had a day off during the week. i The memorandum of May 5 was absolutely clear. There would be no further weekdays off and Boutin as an as- sistant branch manager would be expected to work her share of Saturdays, Thus, from the memorandum a cer- tain number of 6-day weeks would be required of her. Respondent's argument is purely an afterthought con- cocted obviously for purposes of litigation. Similarly, Re- spondent's argument that "Boutin quit without attempt- ing to give the bank the opportunity to adjust the system to her needs" to give the bank simply flies in the face of the facts. Whereas the employees in the cases'9 cited by Respondent quit their respective jobs without advising their employers of the reasons they were quitting and thus gave them no opportunity to correct the situation which grieved the employees, in the instant case Boutin not only clearly spelled out that she was quitting because of the newly imposed 6-day workweek but also gave Re- spondent 2 weeks' notice during which it could have ad- vised her that she would not be required to work 6 days. During that 2-week period Respondent could have given Boutin all of the assurances which it belatedly included in its brief to me. It never did so, quite obviously be- cause it never intended to offer Boutin any special con- sideration but on the contrary intended to force her along with everyone else in the unit to abide by the changes in working conditions unilaterally instituted through the issuance of the May 5 memorandum. To summarize the above, the Union was certified as the exclusive collective-bargaining representative of Re- spondent's employees on December 20, 1979. Rather than bargain in good faith with the duly elected certified bargaining representative of its employees, however, it rejected the principle of collective bargaining in viola- tion of Section 8(a)(5) and (1) of the Act, denied recogni- tion to the Union, and refused to meet with it in order to negotiate toward a collective-bargaining agreement. As of the date of the hearing, January 15, 1981, over 2 years later, the employees in the unit were still being denied the privilege of representation to which they were enti- " Restp Exh 2 ' .A\e' C'ubar Iumbh'r anid Supplh Co . 203 NL.RH 937 (1973), ( ,turiku, tlardgare I, . 243 NL RH (hi3 (19'9) 917 I)I'ItSIO)NS (iF NA'I I()NAI. I AOR RILI.ATIIf)NS B()ARI) tied. Throughout this period Respondent completely controlled the working conditions of the employees in the unit and on May 5. 1980. drastically changed the working conditions of the employees in the unit by uni- laterally eliminating compensatory time off for overtime worked on Saturdays and requiring paid Saturday over- time, thus converting a voluntary overtime schedule to a mandatory overtime schedule, without giving prior notice to or bargaining with the Union. As a result of the hardship visited upon one of the employees in the unit, Louise Boutin, as a consequence of the unilateral change. she was forced to quit her job with Respondent. By re- fusing to recognize the Union and bargain with it con- cerning the changes in schedule and unilaterally institut- ing these changes, Respondent did so at its peril. By denying Boutin and other employees their lawful right to representation, Respondent effectively denied them any benefits to be derived from such representation. Al- though it would be speculative to consider what the out- come of negotiations might have been had Respondent bargained with the Union in good faith concerning the possible changes in scheduling, it would appear, in light of Respondent's oft-repeated assertions throughout the hearing and in its brief that it was flexible on the issue, that there was the definite possibility that a solution to the problem could have been negotiated without the ne- cessity of instituting a program of mandatory overtime. Perhaps exceptions for hardship cases could have been negotiated. This we will never know. We do know, however, that it was as a result of Respondent's adamant refusal to recognize and bargain with its employees' cer- tified representative that good-faith bargaining was never given a chance. I believe that the cause of justice could better be served by finding here that Boutin's resigna- tion, which occurred as a direct result of Respondent's unlawful unilateral institution of the 6-day workweek, was a constructive discharge and by issuing an order re- medying that wrong than by permitting Respondent to violate the Act with impunity by rejecting the concept of collective bargaining, denying to its employees the rights and privileges of representation, and unilaterally making changes in working conditions to the detriment of these employees in total disregard of their rights as guaranteed by the Act. CONCI.USIONS Or LAW 1. Fall River Savings Bank is an employer engaged in conmerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food & Commercial Workers Union, Local No. 1325, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and part-time employees em- ployed by Respondent in its offices at 141 Main Street, Fall River, Massachusetts, 397 Rhode Island Avenue, Fall River, Massachusetts, 782 Main Road, Westport, Massachusetts, 63 South Main Street, Assonet, Massa- chusetts, County Street, Somerset, Massachusetts, and K- Mart Plaza, Swansea, Massachusetts, but excluding the president, vice presidents, assistant vice presidents, treas- urer, assistant treasurers, branch managers, guards and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 20, 1979, the above-named labor organization has been and now is the certified and exclu- sive representative of all employees in the aforesaid ap- propriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally eliminating compensatory time off for overtime worked Saturdays and unilaterally institut- ing a required 6-day workweek, without prior notice to or bargaining with the Union, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By constructively discharging Louise Boutin by forcing her resignation because of the unilateral institu- tion of the 6-day workweek without first notifying and bargaining with the Union, Respondent violated Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THIi Ri MF DY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent be ordered to cease and desist from unilaterally instituting a mandatory 6-day workweek for employees in the bargaining unit without notifying and bargaining with the Union about such matters. In addition, it will be recommended that, if requested by the Union to do so, Respondent rescind the unilateral- ly instituted mandatory 6-day workweek and reinstitute the practice of permitting compensatory time off for overtime worked Saturdays. Finally, it will be recommended that Respondent, having illegally constructively discharged Louise Boutin, offer her full and immediate reinstatement, with backpay and interest thereon to be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).20 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER21 The Respondent, Fall River Savings Bank, Fall River. Massachusetts, its officers, agents, successors, and as- signs, shall: "See. generaills. sis Plumbtrig 8i l ating C(, I 118 N.RB 716 (1h62) i' In (h, ce cnt no excepiionIs are filed as pro, ided b Sec 10(12 46 of iht Rules alld Reguilatioirns of the National lhabor Relation, Roard. the filndinlgs concltsi,ol,,i and recoLtmelnded Order herein shall, as pro',idcd in Sec 10)2 48 of tilthe Rules .and Regula.tiims, he adopted hb the Board illld hetorllTe its dilldtilgI , o IIJILiions. nid O()dr, arid ill obtiec llon t.hertto sh.all hbe d1'Cltd vNaixetl fot all pirp(-se F AI I RIVE R SA VIN(S BANK 1. Cease and desist from: (a) Unilaterally eliminating compensalory time off fior overtime worked Saturdays and unilaterally instituting a mandatory 6-day vorks eck, without prior notice to and bargaining with the United Food & Commercial Work- ers Union, I ocal No. 1325, AFL CIO-CLC. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaran- teed by Section 7 of the Act. 2. Take the folloswilg arfirmaitie action necessary to effectuate the policies of the Act. (a) If requested by the Union to do so rescind the mandatory 6-day sworksweek and reinstitute the practice of permitting compensatory time off for overtime worked Saturdays. (b) Offer to Louise Boutin immediate and full rein- statement to her fornier position or, if such position no longer exists, to a substantially equivalent position, with- out prejudice to her seniority or other rights and privi- leges, and make her whole for any loss of earnings she may have suffered in the marner set forth in the section hereof entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its various locations22 copies of the attached notice marked "Appendix." 2: Copies of said notice, on forms provided by the Regional Director for Region 1. after being duly signed by the appropriate representative of Respondent, shall be posted by Respondent immedi- ately upon receipt thereof, in conspicuous places, includ- ing all places where notices to employees are customar- ily posted, and be maintained by Respondent for 60 con- secutive days thereafter. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writ- ing. within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. `2 SC,. Ic.ationT, listed in (he Illit tiiitsription, pir 3. Concluslns, of I av, hereit :' IIl the ct'lt Ihat this Order is eniforerd h} a Judgmenl of a Unired Sitae Ciolrt of Appeals. the ,.,ords, in Ihe notice reading "'''osted h) ()rder of the N.iliollal Lahbor Relatrins Board" shall read "Posted Pursu- nlo to a; Judgment orf a tUnited States C(iurt of Appeals Efitorcing an ()riter of the Nitiorla I h.aeor ReLilioi(I, ohard