Union Savings & Trust Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union Savings & Trust Company and Office and Professional Employees International Union, Local 17. Case 8-CA- 11871 May 14, 1979 DECISION AND ORDER BY MIlMEI:RS PNIlI 1O, MURPIIY, AND TRUITSI)ALI: Upon a charge filed on April 24. 1978, and an amended charge filed on June 8. 1978, by Office and Professional Employees International Union, Local 17, herein called the Union, and duly served on The Union Savings & Trust Company, herein called Re- spondent. the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 8, issued an amended complaint' on Novem- ber 24, 1978, as further amended on December 4, 1978, alleging, inter alia, that Respondent had en- gaged 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 Na- tional Labor Relations Act, as amended. Copies of the complaint and notice of hearing were duly served on the parties. With respect to the unfair labor practices, the com- plaint, as amended, alleges in substance that on March 29, 1978, following a Board-conducted elec- tion won by the Union on March 22, 1978, in Case 8- RC- 11200, the Union was duly certified as the exclu- sive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;2 and that, (1) commencing on or about March 23, 1978, and at all times thereafter, Respondent has refused, IThe Regional Director issued the original complaint in this proceeding on June 16. 1978, a copy of which, along with the notice of hearing and the amended charge, was duly served on the parties, That complaint alleged. inter alta that Respondent interfered with, restrained. and coerced its em- ployees in that it unlawfully prohibited employees from engaging in solicita- tion on behalf ofa labor organization on Respondent's premises during their nonworking time: restricted employee access to the premises during their nonscheduled hours of work: and harassed employees and engaged in sur- veillance, or conveyed the impression of engaging in surveillance. in viola- tion of Sec. 8(a)(1) of the Act. he complaint also alleged that Respondent terminated employee Timothy Downs on April 18. 1978. and laid off em- ployee Larry Ayers on April 19. 1978, in violation Sec. 8(a)3) of the Act. On November 16. 1978, the Regional Director for Region 8 approved a bilateral partial settlement agreement remedying the ahove-mentioned alleged viola- tions of Sec. 8(a)( I) and (3) of the Act. Respondent was required to post a notice informing its employees that it would not interfere with, restrain, or coerce them in the exercise of their rights under the Act and that it would make whole the above-named employees for any loss of earnings they had suffered as a result of their termination and layoff. 2 Official notice is taken of the record in the representation proceeding, Case 8-RC- 11200. as the term "record" is defined in Secs. 102.68 and 102.69 (g) of the Board's Rules and Regulations. Series 8. as amended. See LTV Electrosysiemrs, Inc.. 166 NLRB 938 1967),. enfd. 388 F.2d 683 4th Cir. 1968); Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969): Inter.ype Co, v. Penello, 269 F.Supp. 573 (D.C.Va. 1967): Follett Crp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 19681: Sec. 9(d) of the NLRA. as amended. and continues to date to refuse, to meet and to bar- gain collectively with the Union as the exclusive bar- gaining representative. although the Union has re- quested and is requesting it to do so; (2) on March 23, 1978, Respondent changed, unilaterally without noti- fication to or consultation with the Union, the daily starting and quitting worktimes of its three computer programers and changed the time and duration of the lunchbreak of one computer programer: (3) on April 14, 1978, Respondent ceased, unilaterally without no- tification to or consultation with the Union, soliciting or accepting new customer service accounts, resulting in the elimination of two computer programer jobs; and that by the acts described in (2) and (3) above, Respondent altered the existing wages. hours, and terms and conditions of employment of employees in the appropriate unit. On June 23, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Thereafter, on December 4 and 15. 1978, and Janu- ar I 1. 1979, Respondent filed further answers to the amendments to the complaint, admitting in part and denying in part the allegations in the complaint and its amendments.' On January 22. 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 6. 1979, the Board issued an Order transferring proceed- ing to the Board and Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent did not file a re- sponse to the Notice To Show Cause, and, therefore, the allegations in the Motion for Summary Judgment stand uncontroverted. 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: Ruling on the Motion for Summary Judgment Respondent admitted, inter alia, that a majority of Respondent's employees designated and selected the Union as their representative for the purposes of coi- lective bargaining and that the Union was certified as the exclusive collective-bargaining representative of employees in the unit: that the Union requested it to bargain with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment: that it refused to recognize, meet with, and 3 On January 11. 1979. Respondent filed an amended answer to the amended complaint admitting that the Union was a labor organization. 242 NLRB No. 27 176 THE NION SAVIN(GS & IRUST COMPANY to bargain with the Union:4 that without notification to or consultation with the Union it unilaterallk changed the daily starting and quitting worktinme oft three computer programers. and the lunchtime of one of said computer programers: and that it unilaterally ceased soliciting or accepting new customer service accounts resulting in the elimination of two computer programer jobs.5 Respondent denied the appropriate- ness of the unit and also denied that the Union was the exclusive bargaining representative: that it altered the existing wages. hours, and terms and conditions of employment of unit employees: that it interfered with, restrained, or coerced its employees in the exer- cise of their Section 7 rights: and that it engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. Respondent contends, inter alia, that the Regional Director erred in certifying the Union because the unit found appropriate for bargaining is. in fiact. inap- propriate. The General Counsel contends that. in view of Respondent's admissions, there are no issues of fact which require a hearing or which were not previously presented to and decided bh the Board in the underlying representation proceeding. and Re- spondent is foreclosed from raising the issue of the appropriateness of the unit in this proceeding. The General Counsel also contends that. although Re- spondent denied the allegation of paragraph 7 of the amended complaint that the Union was the exclusive representative of the employees. in its December 4 answer to the amended complaint it admitted para- graph 6 of that complaint that the Union was dul designated and certified as the exclusive representa- tive of the employees, and that this establishes all facts necessary to support the allegation that the Union was the properly designated majority repre- sentative. Respondent, as noted supra, did not file a response to the Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Review of the record herein, including the record in Case 8-RC- 11200. reveals that on February 24, 1978. following a hearing, the Regional Director for Region 8 issued his Decision and Direction of Election. wherein he found appropriate a unit of all employees at Respondent's operation center in Warren. Ohio, excluding professional employees. guards and super- visors as defined in the Act, and all other employees. On March 17. 1978, the Board denied Respondent's 4 In its answer to the original complaint Respondent denied the allegation that it refused to recognize, meet with, or bargain ith the l:nion hut in its answer to the amended complaint it admilled the allegation In its answelis to the original complaint and to the amended complaint Respondent denied the allegallons that it unilaterallk I) changed existing hours of employment of unit employees, and 121 ceased to accept new cu- tomer service accounts. but in its December 15 answer to he .Imendmenl uII the amended complaint it admitted these allegations. request for review as raising no substantial issues war- ranting review. Subsequently. on March 22. 1978. a majority of Respondent's emplovees in the appropri- ate unit designated the Union as their representative for the purposes of collective bargaining with Re- spondent. On March 29. 1978. the Regional Director ft)r Region 8 certified the Union as the exclusive col- lective-hargaining representative of the employees in the unit. It thus appears that Respondent is attempt- ing in this proceeding to relitigate issues relating to the appropriateness of the unit and the exclusive rep- resentative status of the Union which were fully liti- gated and finally determined in the underlying repre- sentation proceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstIances a respondent in a proceeding alleging a volation of Section 8(a)(5) is not entitled to relitigate issues ,which were or could have been litigated in a prior representation proceeding.' The issues raised by Respondent in this proceeding as to the appropriateness of the unit and the exclusive representative status of the Union were or could have been litigated in the prior representation proceeding. and Respondent does not offer to adduce at a hearing an\ newly discovered or previousi\ unavailable evi- dence. nor does it allege that an\ special circum- stances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that these issues are not properly litigable in this unfair labor practice pro- ceeding. Accordinl., we grant the Motion for Sum- marN Judgment in this respect. As noted. lq)ra, Respondent. in its December 15 answer to the complaint. as amended. admitted that it unilaterall chainged the dail starting and quitting worktime of its three computer programers and the time and the duration of the lunchbreak of one com- puter programier and that it ceased to solicit or to accept new customer service accounts resulting in the loss of two computer programer jobs, all without no- tification to or consultation with the Union: but it denied that by this conduct it altered the existing wages. hours, and terms and conditions of employ- ment of unit employees. Thus, the factual allegations that Respondent unilaterally altered the terms and conditions of employment without notification to or consultation with the Union stand admitted. This conduct constitutes a breach of the duty to bargain with respect to a mandatory subject of bargaining; i.e.. terms and conditions of employment. N. L. R. B. v. Betnne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736 (1962). Thus, we agree with the General Counsel's contention that Respondent's uni- ISee Pirurgh Plae Gla.csi (,o. v. .L. R.. 313 U.S. 146. 162 11941): Rules and Regultions of the Board. Secs 102.67(I and 102.691c). 177 DIE (ISI()NS OF N IONAI ILABOR RELATIONS BOARD lateral change in the hours of work and of' the lunch- break of its computer programers without notifying or consulting with the Union violated Section 8(a)(5) of the Act.7 We also agree with the General C('ounsel's contention that Respondent's unilateral action, with- out prior notice to or consultation with the Union, in discontinuing its practice of soliciting or accepting outside customer accounts resulting in the elimination of two computer programer jobs also violated Section 8(a)(5) of' the Act. Accordingly. we also grant the General Counsel's Motion for Summary Judgment on these allegations. On the basis of the entire record, the Board makes the fillowing: FINI)IN(;S OF FA('I I. III BSINFISS ()1 RISP()NI)IN I Respondent is engaged in the provision of commer- cial trust and general banking services. Respondent's answer to the complaint in this proceeding admitted that in the course and conduct of its business opera- tions it received gross revenues in excess of $500,000 and annually transferred funds and checks fior pur- poses of collection, valued in excess of $50,000, di- rectly out of State, and that it was, and has been at all times material herein, an employer engaged in com- merce within the meaning of' Section 2(6) and (7) of the Act. We find, on the basis of the foregoing, that Respon- dent 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. 1. f1111 IAB()R ()OR(ANIZATIO()N INVO()I.VI) Office and Professional Employees International Union, Local 17, is a labor organization within the meaning of Section 2(5) of the Act. III. TIlF UNFAIR LABOR RA('I'I('IS A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining within the meaning of Section 9(b) of the Act: 'This conduct occurred on March 23, I das after the election was held. and 6 days prior to he certification of the Union on March 29. It is well established that an employer violates Sec. 8(aX5) and ( I ) when, without first consulting with the union, it makes changes in terms and conditions (of em- ployment during the period fillowing an election. prior to the eventual certi- ficalion of the union. Mike O'Connor (hevrolet-BuickG(M( (o., In., et a,I 209 NLRB 701 (1974). All employees at Respondent's operation center located at 2650 Weir Road, Warren, Ohio, ex- cluding all professional employees, guards and supervisors as defined in the Act, and all other employees. 2. The certification On March 22, 1978. 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 8. designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargain- ing representative of the employees in said unit on March 29, 1978, and the Union continues to be such exclusive representative within the meaning of' Sec- tion 9(a) of' the Act. B. The Rcq'ues To Bargain and Re.spondent's Re/i.sal ('ommencing on or about April 24, 1978, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collec- tive-bargaining representative of all the employees in the above-described unit. Commencing on or about April 27. 1978, and continuing at all times thereafter to date, Respondent has refused, and continues to re- fuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Further, commencing on or about March 23, 1978, Respondent, without notification to or consultation with the Union, unilaterally changed the daily start- ing and quitting worktimes of three computer pro- gramers and changed the time and duration of the lunchbreak of one of said computer programers. In addition, on or about April 14, 1978, Respondent, without notification to or consultation with the Union, unilaterally ceased soliciting or accepting new customer service accounts, resulting in the elimina- tion of two computer programer jobs. Accordingly, we find that Respondent has, since March 23, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, 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. IV. 1tF EFFEiCT OF IHE UNFAIR L.ABOR PRAC(II(TS UPON (COMMER(CE The activities of Respondent set forth in section III, above. occurring in connection with the opera- 178 IHE. NION SAVINGS & RI S COMPANY tions described in section I, above. have a close, inti- mate, and substantial relationship to trade. traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. ri] It RiMI: )Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and, if an understanding is reached. embody such understanding in a signed agreement. Further, since we have found that Respondent vio- lated Section 8(a)(5) and (I) by unilaterally changing the daily hours for starting and quitting work and the lunch period and eliminating jobs by ceasing to solicit or accept new customer service accounts, without bargaining with the Union, we shall order that Re- spondent cease and desist from such activity. and re- store the status quo ante by reinstating the hours of' work as they existed on or about March 23. 1978. and restore its practice of soliciting or accepting new cus- tomer service accounts as it existed on or about April 14, 1978, and fulfill its statutory obligation to bargain. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Pouhltr Company, Inc., 136 NLRB 785 (1962); Commerce Compan dl/h/a Lamar Ilot'l. 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964). cert. denied 379 U.S. 817: Burnett Con- struction Company, 149 NLRB 1419. 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCI.tSI(NS OF LA"; 1. The Union Savings & Trust Compan) is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees International Union, Local 17. is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed at Respondent's opera- tion center located at 2650 Weir Road, Warren, Ohio. excluding all professional employees, guards and su- pervisors as defined in the Act, and all other cmplo\- ees. constitute a unit appropriate for the purposes of' collective bargaining within the meaning of Section 9(b) of' the Act. 4. Since March 29. 1978, the above-named labor organization has been and now: is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of' collective bargaining within the meaning of Section 9(a) of the Act. 5. B refusing on or about April 27. 1978. 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 Re- spondent in the appropriate unit. Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of' the Act. 6. B unilaterally changing, without notification to or consultation with the Union, the daily starting and quitting worktimes of computer programers. and the time and duration of' the lunchbreak of' one of said colmputer programers: by unilaterallx, without notifi- cation to or consultation with the Union, ceasing to solicit or to accept new customer service accounts re- sulting in the elimination of computer programer jobs: and thus bh altering the existing wages, hours, terms. and conditions of employment of unit employ- ees. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of' the Act. 7. B the aforesaid refusal to bargain, Respondent has interfered Awith. restrained, and coerced. and is interfering with. restraining, and coercing. employees in the exercise of' the rights guaranteed them in Sec- tion 7 of the Act. and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I ) of the Act. 8. The afiOresaid 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 the Respondent. The Union Savings & Trust Company. Warren, Ohio. its officers. agents. successors. and assigns. shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pa>. wages. hours, and other terms and con- ditions of emploxment with Office and Professional E:mplosees International Uinion. Local 17, as the ex- clusive representative of' its employees in the lfollow- ing appropriate unit: 179 I)t('EISIONS Of NAII()NAL l.ABOR RELATIONS BOARD All employees at Respondent's operation center located at 2650 Weir Road. Warren. Ohio, ex- cluding all professional employees, guards and supervisors as defined in the Act, and all other employees. (b) Unilaterally changing, without notification to or consultation with the Union, the daily starting and quitting worktimes of employees. and the time and duration of their lunchbreaks. (c) Unilaterally. without notification to or consul- tation with the Union, ceasing to solicit or accept new customer service accounts. (d) Altering the existing wages. hours, and terms and conditions of employment of' employees in the appropriate unit, without notification to or consulta- tion with the Union. (e) 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: (a) Reinstate the hours of work for unit employees as they were on or about March 23. 1978, and restore its practice of soliciting or accepting new customer service accounts as it existed on or about April 14. 1978. (b) 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. (c) Post at its operation center, 2650 Weir Road, Warren, Ohio, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms pro- vided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- I 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." dent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notit the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPEN )IX Noll 11( To EI.'YI:iiS PoSI EI) BY ORDER OF I[IE NA I I()NAI. LABOR RFIL.AI(NS BOARD An Agency of the United States Government Wl. WIL. NoI refuse to bargain collectively concerning rates of pay. wages, hours, and other terms and conditions of employment with Office and Professional Employees International Union. Local 17, as the exclusive representative of the employees in the bargaining unit described below. Wi \WIlL.. NOI unilaterally change the terms and conditions of employment of our employees. WI Wi.l. NOT unilaterally., without notification to or consultation with the Union, cease solicit- ing or accepting new customer service accounts. Wi: Wl.l. NOI 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. WLE WIi.i reinstate the hours of work for unit employees as they were on or about March 23, 1978, and wil wii.[. restore our practice of solicit- ing or accepting new customer service accounts as that practice existed on or about April 14, 1978. WVi wlI.l., upon request, bargain with the above-named Union. as the exclusive representa- tive of all employees in the bargaining unit de- scribed 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 at Respondent's operation cen- ter located at 2650 Weir Road, Warren, Ohio, excluding all professional employees, guards and supervisors as defined in the Act, and all other employees. Tii: UNION SAVINGS & TRUST COMPANY 180