State Bank Of India

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD State Bank of /ndia and Local 6, International Fed- eration of Health Professionals, International Longshoremen's Association, AFL-CIO. Case • 2-CA-19487 14 December 1984 DECISION AND. ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS _ Upon a charge filed by the Union on 8 March 1983 1 the General Counsel of the National Labor Relations Board issued a complaint 18 March .against the Bank, the Respondent, alleging , .that it has violated Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act. Copies of the charge and the complaint were duly served on the parties to this proceeding. The ,complaint alleges that on 2 -3 February fol- lowing a Board election in Case 2-RC-19372, the Union was certified as the exclusive collective-bar- gaining representative of the Bank's employees in the unit found appropriate. 2 The complaint further alleges that since 17 March the Bank has refused to bargain with the Union. On 23 March the Bank filed its answer admitting in part and denying in part the allegations in the complaint. On 5 April the General Counsel filed a Motion for Summary Judgment.- On 14 April the Board issued an order transferring the proceeding to the Board and a Notice _ to Show Cause why the motion -should not be granted. The Bank filed a brief opposing the General Counsel's Motion for Summary Judgment. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. ' • ,Ruling on Motion for Summary Judgment In its response to the Notice to Show Cause,_the Bank contends that the Board should deny the Motion for Summary Judgment and dismiss the complaint in its entirety because: (1)-the -Bank is a direct instrumentality of the Government of -India and therefore is not an "employer" as that term is defined in the National Labor Relations Act or, in the alternative, is an employer over which the Board, in its discretion, should not exercise juris- 1 All dates are 1983 unless otherwise noted 2. Official nonce is taken of the record in the representation proceed- ing,_ Case 2-RC-19372, 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 Electro Systems, 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), Intertype Co v Penellii, 269 F Supp 573 (D C Va 1967), Follett Corp, 164 NLRB 378 (1967), * enfd 397 F 2d 91 (7th Cir 1968), Sec 9(d) of the NLRA, as amended diction; (2). the Bank's objections to the election in the underlying representation proceeding are valid; and (3) the Board denied the Respondent due proc- ess in the representation case by failing to hold a hearing on the Bank's objections and by failing to consider the entire administrative record which was before the Regional Director in that case. Should the Board fail to dismiss the complaint, the Bank requests that the Board order a hearing on its objections or at least make a de novo review of the entire administrative record that was before the Regional Director. The General Counsel asserts that all material issues have been previously decided. We agree with the General Counsel. .The record, including the record in Case 2-RC- 19372, discloses that an election was held on 2 Sep- tember 1982 pursuant to a Stipulated Election Agreemeni. The tally of ballots ,, shows that of 83 eligible voters, 43 cast valid votes for and 34 against , the Union; there were no challenged bal- lots. After conducting an investigation of the Bank's objections, the Regional DireCtor on 15 Oc- tober '1982, issued his Report recommending that the Bank's objections be overruled. The Bank filed exceptions to the Regional Director's Report. On 23 February the Board found no merit in the Bank's exceptions and certified the Union as the ex- clusive 'bargaining representative of the Bank's em- ployees in the stipulated unit.3 'By letter dated 4 March the Union noted its cer- tification by the Board and demanded that the Bank bargain with it. By letter dated 17 March the Bank's- attorney notified the Union that the Bank Considered the Board's certification of the Union to be wrong and that it would therefore decline to bargain with the Union. The Bank has refused at all times since 17 March to bargain with the Union. It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate. issues that were or could have been litigated in a prior representation proceeding.4 - All issues raised by the Bank were or could have been litigated in the prior representation proceed- ing..The Bank does not offer to adduce at a hear- ing any newly discovered and previously unavail- able evidence, nor does it allege any special cir- cumstances that would require the Board to reex- amine the -decision made in the representation pro- 3 Chairman Dotson did not participate in the underlying representation proceeding 4 See Pittsburgh Glass Co v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) 273 NLRB No. 38 STATE BANK OF INDIA 265 ceeding. 5 We therefore find that the Bank has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION, The Bank is a financial ,institution organized under the laws of India and licensed to do business in the State of New York, with a place of business at 460 Park Avenue, New York, New York. Annu- ally, in the course and conduct of its business oper- ations, the Respondent derives gross revenues in excess of $1 million, and it engages in interstate fi- nancial transactions in excess of $100,000 from its New York place of business. We find that the Bank is an employer engaged in commerce within the meaning of Section" 2(6) and (7) of the Act and that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The CertifiC non • Following the election held 2 September . 1982 the Union was certified 23 February 1983 as the collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time employees employed by the Employer at its 460 Park Avenue, New York, New York facility includ- ing tellers, clerks, clerk-typists, , messengers, bookkeepers, receptionists, secretaries, and ma- chine operators, but excluding all officers, managerial and professional employees, confi- dential employees, India-based temporary and other temporary employees, maintenance em- ployees, guards and supervisors as defined in the Act. 5 In addition to its claim that the Board incorrectly failed to grant its exceptions in the underlying representation case, the Bank contends that the Board does not have jurisdiction over It because it is a direct instru- mentality of the Government of India and therefore it is not an "employ- er" as that term is defined in the Act The Board rejected this argument in State Bank of India, 229 NLRB 838 (1977), and that decision is con- trolling here See also State Bank of India, 262 NLRB 1108 (1982) The Respondent further contends that the Board denied it due process in the underlying representation proceeding because the Board did not have before It statements of witnesses on which the Regional Director relied in reaching his decision We find no merit in this contention See Frontier Hotel, 265 NLRB 343 (1982) Member Dennis finds It unnecessary to rely on Frontier Hotel in re- jecting the Respondent's due process contention She relies instead on the failure of the Respondent's evidence, taken as true, to warrant setting aside the election The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 4 March the Union has requested the ,Bank to bargain, and since 17 March the Bank has re- fused. We find that this refusal constitutes an un- lawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after' 17 March to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Bank has engaged in unfair labor practices affecting commerce within , the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order- it to cease and desist, and to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement, and to provide the Union on request information necessary for collective bargaining. To ensure that the employees are accorded. the services of their selected bargaining agent for the period provided by law, we shall construe the -ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. See Mar-Jac Poultry Co.,' 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB- 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964),,.cert. denied 379 U.S. 817 (1964); Burnett Construction Co., -149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, State Bank of India, New York, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Local 6, Interna- tional Federation of Health Professionals, Interna- tional Longshoremen's Association, AFL-CIO as the exclusive bargaining representative of the em- ployees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) On request, bargain -with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement, and provide the Union, on request, information necessary for collective bargaining: All full-time and regular part-time employees employed by the Employer at its 460 Park Avenue, New York, New York facility includ- ing tellers, clerks, clerk-typists, messengers, bookkeepers, receptionists, secretaries, and ma- chine operators, but excluding all officers, managerial and professional employees, confi- dential employees, India-based temporary and other temporary employees, maintenance em- ployees, guards and supervisors as defined in the Act. (b) Post at its New York, New York facility copies of the attached notice marked `,`Appendix."6 Copies , of the notice, on forms proyideod by the Re- gional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify' the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has -taken to comply. 6 If 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 Na- tional 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" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and conditions of employment with Local 6, Interna- tional Federation of Health Professionals, Interna- tional Longshoremen's Association, AFL-CIO as the exclusive representative of the employees in the bargaining unit described . below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the 'rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with ,the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining -unit: All full-time and regular part-time employees employed by us at our 460 Park Avenue, New York, New York facility including tellers, clerks, clerk-typists, messengers, bookkeepers, receptionists, secretaries, and machine opera- tors, but excluding all officers, managerial and -professional employees, confidential employ- ees, India-based temporary and other tempo- rary employees, maintenance employees, guards and supervisors as defined in the Act. STATE BANK OF INDIA