State Bank Of India

STATE BANK OF INDIA • • 267 • State Bank of India and Local 6, International Fed- eration of Health Professionals, International Longshoremen's Association, AFL-CIO. Case 2-CA-19667 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS Upon a charge filed by the Union 26 May 19831 the General Counsel of the National Labor Rela- tions Board issued a complaint 20 July against the Bank, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Ite tions Act. Copies of the charge and the complaint were duly served on the parties to this proceeding. The complaint alleges that about 28 April the Respondent, without notice to or bargaining -with the Union, granted a wage increase to unit employ- ees effective retroactively to 1 April. On 2 August the Respondent filed its answer to the complaint admitting in part and denying in part the allega- tions of the Complaint. On 17 October the General Counsel filed a Motion for Summary Judgment. On 19 October 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 re- sponse. 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 jurisdic- tion; (2) there is now pending before the Board a related Motion for Summary Judgment which pre- sents a threshold issue testing the underlying certi- fication; and (3) the Respondent promised the wage increase , to its employees in October 1982 and the increase was given as of a date the Bank tradition- ally has granted salary increases. • In his Motion for Summary Judgment, the Gen- eral Counsel asserts that the Bank is raising issues which were raised and determined or could have 1 All dates are in 1983 unless otherwise indicated been raised and determined in the underlying rep- resentation proceeding. We agree with the General Counsel. In a letter dated 4 March, the Union noted its certification 2 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. On 28 April the Bank granted wage increases ret- roactive to 1 April to its employees in the unit de- scribed above without prior notification to, or con- sultation or negotiations with, the Union. The Bank contends that the Board does not have jurisdiction over it because it is a direct instrumen- tality of the Government of India and therefore it is not an "employer" as that term is defined in the Act. The Board rejected this argument in State Bank of India, 2,29 NLRB 838 (1977), and that de- cision is controlling here.3 The Bank further contends that the pending technical 8(a)(5) proceeding would render prelim- titre a decision in the instant case. The Board, has granted the Motion , for Summary Judgment in Case 2-CA-19487, thereby rendering this conten- tion moot.4 Finally, the Bank's contention that it gave the wage increase on the basis of an earlier promise is not a legally sufficient defense. Even accepting the Bank's evidence that the employees were promised a wage increase in April and that the timing. of the increase was predetermined, the amount of the in- crease was discretionary and became a matter as to which the Bank was obligated to consult with the bargaining agent.5 We therefore find that the Bank has raised no issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Company 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 The Union was certified as the representative of the employees in the appropriate unit 23 February in Case 2-RC-19372 2 See also State Bank of India, 262 NLRB 1108 (1982) 4 273 NLRB 38 (1984) 5 - Charles Mfg Co. 245 NLRB 39 (1979), Onezta Knitting Mills, 205 NLRB 500 fn 1 (1973) See also State Farm Mutual Auto Insurance Ca, 195 NLRB 871, 890 (1972) 273 NLRB No. 39 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 engages in interstate finan- cial transactions in excess of $100,000 from its New York place of business. We find that the Company 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 organization Within the mean- ing of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Unit and the Union's Representative Status The following-employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-tithe employees employed by Respondent 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. The Union was certified as the collective-bargain- ing representative of the employees in the unit on 23 February, and the -Union continues to be the ex- clusive representative under Section 9(a) of the Act. B. The Refusal to Bargain About 28 April the Respondent, without notice to or bargaining with the Union, granted a wage increase to employees in the unit. - We find the Respondent has, by this conduct, violated Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By granting a wage increase to unit employees on 28 April 1983, without notice to or bargaining with the Union, the Company has engaged in unfair labor practices within the ,meaning of Sec- tion 8(a)(5) and -(1) and Section 2(6) and (7) of the Act. THE 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, on request, bargain collec- tively with the Union concerning wage increases for unit employees. ORDER The National Labor Relations Board hereby orders that the Respondent, State Bank of India, New York, New York, its officers, agents, succes- sors, and assigns, 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 its em- ployees in the bargaining unit, by granting wage in- creases without prior notice to or bargaining with the Union, providing that the Respondent shall not be required to rescind any wage increase previous- ly granted. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit concerning wage increases. All full-time and regular part-time employees employed by Respondent 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 facility in New -York, New York, copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Re- gional Director for Region 2, after being signed by the Respondent's authorized representative,- shall 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. 1 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 Nation- al Labor Relations Board " STATE BANK OF INDIA 269 (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT grant wage increases to unit em- ployees without prior notice to or bargaining with Local 6, International Federation of Health Profes- sionals, International Longshoremen's Association, AFL-CIO as the exclusive representative of its em- ployees in the following appropriate 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, as the exclusive representative of all employees in the bargaining unit described below, with respect to wage increases. The bargaining unit is: All full-time and regular part-time employees employed by Respondent 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. STATE BANK OF INDIA