Seattle-First National Bank

SEATTLE-FIRST NATIONAL BANK Seattle-First National Bank and Financial Institu- tion Employees of America, Local 1182, char- tered by United Food and Commercial Workers International Union, AFL-CIO. Case 19-CA- 11364 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On November 30, 1970, the Firstbank Independ- ent Employees Association (Firstbank) was certi- fied by the Board as the exclusive bargaining repre- sentative of the employees of Seattle-First National Bank (SeaFirst and/or the Respondent) in the ap- propriate unit.' Firstbank later voted to affiliate with the Retail Clerks International Union, AFL- CIO (RCIU) and changed its name to Financial In- stitution Employees of America, Local 1182 char- tered by the Retail Clerks International Union (FIFA). FIEA petitioned the Board to amend its certification to reflect this change. The Board granted the petition and amended the certification.2 SeaFirst refused to bargain with FIEA, alleging that because nonunion members of the bargaining unit were not allowed to vote, the affiliation elec- tion did not meet minimal due process standards thus rendering the affiliation invalid . FIEA filed unfair labor practice charges and the Board found that SeaFirst had violated Section 8(a)(5) and or- dered SeaFirst to bargain with the FIEA.3 SeaFirst then petitioned the Court of Appeals for the Ninth Circuit for review, but before it issued a decision the Board, sua sponte, moved that the case be remanded . The motion was granted and on re- consideration the Board held that because non- members were not permitted to participate in the affiliation election the election was invalid. The Board dismissed the unfair labor practice charges and vacated the amended certification.4 Thereafter, FIEA moved the Court of Appeals for the Ninth Circuit for review of the Board's De- cision and Order. The Ninth Circuit held that re- quiring that nonunion employees be allowed to vote on affiliation questions was inconsistent with The appropriate unit is- All of the Employer's employees within the State of Washington, ex- cluding professional employees, confidential employees, management trainees, and supervisors as defined in the Act. z 241 NLRB 751 (1979) 245 NLRB 700 (1979). Additionally, after the Board amended FlEA's certification, the Retail Clerks International Union merged with the Amalgamated Meat Cutters and Butcher Workmen of North America to become the United Food and Commercial Workers International Union, AFL-CIO. The Board granted FIEA's motion to amend its name to reflect this change Id at 700 fn 1. 4 265 NLRB 426 ( 1982). 571 the Act.5 The Board petitioned the Supreme Court for review. The Court affirmed the Ninth Circuit's decision, holding that minimum due process stand- ards were present in the affiliation election, and that dissatisfaction with the decisions' union mem- bers make may be tested by a Board-conducted representation as, for example, if it is unclear whether the reorganized union retains majority support.6 The Supreme Court remanded the case to the Ninth Circuit, which in turn remanded it to the Board. Thereafter, the parties submitted state- ments of position. During the pendency of this case at the Board, the Board issued its decision in West- ern Commercial Transport,7 in which the Board re- viewed the impact of the Supreme Court's decision in Financial Institution Employees on the continui- ty of representative aspect of affiliation . The Board granted the parties' subsequent request to submit additional statements of position in light of that de- cision. The parties then filed additional statements of position and the Chamber of Commerce of the United States filed an amicus brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record, the statements of position and amicus brief and has de- cided to vacate its decision and order in Seattle- First National Bank, 265 NLRB 426 (1982), and to amend the certification and name the Financial In- stitution Employees of America, Local 1182, char- tered by the United Food and Commercial Work- ers International Union, AFL-CIO as the employ- ee's exclusive bargaining representative. The Board has traditionally required that two conditions be satisfied before granting a petition for amendment of certification based on an affiliation: the first is that the affiliation election itself satisfy minimum due process standards ; the second re- quires substantial continuity between the pre- and post-affiliation bargaining representative.8 A deter- mination of whether an affiliation has so substan- tially altered a union's identity that a new represen- tation election is required rests on an examination of the changes wrought by the affiliation .9 In each case continuity is determined by a factual compari- son between the pre- and post-affiliation representa- tive. In Western Commercial, the Board found that the affiliation of a small (136 employee unit), inde- 752 F.2d 356 (9th Cir. 984). " NLRB Y. Financial Institution Employees Local 1182, 475 U S. 192 (1986). 7 288 NLRB 214 (1988). "Hammond Publishers. Inc, 286 NLRB 124 (1987). NLRB Y. Insulfab Plastics, 789 F.2d 961 (1st Cir 1986). enfg 274 NLRB 817 (1985) Western Commercial, supra at 218. 290 NLRB No. 72 572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pendent union with an entity representing 8500 em- ployees and affiliated with an international union, did not result in continuity of representative. Rely- ing on changes such as the wholesale replacement of union officers, the removal of day-to-day con- tract administration from local hands, and the loss of control over the assessment and expenditure of dues, the Board determined that membership rights and organizational autonomy were so diminished as to alter the "fundamental character of the repre- senting organization ." Western Commercial, supra at 218. The Board thus concluded that these changes were "sufficiently dramatic" to raise a question concerning representation and render in- appropriate an amendment of certification. In the instant case, the Respondent contends that the af- filiation has similarly resulted in changes, with re- spect to officers, limitation on membership rights, increased power of the executive council , and in- terference with the authority of the membership to call strikes, negotiate contracts, and settle griev- ances, that are sufficiently dramatic to alter its very character and, therefore, to raise a question con- cerning representation.' 0 We disagree. The record indicates that before affiliation FIEA operated statewide and was governed by an execu- tive council which formulated policy- and con- trolled the union's relationship with the Respond- ent. Negotiation of new contracts, processing grievances and regulation of internal union affairs were all handled by committees appointed by the FIEA president. Economic sanctions on the unit level could be undertaken only after being ap- proved by the executive council and ratified by the members of the affected unit . The FIEA constitu- tion allowed for union expansion to include other labor organizations or employees of other banks, and for affiliations. A close examination of Local 1182 after affili- ation persuades us that there was sufficient continu- ity in the representative to warrant an amendment 10 The Respondent has made no further argument relating to procedur- al due process in the affiliation election , so that question is not before us The Respondent argues , however, that the Supreme Court's opinion is to be read as inviting the Board to include , as part of a due process compo- nent of the continuity inquiry, a general examination of "the extent of [employee] opposition to the affiliation " We do not read the Supreme Court's opinion as inviting such an inquiry , which would be tantamount to the Board's conducting an informal poll concerning the affiliation among those to whom , the Court held , no opportunity to vote in the af- filiation election need be extended. Of course, if we find , on the basis of objective factors, that the changes in a bargaining representative are suffi- ciently dramatic to alter Its identity , we will find under Western Commer- cial, that a question concerning representation t% raised and a Board elec- tion would be called for if the union were to continue to seek representa- tive status . Also, a question may still be raised in the traditional manner, by a timely employee-filed decertification petition or by proof of objec- tion considerations for good-faith doubt The Respondent 's proposal for directly investigating employee sentiment in virtually any affiliation case has no support either in the statute , Board precedent , or in the Supreme Court's opinion in this case. of certification and a finding that the Respondent is obligated to bargain with Local 1182. The Re- spondent contends that Local 1182 now has differ- ent officers and that this is an indication of dramat- ic change resulting from the affiliation . The record, however, shows that after the affiliation, Local 1182's officers, and their responsibilities, remained the same as those who served for FIFA. In the year since affiliation, there has been a natural turn- over of individuals occupying these offices. There is no evidence, however, that replacement of offi- cers was a condition of the affiliation or a result of any action taken by the International . Compare Western Commercial Transport, supra at 215. The Respondent next contends that the FIEA constitution specifically limited membership in the union to the Respondent's employees, while no such restriction exists under th RCIU constitution. As examination of the provisions in question indi- cates that while article III of the FIEA constitu- tion, entitled "Membership," does limit eligibility to employees of the respondent, that limitation is sub- ject to change upon approval of the executive council, to allow the inclusion of members of other labor organizations. Additionally, article VIII, enti- tled "Affiliation," and article IX, entitled "Expan- sion," specifically allow for the inclusion of other labor organizations or employees of other banks upon approval of the executive council and ratifi- cation of whatever amendments to the constitution are required . We thus find that these provisions of the FIEA constitution are entirely consistent with the expanded membership eligibility available under the RCIU constitution of Local 1182 and are not indicative of lack of continuity. The Respondent also contends that the differ- ences in eligibility requirements to hold union office further distinguish the pre- and post-affili- ation entity. Under the RCIU constitution, a member must be in good standing for 1 year before being eligible to hold office , while the FIEA con- stitution required that a member must be in good standing for only 1 month. We note that the FIEA constitution additionally required a member, once nominated for office, to maintain good standing up to the election. The constitution did not specify the maximum length of time between the notice of the election and the election itself. In light of this, a member may be'required to remain in good stand- ing for a substantially longer period than the provi- sion prescribes, thereby diminishing the practical differences between the two provisions. We also find it significant that the RCIU provision concerns only the election of new officers , and does not re- quire that the old officers must be replaced upon affiliation because they lack the requisite period of SEATTLE-FIRST NATIONAL BANK union membership. Thus, as noted above, the offi- cers the FIEA retain their positions upon affiliation with RCIU. The Respondent further contends that under the RCIU constitution, the local's executive council can accept or reject an employer 's final contract offer without membership approval, whereas under the FIEA constitution all contracts were subject to the ratification of the membership . The evidence shows that under the RCIU constitution the execu- tive council does have authority to accept or reject an employer's final contract offer, but can do so only after the failure of the membership of the af- fected local to approve a strike or other economic action. We find that under these circumstances the membership does have the opportunity to voice its approval or disapproval of a final offer and the ex- ecutive council cannot bypass the membership as alleged by the Respondent. Finally, the Respondent alleges that the RCIU constitution severely restricts the local 's ability to call strikes, negotiate binding collective-bargaining agreements, and effectively to resolve grievances. Upon our examination of the comparable sections of the respective constitutions, we find no merit to this contention . Under the FIEA constitution the local unit could employ economic sanctions, in- cluding engaging in strikes, but only after an af- firmative vote of two-thirds of the executive coun- cil and ratification of the strike by 60 percent of the members of the affected unit. If the unit should strike without the approval of the executive coun- cil, the striking members of the unit would be sub- ject to expulsion, suspension, or fines as a result of intentionally violating FIEA policy and rules. By comparison, under the RCIU constitution, strike action must be approved by the executive council and a two-thirds majority of the affected local's voting members. The strike must also have the ap- proval of the International president. The RCIU constitution indicates that the president 's approval ensures compliance with the constitution and ex- haustion of all amicable means of adjustment prior to engaging in economic sanctions in an effort to protect membership interests. If a local engages in a strike without approval , however, the penalty is only the denial of strike benefits . " The Interna- i i The Respondent contends, citing Hansen Y. Guyette, 814 F 2d 547 (8th Cir. 1987), that the International could impose a trusteeship on a local because it fails to obtain authorization to strike. As we acknowledge that the International 's constitution confers broad and pervasive powers, the evidence here discloses that the exercise of such authority is reserved for only the most compelling situations, to wit the Hansen case. In that extraordinary case , a local union engaged in a protracted and violent strike, which commanded national attention-in every sense an atypical series of events. In our view, the fact that an international may exercise this potential authority does not defeat the conclusion that in most situa- tions decisions to strike remain at the local level 573 tional also cannot force a local to participate in a strike. With respect to local control of contract negotia- tions, the record indicates that under the RCIU constitution the terms of proposed collective-bar- gaining contracts must be submitted to the Interna- tional president for approval upon request (emphasis added) prior to membership action. Donald Hofer, International vice president and director of the northwest division of the RCIU, testified that this requirement is to prevent sweetheart contracts that result in injury to other locals, and to safeguard the standards and integrity of the contract. Further, Hofer stated that during his association with the International this section of the constitution had not been enforced and the local unions negotiated their own contracts. The International provides as- sistance to a local only upon the local's request. Finally, regarding grievance handling, the record shows that under the FIEA constitution grievances were managed by a grievance committee appointed by the president. Under the RCIU constitution, Local 1182's grievances are dealt with by the same personnel who were designated by the FIEA con- stitution to handle grievances. The International has assigned an advisory representative to assist the Local in these dispute resolution sessions. Applying the test set forth by the Supreme Court in Financial Institution, as applied by the Board in Western Commercial, we find that the post-affiliation union meets the test of continuity. As set forth above, autonomy essentially remains at the local level, including day-to-day contract ad- ministration, handling of grievances, control of col- lective bargaining, and the calling of strikes. While some differences exist between the FIEA and the RCIU, these are not "sufficiently dramatic " to alter the identity of the bargaining representative and raise a question concerning representation. Accord- ingly, we find that by failing and refusing to recog- nize and bargain refusing to recognize and bargain with the RCIU the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act.12 More relevant to our determination in this case is testimony that indi- cates in the previous 5 years trusteeship had been imposed on only 5 of approximately 215 locals, all as a result of financial irregularities . Of these five, one local requested the trusteeship in an effort to end chaos caused by factions within the local. i$ The Respondent contends that after affiliation Local 1182 possesses greater economic power than FIEA, thereby creating a different bargain- ing entity. We find this contention is without merit. See Insulfab Plastics, above at fn. 8 and Hammond, above. The Respondent contends that differences in the handling of union fi- nances, the amendment process, membership meetings, and physical fa- cilities manifest a lack of continuity . Little record evidence exists regard- ing these matters. For example, no membership meetings had been held by the time of the hearing and no amendments had been proposed. The alleged changes in the physical facility involved the relocation of the Continued 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER IT IS FURTHER ORDERED that the Board's Deci- The National Labor Relations Board orders that its Decision and Order in Case 19-CA-11364 (265 NLRB 426) is vacated in its entirety. union's office from one room to another, just down the hall in the same building, and while different individuals controlled union finances, this was the result of turnover among the individuals holding the offices charged with financial responsibilities. We find these changes do not demonstrate a lack of continuity. sion and Order in Case 19-CA-11364 (245 NLRB 700) is reinstated in its entirety. IT IS FURTHER ORDERED that the Board's Deci- sion and Amendment of Certification issued in Case 19-AC-23 (241 NLRB 751) is reinstated in its entirety.