The Wayne Oakland Bank

National Labor Relations Board - Board Decisions

Jul 29, 1971

192 N.L.R.B. 362 (N.L.R.B. 1971)

3,62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Wayne Oakland , Bank and Office and Profession-
, al Employees International Union, Local 10,
AFL-CIO. Case 7-CA-8698
July 29, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on May 1,0, 1971, byOffice and
Professional Employees International Union, Local
10, AFL-CIO, - herein called the Union, and duly
served on The Wayne Oakland Bank, herein called
the Respondent, the General Counsel of the National
Labor Relations 'Board, by the Regional Director for
Region 7, issued a complaint on May 13, 1971, ,against
Respondent, alleging that Respondent had engaged 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 National, Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before a- Trial
Examiner were-duly' served on the parties to -this
proceeding. I
With respect to the unfair labor practices, the
complaint alleges in substance that on March 31,
1971, following aBoard election in Case 7-RC-10291,
the Union was, duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;1 and that,
commencing on or about April 29, 1971, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On May 24, 1971, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On June 7, 1971, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 14, 1971, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
General Counsel's Motion'for Summary Judgment
should not be granted. Respondent thereafter filed a
response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
i Official notice is taken of the record in the representation proceeding,
Cases 7-RC-10290 through 10295, as the term "record" is defined in Secs.
102.68 and 102 .69(f) of the Board's Rules and Regulations , Series 8, as
amended. See LTV Electrosystems, Inc, 166 NLRB 938 , enfd. 388 F.2d 683
(C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v.
Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp, 164 NLRB 378,
enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. It should be
powers in connection with 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
The record in,Cases 7-RC-10290 through 10295
shows that the Respondent operates banking facilities
in certain northern suburban communities of Detroit.
At present, the Respondent maintains 13 geographi-
cally separate and distinct facilities, consisting of its
main office and 12 branch offices. The Union filed six
petitions in Cases 7-RC-10290 through 10295, seek-
ing elections in separate units at the Respondent's
main office `and five branch offices, respectively:' A
Bearing' was conducted on December 22, 1970, at
which the Respondent appeared and was afforded the
opportunity to ,litigate all issues, including the scope
of the appropriate, unit or units.. The Respondent
argued that the only appropriate unit is an employer-
wide one, including all eligible employees at all 13 of
its offices because the operations of its branch offices
are too closely integrated with each other and^with the
main ' office to warrant ' separation into distinct
bargaining units. Thereafter, on February 22, 1971,
after careful consideration' of the entire' record,
including the posthearing brief of the Respondent, the
Regional Director for, Region 7 issued his Decision
and Direction of Elections, in which he found that
each of the six locations petitioned for by the Union
constituted a separate and distinct appropriate
bargaining unit. The Regional Director found that
"the integrated nature of the Employer's operations is
not so pervasive as to necessitate a unit which
encompasses all the Employer's installations" and
that "the degree of centralized administrative control
herein is less significant than the fact that the
employees involved perform their day-to-day work
under the immediate supervision of local supervisors
whose decisions and exercise of authority substantial-
ly affect them on a daily basis. Haag Drug Company,
169 NLRB 877." On March 3, 1971, the Respondent
filed its Request for Review with the Board. By
telegraphic communication on March 22, 1971, the
Board denied the Respondent's Request for Review
on the basis that it raised no substantial issues
warranting review.
In both its answer to the complaint and its response
noted that the Regional Director considered six petitions from the Union
with respect to this Respondent . (Cases 7-RC-10290, 10291, 10292, 10293,
10294, and 10295.) Although elections were directed in all six cases, the
instant proceeding is concerned only with the - Respondent's refusal to
bargain with the certified Union for the appropriate bargaining unit in
Case 7-RC-10291.
192 NLRB No. 59
THE WAYNE OAKLAND BANK 363
to the Notice To Show Cause, the Respondent again
contends that the Regional Director's unit determina-
tion and the Board's denial of the Respondent's
Request for Review were erroneous, because of the
integrated nature of its operations. Accordingly, it
argues that it is relieved of any obligation to bargain
with the certified Union and that the Motion for
Summary Judgment should be denied. We find no
merit in the Respondent's position herein.
It is well settled that in the absence of newly
discovered or 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 which were or could have been
litigated in a prior representation proceeding.2
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discovered
or previously unavailable evidence, nor does it allege
that any special circumstances exist herein which
would require the Board to reexamine the decision
made in the representation proceeding. We therefore
find that the Respondent has not raised -any issue
which is properly litigable in this unfair labor practice
proceeding. We 'shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent. is, and has been at all times-material
herein, a corporation duly organized under, and
existing by virtue of, the laws of the State of Michigan.
At all times material herein, Respondent has
maintained its main office and place of business at
400 South Main Street in the city of Royal Oak, State
of Michigan, and herein called the Royal Oak Office.
Respondent maintains other branches in the cities of
Highland Park, Berkley, Clawson, Royal Oak, Troy,
and Rochester and is, and has been at all times
material herein, engaged in the general commercial
banking business. The branch installation located at
6024 Livernois Road, Troy, Michigan, herein called
the Livernois Road branch, is the only facility
involved in this proceeding.
During the year ending December 31, 1970, which
period is representative of its operations during all
times material-herein, Respondent, in the course and
conduct of its business operations, had gross revenue
in excess of $500,000 derived from loans, deposits,
a
and investments. During that same period, it per-
formed banking' services valued in excess of $500,000,
of which banking services valued in excess of $50,000
were performed for various enterprises and individu-
als located in States other than the State of Michigan.
We find, on the basis of the foregoing, that
Respondent 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.
II. THE LABOR ORGANIZATION INVOLVED
Office and Professional Employees International
Union, Local 10, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act,
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All full-time and , regular -part-time employees
employed by the Respondent at,its office at 6024
Livernois, Troy, Michigan ; but exluding all
confidential employees, professional employees,
and guards and supervisors as defined by the Act.
2. The certification
On March 23, 1971,'a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 7, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on March 31, 1971, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about April 21, 1971, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exlusive
collective-bargaining representative of all the employ-
ees in the above-described unit. 'Commencing on or
about April 29, 1971, and continuing at all times
2 See Pittsburgh Plate Glass Co v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter to, date, the. ,Respondent. has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly,, we find that the Respondent has, since
April 29, 197,1, and at all times thereafter, refused to
bargain collectively with the Union as the exlusive
,representative, of the, employees -in- the -appropriate
unit, and that, by such refusal, Respondent, has
engaged in ,and : is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described ' in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among' the several States and tend to lead
to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within' the
meaning of Section 8(a)(5) and (1) of the Act, we shall
order' that it cease and desist therefrom, and, upon
reque'st,' bargain collectively with the Union as the
exclus ve representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will,,be accorded the services of their
selected bargaining agent for the, period provided by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good, faith with,the Union as the recogniz-
ed bargaining representative in the appropriate unit.
See Mar-Jac, Poultry ,Company, Inc., ,136 NLRB 785;
Commerce Company d/b/a Lamar Hotel, 144 NLRB
226, 229, enfd.-328 F.2d 600 (C.A. 5), cert. denied 379
U.S. 817; Burnett Construction Company, 149, NLRB
1419,142 1, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. The Wayne Oakland Bank is an employer
engaged , in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Office and Professional Employees Internation-
al Union, Local 10, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. All- full-time and regular part-tune employees
employed by the Respondent at its office at 6024
Livernois, Troy, Michigan; but excluding all confi-
dential employees, professional employees,, and
guards and supervisors as defined by the Act
constitute a unit appropriate for the purposes of
collective bargaining within-the meaning of Section
9(b),of the Act.
4. Since March 31, 1971, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate, unit for the purpose of,collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about April 29, 1971, and at
all times, thereafter, to, bargain collectively with the
above-named labor organization as the exclusive
bargaining representative, of all the ,employees , of
Respondent 'in the appropriate unit,, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5),of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with , restraining, and coercing ,, employees
in the exercise of, the ,rights,' guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the. Act.
7. The aforesaid 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
Relations Board hereby orders that Respondent, The
Wayne Oakland Bank, its officers, agents , successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectivelyconcerning rates
of pay, wages, hours, and other terms and conditions
of employment with Office and Professional Employ-
ees International Union, Local 10, AFL-CIO,,as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time employees
employed by the Respondent ^ at its office at 6024
Livernois, Troy, Michigan; but excluding all
confidential employees, professional employees,
and guards and supervisors as defined by the Act.
(b) 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:',
THE WAYNE OAKLAND BANK
(a) 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.
(b) Post. at its Livernois Road branch office -copies
of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional
Director for Region 7,- after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 In the event that this Order is enforced by a,Judgment;of a United
States Court of Appeals, the words in the notice readmg "POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to 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
WE WILL ' NOT refuse' to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with 'Office
and Professional Emplyees International Union,
365
Local 10, AFL-CIO, as the exclusive representa-
tive of the employees ' in the bargaining unit
described below. 1
WE WILL NOT 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.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative of all
employees in the bargaining unit described below,
with respect to rates of pay, wages , hours, and
other terms and conditions of employment , and, if
an understanding is reached , embody such under-
standing in a signed agreement . The bargaining
unit is:
All full-time and regular and part-time
employees employed by the Respondent at
its office at 6024 Livernois , Troy, Michigan;
but excluding all confidential employees,
professional employees , and guards and
supervisors as defined by the Act.
THE WAYNE E-OAKLAND
BANK
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for'60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office , 500 Book Building , 1249 Washington Boule-
vard, Detroit , Michigan 48226, Telephone 313-226-
3200.