Wyandotte Savings Bank

National Labor Relations Board - Board Decisions

Jul 1, 1980

250 N.L.R.B. 362 (N.L.R.B. 1980)

)EC:ISIO)NS ()F NATIONAl LABOR REL.ATIONS BOARD
Wyandotte Savings Bank and Retail Store Employ-
ees Union, Local 876, United Food and Com-
mercial Workers International Union, AFL-
CIO. Cases 7-CA-17258, 7-CA-17259, and 7-
CA- 17260
July 1, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MF MBI RS
JENKINS AND TRUESI)ALE
Upon charges filed on January 7, 1980, by Retail
Store Employees Union, Local 876, United Food
and Commercial Workers International Union,
AFL-CIO, herein called the Union, and duly
served on Wyandotte Savings Bank, herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 7, on January 11, 1980, issued an Order
consolidating cases and complaint in Cases 7-CA-
17258 and 7-CA-17259 and a complaint in Case 7-
CA-17260 against Respondent, alleging that Re-
spondent 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on November 5,
1979, following a Board election in Cases 7-RC-
15286 and 7-RC-15287, the Union was duly certi-
fied as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the units
found appropriate; and that, on December 17, 1979,
following a Board election in Case 7-RC-15292,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate therein.l
The complaint in Cases 7-CA-17258 and 7-CA-
17259 alleged in addition that commencing on or
about December 19, 1979, and at all times thereaf-
ter, Respondent has refused, and continues 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. Similarly, the complaint in Case 7-CA-17260
'Official notice is taken of the record In the repreenatilon proceed-
ings, Casees 7-RC-15286, 7-RC-15287 and 7-RC 15292, as the term
"record" is defined in Setss 102 68 and 102 69(g) of Ihe Hoard's Rules
and Regulation%, Series 8, as amended. See LIV Elkctroyvitemils. Inc. 166
NLRB 938 (1967). enfd 388 F 2d 683 (4th Cir 1968); Go/ldpen Age Bevcer.
age Co., 167 NLRB 151 (1967), enfd. 415 F2d 26 (5th Cir 1969); Inter-
type Co. v. PenRllo, 269 F Supp 573 (DC Va 1967): I/lletr Corp., 164
NLRB 378 (1967). enfd 397 F.2d 91 (7th Cir 19h68) Sec 9(d) of the
NLRA, as amended
250 NLRB No. 47
alleged that commencing on or about December
28, 1979, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On January
18, 1980, Respondent filed its answer to the com-
plaints admitting in part, and denying in part, the
allegations in the complaints.
On February 13, 1980, counsel for the General
Counsel filed directly with the Board a Motion to
transfer the above cases to and to continue pro-
ceedings before the Board, a motion to consolidate
these proceedings, and a Motion for Summary
Judgment. Subsequently, on February 28, 1980, 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 Judg-
ment should not be granted. Respondent thereafter
filed a response to the Notice To Show Cause.
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 has challenged the bargaining unit
determination made by the Board in its Decision
on Review and Direction of Election in the under-
lying representation cases.2 It is well settled that in
the absence of newly discovered or previously un-
available evidence or special circumstances a re-
spondent 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. 3 Accordingly, we find
that the issue in question is not properly litigable in
this unfair labor practice proceeding.
In addition, Respondent challenges the sufficien-
cy of the bargaining unit description in Case 7-
CA-17260 because of an alleged deviation between
the unit alleged appropriate in the complaint and
the unit found appropriate in the Board's earlier
Decision.4 After carefully examining all relevant
documents, we have concluded that Respondent's
argument lacks merit. Respondent further contends
that the Charging Party has demanded to bargain
in a consolidated bargaining unit consisting of three
branch bank units rather than in the individual
branch bank units found appropriate by the Board
245 NI. RI No 120 (1979)
' Sec Piftrburgh Plute G/La\ Co ,. N. L R.R., 13 U 5 146, 162 (1941);
Rulnc aid Rcgulaltiion of the Hoard. Sec 102 67() and 10)2 69()
4 245 NI RI] No 12)
WYANDO()FTE SAVINGS BANK
in the underlying representation cases. The record
reveals that in its letters requesting bargaining the
Union simply requested negotiations with respect
to the three branch bank units in question, and did
not request bargaining with respect to a merged
unit. Hence, this contention also lacks merit, and
we shall grant the Generaly Counsel's Motion for
Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINI)INGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent has
maintained its principal office and place of business
at 3005 Biddle Avenue, in Wyandotte, Michigan.
Respondent maintains 13 branches in the State of
Michigan. Respondent is, and has been at all times
material herein, engaged in commerical and general
banking. Respondent's branches located at 1028
Oak Street, Wyandotte, Michigan, 10680 Haggerty
Road, Belleville, Michigan, and 20659 Northline
Road, Taylor, Michigan, are the only facilities in-
volved in this proceeding. During the calendar
year ending December 31, 1979, which period is
representative of its operations during all times ma-
terial hereto, Respondent in the course and con-
duct of its business operations derived gross rev-
enues from is banking operations in excess of
$500,000. During the same period of time Respond-
ent received moneys and credits in excess of
$50,000 which were sent directly to the Michigan
locations from sources outside the State of Michi-
gan and furnished money, credits, and banking
services valued in excess of $50,000 directly to per-
sons and firms engaged in interstate commerce.
We find, on the basis of the foregoing, that Re-
spondent 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.
11. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union, Local 876,
United Food and Commercial Workers Internation-
al Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The units
The following employees of Respondent consti-
tute units appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees,
including all tellers, receptionists, secretaries,
clerical employees, co-op students, manage-
ment trainees, housekeeping employees, assist-
ant branch manager and branch administrative
assistant employed by the Employer at its fa-
cility located at branch #2, 1028 Oak Street,
Wyandotte, Michigan, but excluding all branch
managers, driver-messengers, guards and su-
pervisors as defined in the Act.
All full-time and regular part-time employees,
including all tellers, receptionists, secretaries,
clerical employees, co-op students, manage-
ment trainees, housekeeping employees, assist-
ant branch manager and branch administrative
assistant employed by the Employer at is fa-
cility located at branch #12, 10680 Haggerty
Road, Belleville, Michigan, but excluding all
branch managers, driver-messengers, guards
and supervisors as defined in the Act.
All full-time and regular part-time employees,
including all tellers, receptionists, secretaries,
clerical employees, co-op students, manage-
ment trainees, housekeeping employees, assist-
ant branch managers and branch administra-
tive assistant, employed by the Employer at its
facility located at branch #9, 20659 Northline
Road, Taylor, Michigan, but excluding all
branch managers, driver-messengers, guards
and supervisors as defined in the Act.
2. The certification
On October 26, 1979, a majority of the employ-
ees of Respondent in each 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 Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in the re-
spective units on November 5, 1979, in Cases 7-
RC-15286 and 7-RC-15287 and on December 17,
1979, in Case 7-RC-15292, and the Union contin-
ues 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 November 26, 1979, in
Cases 7-CA-17258 and 7-CA-17259 and com-
mencing on or about December 26, 1979, in Case
7-CA-17260, and at all times thereafter, the Union
has requested Respondent to bargain collectively
3h3
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above-de-
scribed unit. Commencing on or about December
19, 1979 in Cases 7-CA-17258 and 7-CA-17259
and on or about December 28, 1979 in Case 7-CA-
17260, and continuing at all times thereafter to
date, Respondent has refused, and continues to
refuse, to recognize and bargain with the Union as
the exclusive representative for collective bargain-
ing of all employees in these units.
Accordingly, we find that Respondent has, since
on or about December 19, 1979, in Cases 7-CA-
17258 and 7-CA-17259, and since on or about De-
cember 28, 1979, in Case 7-CA-17260, and at all
times thereafter, refused to bargain collectively
with the Union as the exclusive representative of
the employees in the appropriate units, and that, by
such refusal, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR L.ABOR
PRACTICES UPON COMMERCE
The activities of Wyandotte Savings Bank set
forth in section III, above, occurring in connection
with its operations described in section 1, 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 commerce 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 request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate units, and, if understandings are
reached, embody such understandings in signed
agreements.
In order to insure that the employees in the ap-
propriate units will be accorded the services of
their selected bargaining agent for the period pro-
vided 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 recognized bargaining representative
in the appropriate units. See Mar-Jac Poultry Com-
pany, Inc., 136 NLRB 785 (1962); Commerce Com-
pany d/b/a Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817; Burnett Construction 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 USIONS OF LAW
1. Wyandotte Savings Bank is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Store Employees Union, Local 876,
United Food and Commercial Workers Internation-
al Union. AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time employees,
including all tellers, receptionists, secretaries, cleri-
cal employees, co-op students, management train-
ees, housekeeping employees, assistant branch man-
ager, and branch administrative assistant employed
by the Employer at its facility located at branch
#2, 1028 Oak Street, Wyandotte, Michigan, but ex-
cluding all branch managers, driver-messengers,
guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purpose of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
All full-time and regular part-time employees, in-
cluding all tellers, receptionists, secretaries, clerical
employees, co-op students, management trainees,
housekeeping employees, assistant branch manager,
and branch administrative assistant employed by
the Employer at its facility located at branch #12,
10680 Haggerty Road, Belleville, Michigan, but ex-
cluding all branch managers, driver-messengers,
guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purpose of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
All full-time and regular part-time employees, in-
cluding all tellers, receptionists, secretaries, clerical
employees, co-op students, management trainees,
housekeeping employees, assistant branch manag-
ers, and branch administrative assistant employed
by the Employer at its facility located at branch
#9, 20659 Northline Road, Taylor, Michigan, but
excluding all branch managers, driver-messengers,
guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purpose of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since November 5, 1979, in Cases 7-CA-
17258 and 7-CA- 17259, and since December 17,
1979 in Case 7-CA-17260, 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.
364
WYANI)O()TTF SAVIN(iS 1ANK
5. By refusing on or about December 19, 1979 in
Case 7-CA- 17258 and 7-CA 17259 and on or
about December 28, 1979, in Case 7-CA-17260,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive representative of all the employees of Re-
spondent in the appropriate units, 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 refusals to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing.
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
meaning 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 Re-
lations Board hereby orders that the Respondent,
Wyandotte Savings Bank, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Retail Store Em-
ployees Union, Local 876, United Food and Com-
mercial Workers International Union, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate units:
All full-time and regular part-time employees,
including all tellers, receptionists, secretaries,
clerical employees, co-op students, manage-
ment trainees, housekeeping employees, assist-
ant branch manager and branch administrative
assistant employed by the Employer at its fa-
cility located at branch #2, 1028 Oak Street,
Wyandotte, Michigan, but excluding all branch
managers, driver-messengers, guards and su-
pervisors as defined in the Act.
All full-time and regular part-time employees,
including all tellers, receptionists, secretaries,
clerical employees, co-op students, manage-
ment trainees, housekeeping employees, assist-
ant branch manager and branch administrative
assistant employed by the Employer at its fa-
cility located at branch #12, 10680 Haggerty
Road, Belleville, Michigan, but excluding all
branch managers, driver-messengers, guards
and supervisors as defined in the Act.
All full-time and regular part-time employees.
including all tellers, receptionists, secretaries,
clerical employees, co-op students, manage-
ment trainees, housekeeping employees, assist-
ant branch managers and branch administra-
tive assistant employed by the Employer at its
facility located at branch #9, 20659 Northline
Road, Taylor, Michigan, but excluding all
branch managers, driver-messengers, guards
and supervisors as defined in the Act.
(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 which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate units
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
understandings are reached, embody such under-
standings in signed agreements.
(b) Post at its Wyandotte, Belleville, and Taylor,
Michigan, facilities copies of the attached notice
marked "Appendix."5 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 im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous 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.
In1 the eent Ithat Ihis Order i, enforced bh a1 Judgment of , I 'it ted
Stales Coiurt (of Appeals, the "ords in Ihe nolcii c rTlding "Poited h1
Order of the National I.ahor Relation, IBo ard", h;lil read "l'o.ted P'uril-
ant to a Judgment of the lUnited Slate.. C'ourt of Appeal I linfiorilg i
Order of the National L abor Relalion, , Bioard "
APPENDIX
NOT ICI 10 EMPI!O OI. S
PoSTII ) B ORDI)IR Of IHI
NATIONAI LABOR Rl. At IONS BOARI)
An Agency of the United States Government
WIL Wll l NOt refuse to bargain collectively
concerning rates of pay, wages. hours, and
other terms and conditions of employment
I)tECISI()NS ()F NAI ()ONAI I.ABOR RE.ATI()NS BOARI)
with Retail Store Employees Union, Local
876, United Food and Commercial Workers
International Union, AFL-CIO, as the exclu-
sive representative of the employees in the
bargaining units described below.
Wli WIllI NOI in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WI: wni.i, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if understandings
are reached, embody such understandings in a
signed agreement. The bargaining units are:
All full-time and regular part-time employ-
ees, including all tellers, receptionists, secre-
taries, clerical employees, co-op students,
management trainees, housekeeping employ-
ees, assistant branch manager and branch ad-
ministrative assistant employed by the Em-
ployer at its facility located at branch #2,
1028 Oak Street, Wyandotte, Michigan, but
excluding all branch managers, driver-mes-
sengers, guards and supervisors as defined in
the Act.
All full-time and regular part-time employ-
ees, including all tellers, receptionists, secre-
taries, clerical employees, co-op students,
management trainees, housekeeping employ-
ees, assistant branch manager and branch ad-
ministrative assistant employed by the Em-
ployer at its facility located at branch #12,
10680 Haggerty Road, Belleville, Michigan,
but excluding all branch managers, driver-
messengers, guards and supervisors as de-
fined in the Act.
All full-time and regular part-time employ-
ees, including all tellers, receptionists, secre-
taries, clerical employees, co-op students,
management trainees, housekeeping employ-
ees, assistant branch managers and branch
administrative assistant employed by the
Employer at its facility located at branch
#9, 20659 Northline Road, Taylor, Michi-
gan, but excluding all branch managers,
driver-messengers, guards and supervisors as
defined in the Act.
WY AND)()O 'I SAVINGS BANK