American National Bank and Trust Co. of Chicago

National Labor Relations Board - Board Decisions

Oct 31, 1946

71 N.L.R.B. 503 (N.L.R.B. 1946)

In the Matter of AMERICAN NATIONAL BANK AND TRUST COMPANY OF-
CHICAGO AND AMERICAN NATIONAL SAFE DEPOSIT COMPANY, ITS
WHOLLY-OWNED SUBSIDIARY, EMPLOYERS and PROTECTIVE SERVICE
EMPLOYEES UNION OF CHICAGO LOCAL 240, AFFILIATED WITH BUILD-
ING SERVICE EMPLOYEES INTERNATIONAL UNION (A. F. OF L.), PETI-
TIONER
Case No. 1d'-R 1921..-Decided October 31, 1946
Jacobson , Nieman & Silbert, by Mr. Lewis F . Jacobson , of Chicago,
Ill., for the Employers.
Messrs. Daniel D. Carmell, Leo Segall , and John Arnett , of Chicago,
Ill., for the Petitioner.
Mr. Melvin J. Welles , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Chicago,
Illinois, on November 1, 2, 10, 16, and 30 and December 14 and 28,
1943, January 17 and 28 and February 7 and 16, 1944, and June 28,
1946, before Robert R. Rissman and Herman J. DeKoven, hearing of-
ficers. The hearing officers' rulings made at the hearing are free from
prejudicial error and are hereby affirmed. At the hearing, the Em-
ployer moved to dismiss the petition on various grounds, in substance
as follows : (1) The National Labor Relations Act is unconstitu-
tional; (2) the hearing officer (formerly designated as "Trial Exam-
iner") engaged in an extra-legal search and unlawfully acted as
prosecutor, judge, and jury in the conduct of the case; (3) the Peti-
tioner does not represent any of the employees involved in this proceed-
ing; (4) the Petitioner's amended petition does not conform to Article
III of the Board's Rules and Regulations (Series 2-as amended) ; (5)
the Employers are not engaged in commerce within the meaning of
the Act; and (6) the unit petitioned for is inappropriate. In addition,
the Employer moved to strike certain amendments to the Board's Rules
and Regulations as unconstitutional.
The Employers' first ground in support of its motion to dismiss,
that the National Labor Relations Act is unconstitutional, is patently
71 N. L. R. B., No 77.
503
504 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without merit. The Supreme Court upheld the constitutionality of the
Act in 1937?
We also find no merit in the Employers' contention that the hear-
ing officer engaged in an extra-legal search and unlawfully acted as
prosecutor, judge, and jury in the conduct of this case. With respect
to the alleged "extra-legal search," it is sufficient to note that the Cir-
cuit Court of Appeals affirmed the District Court's order enforcing
the Board's subpenas daces tecum, used by the Board to conduct this
search.' As to the allegation that the hearing officer acted as prosecu-
tor, judge, and jury, it has been asserted repeatedly that a representa-
tion case, such as the present proceeding, is investigatory in nature,
designed merely to ascertain whether or not a question concerning
representation exists, which question the Board may resolve by di-
recting elections in appropriate units. There is nothing adversarial
in such a proceeding. The company or companies involved are des-
ignated not as respondents, but as Companies or Employers. The
hearing officer assists in this investigation; it is his duty to see to it
that a record is made of all evidence relevant to the question concern-
ing representation and the appropriate unit. He acts as agent of the
Board for this purpose, and as such is neither prosecutor, judge, nor
jury, either at the same time, or at any time. For the same reason,
we deny the Employers' motion to strike certain amendments to the
Board's Rules and Regulations.-3
The Employers' contention that the petition should be dismissed
on the asserted ground that the Petitioner does not represent any of
the employees involved in this proceeding is also without merit. When
the hearing in this case began, on November 1, 1943, the Petitioner
satisfied the Board's requirements that it produce a sufficient showing
of interest to warrant a representation proceeding. The hearing
was not completed until June 28, 1946. However, this proceeding has
been a single continuous investigation, and there was only one hear-
ing in this case. The protracted period of time during which it was
held does not invalidate the Petitioner's original showing of interest.
Furthermore, as we have declared in numerous cases, the question of
whether or not a petitioner has made a sufficient prima facie showing
of interest to warrant the conduct of a representation election is an
administrative platter, and is, therefore, not subject to direct or
collateral attack by any of the parties to the proceeding's
1 N L R. B. v. Jones & Laughlin Steel Corporation, 301 U S. 1
2N L R B v American National Bank and Trust Co, 148 F (2d) 24 (C C. A 7),
certiorari denied 326 U S 731.
3 The amendments in question are those of January 18 and October 12, 19, and 20. 1943,
designated as Z-1905, Z-2073 , Z-2074 and Z-2075 The Employers ' objections , in sub-
stance, are that these amendments provide , cuter alia, that certain files and records are in
the exclusive custody of the Board and are not subject to inspection, and that Board em-
piovees are prohibited from producing files, records, etc , pursuant to subpena daces tecum
4.lfatter of Nash Motors Division of Nash -Kelvinator Sales Corporation ( Philadelphia
Zone ), 68 N L It B 651; Matter of 0. D Jennings & Company, 68 N L R B 516
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO 505
The Employers base their motion to dismiss on the further allega-
tion that the Petitioner 's amended petition does not conform to Article
III of the Board 's Rules and Regulations , Series 2-as amended. We
are of the opinion that the amended petition is substantially in con-
formance with these Rules and Regulations.
For these reasons, and, with respect to the remaining grounds upon
which the Employers ' motion to dismiss is based, for the reasons set
forth in Sections I and IV, infra, the motions of the Employers are
hereby denied.
The Employers ' request for oral argument is denied inasmuch as
the record , in our opinion , adequately presents the issues and posi-
tions of the parties.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
The parties stipulated to the following facts concerning the busi-
ness of the Employers :
American National Bank and Trust Company of Chicago, herein
called the Bank, is a National banking association , organized and ex-
isting under and by virtue of the laws of the United States. Its
Charter was issued June 20, 1928, at which time it was known as
Straus National Bank and Trust Company. On January 3, 1933, its
name was changed to American National Bank and Trust Company
of Chicago, pursuant' to a Certificate of Change of Corporate Title
issued on that date by the Acting Comptroller of the Currency.
The Bank also acts as a trust company, by virtue of a Certificate of
Authority issued June 20, 1928, by the Federal Reserve Board and a
Certificate issued June 27, 1928, by the Auditor of Public Accounts
of the State of Illinois.
The Bank is now a stockholder in the Federal Reserve Bank of
Chicago, Illinois, in accordance with the provisions of the Federal
Reserve Act as amended, and is a duly qualified member of the Federal
Reserve system. It is also an insured bank under the Federal Deposit
Insurance Corporation.
As of March 30, 1946, the total assets of the Bank amounted to
$223,146,282 .89, and $106 ,175,842.47 of such assets represented in-
vestments in securities of the United States Government. As of the
same date, loans and discounts outstanding were valued at $58,165,-
536.36; deposits exceeded $197,000,000; capital, surplus , and undi-
vided profits amounted to more than $6,500 ,000; and municipal bonds
held by the Bank totaled more than $15 ,000,000.
During the period from January 1 , 1946, to March 30, 1946 , inclu-
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive, transit items forwarded to banks outside the State of Illinois
aggregated $389,546,316.50. During the same period the Bank issued
letters of credit and travelers' checks aggregating more than $1,000,-
000, and maintained deposit accounts in other banks located in the
States of New York, Massachusetts , Pennsylvania , Michigan, Mis-
souri, Minnesota , and California . The physical properties of the
Bank are located at 33 North LaSalle Street, Chicago, Illinois.
American National Safe Deposit Company , herein called the Safe
Deposit Company , is an Illinois corporation , engaged in the business
of renting safe deposit space to such members of the public as appear
at its place of business, located within the building occupied by the
American National Bank and Trust Company at 33 North LaSalle
Street, Chicago, Illinois. The entrance to the safe deposit vaults is
a short distance from the entrance to the bank , on the ground floor of
the building . The Safe Deposit Company is a tenant of LaSalle Street
Buildings, Inc., of which the Bank is also a tenant.
All of the stock of the Safe Deposit Company is owned by the
Bank. Each of the officers of the Safe Deposit Company, is also an
officer of the Bank. The Safe Deposit Company and the Bank also
have two directors in common.
During the period from January 1 to April 30, 1946, the Safe De-
posit Company received $19,151.20 in rentals for safety deposit
boxes. Additional income of the Safe Deposit Company during the
same period amounted to $4,425 .30. As of April 30, 1946, the Safe
Deposit Company had approximately 7,500 safety deposit boxes under
lease, of which approximately 50 were leased to persons who gave per-
manent addresses outside the State of Illinois. Approximately 20
percent of the safety deposit box lessees are also, customers of the
Bank.
All mail addressed to the Safe Deposit Company is received
through the mailing division of the Bank, although none of the mail
addressed to the Bank is received through the Safe Deposit Company,
and outgoing mail is handled in each case by the sender. A bronze
plaque on the outside of the building indicates that safety deposit
boxes are available. An illuminated glass sign and occasional card-
board sib is inside the Bank quarters advertise the Safe Deposit
Company, but the charge is paid directly by the latter. No reference
to the Bank is made directly in the advertising of the Safe Deposit
Company, although small cardboard cards advertising the Trust
Department of the Bank are located in some of the private customer
rooms of the Safe Deposit Company. The Bank has solicited business
for the Safe Deposit Company by letters mailed to Bank customers
and literature enclosed with customers' statements.
No officers or employees of the Bank have access to keys of un-
rented safety deposit boxes of the Safe Deposit Company, or access to
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO 507
safes where such keys are located, nor do any such officers or em-
ployees have control over the release of such keys. Furthermore,
the Bank keeps no original or duplicate records of articles lost in
the Safe Deposit Company.
The Employers assert that they are not subject to the jurisdiction
of the Board, contending that neither the Bank nor the Safe Deposit
Company is engaged in interstate commerce. This contention is with-
out merit.i The Employers contend further that even if the Bank
itself is found to be engaged in interstate commerce, the employees
sought by the Petitioner are not engaged in such commerce. This
contention is also without merit.6 In addition to the stipulated facts
above, the following evidence was adduced at the hearing : Em-
ployees of the Bank have solicited customers for the Safe Deposit
Company, and have received commissions for such services. An
employee lunch room is used by employees of both the Bank and the
Safe Deposit Company. An annual golf party is open to employees
of the Bank and the Safe Deposit Company. The Bank's elevators
are available for customers of the Safe Deposit Company. The Safe
Deposit Company's vaults adjoin the cash and security vaults of the
Bank. Records of the Safe Deposit Company are kept in an office
on the bank's premises, which is occupied by a vice president of the
Safe Deposit Company, who is also an assistant vice president of
the Bank. From all evidence, and because of the corporate inter-
relationship it is clear that the operations of the Safe Deposit Com-
pany are so closely integrated with those of the Bank that the two
institutions in reality constitute a single business enterprise which
falls within the purview of Section 2 (2) of the Act.7
We find that the Bank and the Safe Deposit Company are engaged
in commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the
Employers.
III. THE QUESTION CONCERNING REPRESENTATION
The Employers refuse to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employers.
5 Matter of City National Bank and Trust Company of Chicago, and City National Safe
Deposit Company, its wholly -owned subsidiary , 50 N. L. R. B 516 , and cases cited therein.
See N. L. R. B. v . Bank of America, 130 F. ( 2d) 624 ( C. C. A. 9 ), certiorari denied 318
U. S. 791.
6 Matter of City National Bank and Trust Company of Chicago, and City National Safe
Deposit Company, its wholly -owned subsidiary , supra.
i Ibid.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employers, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act. -
IV. THE APPROPRIATE UNIT
The Petitioner seeks a single unit comprised of all guards of the
Bank, including night watchmen, and all custodians, inspectors, at-
tendants, and gatemen of the Safe Deposit Company, but excluding
clerical employees, employees in the mail and messenger department,
the captain of police, managers, and all supervisory employees. The
Employers contend, as indicated above, that no unit is appropriate.
However, they further contend that if the Board assumes jurisdiction,
the unit is impractical because it combines plant-protection employees
with other employees.
As indicated above, the Bank and the Safe Deposit Company con-
stitute a single integrated enterprise, and we are of the opinion that
they constitute a single employer within the meaning of Section 2 (2)
of the Act, and that the employees of the Bank and of the Safe Deposit
Company might constitute a single appropriate units The following
facts adduced at the hearing also demonstrate the appropriateness of a
single unit containing employees of both the Bank and the Safe De-
posit Company : The Bank's assistant vice president in charge of per-
sonnel, who hires Bank guards, also, in his capacity as vice president
of the Safe Deposit Company, hires and discharges Safe Deposit Com-
pany employees. The schedules and number of working hours of all
the employees concerned are substantially the same. Both groups of
employess are salaried, and the starting salary of the Safe Deposit
Company custodians and the Bank guards is the same, other factors
being equal. Three of the Bank guards, in fact, receive the same
salary as three of the Safe Deposit Company employees. The Bank
and Safe Deposit Company employees enjoy the same vacation rights,
Christmas bonuses, sick leave, and various other privileges. Further-
more, an employee lunch room is used by both groups of employees,
an annual golf party is open to all employees, and the Bank's elevators
are used by employees of both the Bank and the Safe Deposit Company.
The Bank employs approximately eight guards on day duty, who
guard the Bank premises, direct customers to various places at the
Bank, and admit persons through various gates located on the Bank
premises. It employs two night watchmen, who patrol the Bank
6 Matter of City National Bank and Trust Company of Chicago, and City National Safe
Deposit Company , sts wholly-owned subsidiary , supra, and cases cited in footnote 6 therein.
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO 509
premises. Both the guards and the watchmen are armed.' The
guards are uniformed, although the watchmen are not. The watch-
men are under the supervision of the person to whom the guards'
immediate supervisor is responsible. The salaries and terms and
conditions of employment are the same for both the guards and
the watchmen.
The Safe Deposit Company employs three custodians, an attendant
(also known as inspectors) and a gateman. All five employees per-
form their services in the vicinity of the Safe Deposit Company's
vault. The custodians open the safe deposit boxes for the customers.
The attendant directs customers to rooms near the vault reserved for
customer use and inspects these rooms after the customers leave. The
gateman is stationed at the entrance to the vault and opens the gate
for the customers. The attendant is the only one of the five employees
who is armed, although all five are, uniformed. The five employees
relieve each other occasionally, and all are under the supervision of the
same person. The terms and conditions of employment, and the rights
and privileges of all five are the same, and they use the same facilities.
Although the Employers contend that the unit is impractical inso-
far as it combines plant-protection employees with other employees,
it is clear from the record that the duties of all the employees involved
herein are substantially those of plant-protection employees, and de-
spite the different classifications, such as night watchmen, custodians,
attendants, and gatemen, all of these employees are, in effect, guards.
We find, accordingly, that all guards, employed by the Bank, includ-
ing night watchmen, and all custodians, inspectors, attendants, and
gatemen employed by the Safe Deposit Company, excluding clerical
employees, employees in the mail and messenger department,10 the
captain of police, managers, and all other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with American National Bank and
° None of the employees involved in this proceeding is militarized. All armed employees
are deputized as special policemen of the city of Chicago, under a city ordinance which pro-
vides for such deputlzatlon of persons who acquire permits to carry a gun . These em-
ployees are, however , admittedly employees of the Bank or Safe Deposit Company, and not
the city of Chicago.
1° It is clear from the record that these employees have substantially different duties from
those of the employees included in the appropriate unit At the hearing , the Petitioner
indicated that it desired an election among the employees in the mail and messenger depart-
ment in a separate unit. Subsequently, however, the Petitioner changed its position, and
does not now desire such an election. '
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
Trust Company of Chicago and American National Safe Deposit
Company, its wholly-owned subsidiary, Chicago, Illinois, an election
by secret ballot shall be conducted as early as possible, but not later
than thirty (30) days from the date of this Direction, under the direc-
tion and supervision of the Regional Director for the Thirteenth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Sections 203.55 and 203.56, of National
Labor Relations Board Rules and Regulations-Series 4, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work during
said pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
those employees who have since qi}it or been discharged for cause and
have not been rehired or reinstated prior to the date of the election, to
determine whether or not they desire to be represented by Protective
Service Employees Union of Chicago, Local 240, affiliated with Build-
ing Service Employees International Union (A. F. of L.), for the
purposes of collective bargaining.