Banco Credito y Ahorro Ponceno

National Labor Relations Board - Board Decisions

Sep 12, 1967

167 N.L.R.B. 397 (N.L.R.B. 1967)

BANCO CREDITO Y AHORRO PONCENO 397
Banco Credito y Ahorro Ponceno and International
Brotherhood of Boilermakers , Iron Shipbuilders,
Blacksmiths , Forgers and Helpers , District Lodge
3 of Puerto Rico , AFL-CIO. Case 24-CA-2347
September 12, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
Upon a charge filed by International Brother-
hood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, District Lodge
3 of Puerto Rico, AFL-CIO, herein called the
Union, the General Counsel for the National Labor
Relations Board, by the Regional Director for Re-
gion 24, issued a complaint dated May 18, 1967,
against Banco Credito y Ahorro Ponceno, herein
called Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, Series 8, as amended. Copies of the
charge and of the complaint and notice of hearing
were duly served upon the Respondent and the
Union.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on February
1, 1967, the Regional Director for Region 24 cer-
tified the Union as the collective-bargaining agent
of the Respondent's employees in the unit found
appropriate,' which action was subsequently con-
firmed by the Board, and that, since on or about
March 31, 1967, the Respondent has failed or
refused to recognize and bargain with the Union as
the exclusive bargaining agent of the employees at
the Respondent's Arecibo branch, although the
Union has requested and is requesting it to do so.
On June 5, 1967, the Respondent filed its answer,
denying the commission of the unfair labor prac-
tices alleged, and presenting an affirmative defense
to the allegations.
On June 13, 1967, the General Counsel filed with
the Board a motion to strike portions of the Respond-
ent's answer and for summary judgment, sub-
mitting , in-effect, that the Respondent's answer, in-
cluding its affirmative defense, raised no issues
which have not been previously litigated in the prior
representation case (Case 24-RC-2882) and, there-
fore, that an order should be issued striking certain
portions of the Respondent's answer, namely, its af-
firmative defense, finding all allegations of the com-
plaint to be true, and granting his motion for sum-
mary judgment. The General Counsel further
moved that prior to, and without the necessity of a
hearing, the Board issue a decision against the
Respondent containing findings of fact and conclu-
sions of law in accordance with the allegations of
the complaint, and an order remedying the unfair
labor practices so found. Thereafter, on June 19,
1967, the Board issued an order transferring the
proceeding to the Board and a notice to show cause,
on or before July 3, 1967, why the General Coun-
sel's motion to strike portions of Respondent's
answer and for summary judgment should not be
granted. On July 12, 1967, the Respondent filed an
opposition to General Counsel's motion to strike
portions of Respondent's answer and for summary
judgment.
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
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion to Strike Portions of
Respondent's Answer and for Summary Judgment
In its opposition to the General Counsel's motion
to strike portions of Respondent's answer and for
summary judgment, the Respondent contends, in
substance, that it is entitled to have a hearing before
a Trial Examiner with respect to (1) allegations of
the complaint pertaining to its refusal to bargain,
which, it-is stated, are based in part on nonauthen-
ticated documents and thus are legally insufficient
to support a motion for summary judgment, and (2)
its affirmative defenses that the unit is inappropriate
and that its objections to the election should either
have been sustained or resolved after a hearing. We
find these contentions to be without merit. As to
(1), we are satisfied that the allegations of the com-
plaint with respect to 'the Respondent's refusal to
bargain are amply supported,2 and as to (2), the
' Supplemental Decision and Certification of Representative issued
February 1, 1967, in Case 24-RC-2882 (not published in NLRB
volumes).
2 The Respondent contended with respect to the written documents
submitted by the General Counsel in support of the complaint (1) that a
photostatic copy of a letter from the Respondent Employer to the editor
of the San Juan Star newspaper dated February 10, 1967, and appearing
on page 10 of that newspaper on February 21, 1967, had not been authen-
ticated by the General Counsel, (2) that a photostatic copy of an English
translation of a letter from the Respondent Employer to the Union dated
March 31, 1967, had likewise not been authenticated; and (3) that a letter
from the Respondent Employer to the Union dated April 21, 1967,
though admittedly signed by the Respondent 's assistant executive vice-
president , did not constitute a refusal to bargain.
We note that the Respondent 's technical objections regarding authenti-
cation of two documents are not accompanied by any claim that the docu-
ments are incorrect In any event , the Respondent 's refusal to bargain is
fully established by the following documents, which have not been chal-
lenged by the Respondent:(]) the Union's letter of April 5, 1967, in
response to the Respondent's aforesaid letter of March 31, 1967, stating,
in pertinent part, that "I acknowledge receipt of your letter dated March
31, 1967, refusing to negotiate the collective -bargaining agreement for the
Bank's branch in Arecibo [P . R], alleging that the unit that the Board cer-
tified is not appropriate for the purposes of collective bargaining," and (2)
the Respondent's aforesaid letter to the Union dated April 21, 1967, in
answer to the Union's April 5 letter, stating that "Due to the nature of our
operations, no branch of this bank can be considered as a nucleus
separated from the whole The employees of the Arecibo Branch con-
stitute solely one fraction of the organism of the institution taken as a
whole . It is for this reason that we have been forced to take the position
you already know regarding said branch."
167 NLRB No. 52
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's affirmative defenses are merely at-
tempts to relitigate matters decided by the Board in
the prior representation proceeding.
The record before us establishes that pursuant to
the Board's Decision and Direction of Election
dated September 30, 1966,3 a secret-ballot elec-
tion was conducted among the employees at the
Respondent's Arecibo branch, bank under the su-
pervision of the Regional Director for Region 24,
on October 27, 1966, in which, of approximately 24
eligible voters, 23 cast valid ballots, of which 19
were for the Union herein, none for the Union de
empleados de Oficinas de Bancos y Financieras,
afiliada a Office and Professional Employees Inter-
national Union, AFL-CIO, 4 against the participat-
ing labor organizations, with , I challenged ballot.
The challenged ballot was not determinative of the
election results. Thereafter, on November 4, 1966,
the Employer filed timely objections to conduct af-
fecting the results of the election. After an adminis-
trative investigation, the Regional Director, on
February 1, 1967, issued a Supplemental Decision
and Certification of Representative, in which he
recommended that the Employer's objections be
overruled in their entirety, and thereupon issued a
Certification of Representative to the Union herein
as exclusive bargaining representative of the Em-
ployer's employees. The Employer's request for
review of the Regional Director's decision was de-
nied by the Board on March 15, 1967.
On March 15 and 28, and April 5, 1967, the
Union addressed letters to the Respondent
requesting negotiations for a contract to cover the
Respondent's employees at its Arecibo branch
bank. In response to these requests, the Respond-
ent, by letters dated March 31 and April 21, 1967,
advised that it would not negotiate with the Union
because it considered the Board's unit determina-
tion to be erroneous.4
We find no merit in the Respondent's contention
that the requestedunit was inappropriate. It is well
established that, in the absence of newly discovered
or previously unavailable evidence, a respondent is
not entitled to relitigate in a Section 8(a)(5)
proceeding issues which were or could have been
raised in a related representation proceeding.5
As all material issues have been previously de-
cided by the Board, or stand admitted by the failure
of the Respondent to properly controvert the aver-
ments of the General Counsel's motion, there are
no matters requiring a hearing before a Trial Ex-
aminer . Accordingly, the General Counsel's motion
to strike portions of Respondent's answer and for
summary judgment is granted. On the basis of the
record before it, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is, and has been at all times
material herein, a corporation duly organized and
existing under the banking laws of the Common-
wealth of Puerto Rico, and is engaged in a commer-
cial and general banking business on the island of
Puerto Rico, where it operates 29 banking
establishments. During the past year, in the course
and conduct of its banking operations in the Com-
monwealth of Puerto Rico, the Respondent
received moneys and credits valued in excess of
$50,000, which were sent directly to its banking of-
fices in Puerto Rico from points located outside the
Commonwealth of Puerto Rico. During the same
period, it furnished moneys and credits and banking
services valued in excess of $50,000 to persons and
firms engaged in interstate commerce. Its gross an-
nual income from its banking business is in excess
of $50,000.
We find, on the basis of the foregoing, that the
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.6
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers,
District Lodge 3 of Puerto Rico, 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
At all times material herein, the following em-
ployees of the Respondent have constituted a unit
appropriate for collective bargaining within the
meaning of the Act:
All employees employed by the Employer at
Arecibo, Puerto Rico, including accountants,
secretary to manager, paying and receiving tel-
lers, loan interviewers, bookkeeping machine
operators, senior utility clerks, senior account-
ing clerks, current accounts clerks, senior col-
lection clerks, collectors, janitors, accounting
clerks, executive secretary, senior current ac-
3 160 NLRB 1504
The Apnl 21 letter alone would sufficiently establish the Respond-
ent's refusal to bargain in these circumstances See fn. 2 above
S Pittsburgh Plate Glass Company v N L R B, 313 U S 146
6 We note that the Board asserted jurisdiction over the Respondent in
the related representation proceeding See Banco Creduo y Ahorro Pon-
ceno, 160 NLRB 1504
BANCO CREDITO Y AHORRO PONCENO 399
counts clerks, proof machine operators, and
exchange clerks, but excluding executive,
professional personnel, managers, sub-
managers, guards, and supervisors as defined
in the Act.
2. The certification
On October 27, 1966, a majority of the em-
ployees of the Respondent in said unit, in a secret
election conducted under the supervision of the Re-
gional Director for Region 24, designated the
Union as their representative for the purpose of col-
lective bargaining with the Respondent. On Febru-
ary 1, 1967, the Regional Director for Region 24
certified the Union as the collective-bargaining
representative of the employees in said unit. The
Board denied Respondent's request for review of
the certification, and the Union continues to be
such representative.
B. The Request to Bargain and the Respondent's
Refusal
Commencing on or about March 15, 1967, and
continuing to date, the Union has requested and is
requesting the Respondent to bargain collectively
with it as the exclusive collective-bargaining
representative of all the employees in the above-
described unit. Since on or about March 31, 1967,
and continuing to date, the Respondent did refuse,
and continues to refuse, to bargain collectively with
the Union as the exclusive collective-bargaining
representative of all the employees in said unit.
We find that the Union has been at all times since
February 1, 1967, and now is the exclusive bargain-
ing representative of all the employees in the above-
described unit, within the meaning of Section 9(a)
of the Act. We further find that the Respondent has,
since on or about March 31, 1967, refused to bar-
gain collectively with the Union as the exclusive
bargaining representative of its employees in the ap-
propriate unit, and that, by such refusal, the
Respondent has engaged in, and is engaging in, un-
fair 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 sec-
tion 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 commerce and the free flow of com-
merce.
tion 8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom and, upon request, bar-
gain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit, and, if an understanding is reached, embody
such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Banco Credito Y Ahorro Ponceno is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths, Forgers and Hel-
pers, District Lodge 3 of Puerto Rico, AFL-CIO,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All employees employed by the Employer at
Arecibo, Puerto Rico, including accountants, secre-
tary to manager, paying and receiving tellers, loan
interviewers, bookkeeping machine operators,
senior utility clerks, senior accounting clerks, cur-
rent accounts clerks, senior collection clerks, col-
lectors, janitors, accounting clerks, executive secre-
tary, senior current accounts clerks, proof machine
operators, and exchange clerks, but excluding ex-
ecutive, professional personnel, managers, sub-
managers, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since February 1, 1967, 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 March 31, 1967, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of the Respondent in the aforesaid unit , the Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining , and coercing its
employees in the exercise of the rights guaranteed
to them in Section 7 of the Act, and has thereby 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
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
400 DECISIONS OF NATIONAL
Relations Board hereby orders that the Respond-
ent, Banco Credito y Ahorro Ponceno, Arecibo,
Puerto Rico, its officers, agents, successors, and as-
signs , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages , hours, and other terms and con-
ditions of employment, with International Brother-
hood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, District Lodge
3 of Puerto Rico, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All employees employed by the Employer at
Arecibo, Puerto Rico, including accountants,
secretary to manager, paying and receiving tel-
lers, loan interviewers, bookkeeping machine
operators, senior utility clerks, senior account-
ing clerks, current accounts clerks, senior col-
lection clerks, collectors, janitors, accounting
clerks, executive secretary, senior current ac-
counts clerks, proof machine operators, and
exchange clerks, but excluding executive,
professional personnel, managers, sub-
managers , guards, and supervisors as defined
in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the exer-
cise of the rights guaranteed to them by 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 unit
with respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
(b) Post at its Arecibo, Puerto Rico, place of
business, copies of the attached notice marked
"Appendix."7 Copies of said notice, to be furnished
by the Regional Director for Region 24, after being
duly signed by the Respondent's representative,
shall be posted by the 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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(c) Notify said Regional Director for Region 24,
in writing, within 10 days from the date of this Deci-
sion and Order, what steps the Respondent has
taken to comply herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order," the words "a Decree of the United States Court of Appeals, En-
forcing and Order."
LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forg-
ers and Helpers, District Lodge 3 of Puerto
Rico, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees 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 represen-
tative of all our 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 an understanding
is reached, embody such understanding in a
signed agreement.
The bargaining unit is:
All employees employed by the Em-
ployer at Arecibo, Puerto Rico, including
accountants, secretary to manager, paying
and receiving tellers, loan interviewers,
bookkeeping machine operators, senior
utility clerks, senior accounting clerks,
current accounts clerks, senior collection
clerks, collectors, janitors, accounting
clerks, executive secretary, senior current
accounts clerks, proof machine operators,
and exchange clerks, but excluding execu-
tive, professional personnel , managers,
submanagers, guards, and supervisors as
defined in the Act.
BANCO CREDITO Y
AHORRO PONCENO
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 7th Floor, El Hato Rey Building, 255 Ponce
de Leon Avenue, Hato Rey, Puerto Rico 00919,
Telephone 765-1125.