Monarch Federal Savings & Loan Assn.

National Labor Relations Board - Board Decisions

Apr 17, 1979

241 N.L.R.B. 893 (N.L.R.B. 1979)

MONARCH FEDERAL. SAVINGS & I.OAN ASSN.
Monarch Federal Savings & Loan Association and In-
ternational Brotherhood of Electrical Workers, Lo-
cal Union 1159. AFI,-CIO. Case 22 CA 8627
April 17. 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN(G ANI) MFMBFRS JNKINS
ANI) MU RPHY
Upon a charge filed on August 4, 1978, by Interna-
tional Brotherhood of Electrical Workers. Local
Union 1159, AFL CIO, herein called the Union. and
duly served on Monarch Federal Savings & Loan As-
sociation. herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 22, issued a com-
plaint on August 30, 1978, against Respondent. alleg-
ing that Respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (I) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charge, complaint,
and notice of hearing before an Administrative Law
Judge were duly served on the parties to this proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on June 29, 1978, fol-
lowing a Board election in Case 22-RC-7168, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about July 17, 1978, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so.2 On
September 14, 1978, Respondent filed its answer to
the complaint admitting in part. and denying in part,
the allegations in the complaint
On January 9, 1979, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on January 16, 1979,
the Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why the
' Official notice is taken of the record in the representation proceeding.
Case 22-RC-7168, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations. Series 8. as amended. See
LTV Electrosystems, Inc.. 166 NLRB 938 (1967). enfd. 388 F.2d 683 4th Cir.
1968); Golden Age Beverage Co.. 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th Cir 1969): Intertype Co. v. Penello. 269 F.Supp. 573 (D.C.Va. 1967):
Follerr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir 1968): Sec
9(d) of the NLRA, as amended.
2
In an August 15, 1978. letter to the Board, Respondent stated that it was
refusing to bargain with the Union in order to test the certification.
) In its answer. Respondent admits that since July 13, 1978. it has refused
to recognize and bargain with the Union
General Counsel's Motion for Summary Judgment
should not he granted. Respondent thereafter filed a
response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National abor Relations Act, as amended. the Na-
tional abor 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
In its answer to the complaint and in its response to
the Notice To Show Cause, Respondent admits to the
Union's request and its refusal to bargain, but con-
tends that the Union's certification was improper be-
cause the Board erred in disposing of its election ob-
jection and challenged ballots in the underlying
representation proceeding. Respondent further con-
tends, in response to the complaint, that the secrecy
of the ballot was destroyed by the Board's piecemeal
opening of the challenged ballots and that the turn-
over in personnel and the passage of time since the
certification has rebutted the presumption of the
Union's majority status. The General Counsel, on the
other hand, contends that all of these matters either
were or should have been raised in the underlying
representation proceeding.
The record herein, including that in the representa-
tion proceeding, Case 22-RC-7168,4 establishes that
in the election conducted on June 22, 1977, pursuant
to a Stipulation for Certification Upon Consent Elec-
tion, there were nine votes cast for, seven votes cast
against, the Union, and three determinative chal-
lenged ballots. Respondent filed timely objections to
the election alleging, inter alia. that the Union made
substantial and material misrepresentations during
the election campaign; that the Union campaigned in
the immediate vicinity of the polling area, while the
polls were open: and that supervisory personnel par-
ticipated in the election and unduly influenced the
election. After investigation the Regional Director, on
August 12, 1977, issued his Report on Challenged
Ballots and Objections finding that one of the three
challenges should be overruled, one should be sus-
tained, and one should remain undetermined pending
the disposition of the unfair labor practice case re-
garding the discharge of the challenged voter and,
further, that Respondent's objections should be over-
ruled in their entirety. Respondent filed limited ex-
ceptions, contesting the Regional Director's rulings
on the challenged ballots, the overruling of the objec-
tions alleging improper campaigning near the polling
' Reported at 236 NLRB 874 11978).
241 NLRB No. 135
893
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area, and the participation and influence of supervi-
sors in the election.5
On June 13, 1978, the Board issued a Decision, Di-
rection, and Order6 in which it adopted the Regional
Director's findings and recommendations, with a
modification. 7 Pursuant to the Board's direction, the
Regional Director opened and counted the determi-
native challenged ballot of Delores Rodriguez and,
thereafter, issued a revised Tally of Ballots which
showed that 10 votes were cast for, and 7 against, the
Union. There remained one challenged ballot which
was no longer determinative of the election results.
Thereafter, on June 29, 1978, pursuant to the revised
tally of ballots, the Union was certified.
It is well settled that in the absence of newly dis-
covered 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. 8
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding,9 and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
5 Respondent did not file exceptions to the Regional Director's recommen-
dation that its Objection 1, which alleged substantial and material campaign
misrepresentations by the Union, be overruled.
6 236 NLRB 874 1978).
7 The Regional Director had noted that in the event the challenged ballot
cast by Delores Rodriguez was against the Union. the challenged ballot of
Louise McMillan, the alleged discriminatee, would then become determina-
tive. In such an event, the Regional Director recommended that McMillan's
ballot be opened and, if she had cast a ballot for representation, her ballot
would no longer be determinative and a certification could issue. On the
other hand, if McMillan's ballot was cast against representation, her ballot
would remain determinative and her status as an eligible voter and the re-
sults of the election would have to await the final resolution of the unfair
labor practice matter involving her discharge. The Board, Member Murphy
dissenting, modified the Regional Director's recommendation, holding that
absent an explicit waiver by McMillan of her right to a secret ballot. her
ballot should not be opened and counted until her status was determined by
the Board in the unfair labor practice case. The Board did not modify any
other aspect of the Regional Director's Report.
'See Pittsburgh Plute Glass Co v. N.l.R.B., 313 U.S. 146, 162 (1941)1
Rules and Regulations of the Board. Secs. 102.67(f) and 102.6
9
(c).
9 Respondent did not except to the Regional Director's overruling of its
Objection I alleging substantial and material campaign misrepresentations
by the Union. In fn. 2 of its Decision, the Board, pro forma, adopted the
Regional Director's overruling of Respondent's Objection I. In response to
the complaint herein, Respondent has attempted to raise anew its misrepre-
sentation objection. As indicated in Secs. 102.67(f) and 102.69(c) of the
Board's Rules and Regulations cited above, the failure to except to an issue
in the representation proceeding precludes the later litigation of that issue in
the subsequent unfair labor practice proceeding. We find, therefore, that
Respondent's failure to timely except to the overruling of its misrepresenta-
tion objection precludes it from raising the misrepresentation issue herein,
Moreover, Chairman Fanning and Member Jenkins find that under General
Knit of California. Inc. 239 NLRB 619 (1978) (Members Penello and Mur-
phy dissenting, Respondent's misrepresentation objection is insufficient to
warrant setting the election aside. Member Murphy finds no merit in the
misrepresentation allegation for the reasons set forth in her separate opinion
in Shopping Kurt Fod Market. Inc . 228 NI.RB 1311 (1977).
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceed-
ing.'° Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACr
1. THE BUSINESS OF RESPONI)ENF
Respondent is a savings and loan association oper-
ating under a charter of the United States Govern-
ment. Its main branch and principal office is located
in Kearney, New Jersey, and it also maintains various
other offices in the State of New Jersey, including
branch offices in Toms River and Morristown, New
Jersey. Respondent is engaged in the business of pro-
viding banking and other related services. During the
preceding 12 months, in the course of its business op-
erations, Respondent derived gross revenues in excess
of $500,000, and transferred funds in excess of
$50,000 to banks located outside the State of New
Jersey.
We find, on the basis of the foregoing, that Respon-
dent 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. IIIE LABOR ORGANIZATION INVOLVEI)
International Brotherhood of Electrical Workers,
Local Union 1159, AFL CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. HE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
iOWe find no merit to Respondent's contention that the secrecy of the
ballot was destroyed herein. As fully set forth in the underlying representa-
tion case reported at 236 NLRB 874 (1978)., the opening and counting of the
ballots herein comported with the Board's standard and accepted proce-
dures. In fact, the Board majority, Member Murphy dissenting, modified the
Regional Director's recommendation to open a challenged voter's ballot
prior to the determination of that voter eligibility in order to protect the
secrecy of the ballot. We also find no merit to Respondent's contention that
the Union's presumption of majority status has been rebutted by the turn-
over in personnel and the passage of time since the certification. It is well
settled that in the absence of unusual circumstances, a union's majority sta-
tus is presumed for I year from the issuance of a certification. Ray Brooks v.
N l..R., 348 U.S. 96 (1954). It is well settled that employee turnover does
not constitute "unusual circumstances." Ajax Magnethermic Corporation, 229
NLRB 317, 318 (1977).
894
MONARCH FEDERAL SAVINGS & LOAN ASSN.
All full-time and regular part-time office and
clerical employees including tellers employed by
the Employer at its main office located at 249
Kearny Avenue, Kearny, New Jersey and at all
of its New Jersey branches located at 942 Fisher
Boulevard, Toms River, and 42 Park Place, Mor-
ristown, but excluding all confidential employ-
ees. managerial employees, professional employ-
ees, guards and supervisors as defined in the Act.
2. The certification
On June 22, 1977, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 22 designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on June 29, 1978, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about July 13, 1978, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
July 17, 1978, and continuing at all times thereafter to
date, Respondent has refused, and continues to re-
fuse, to recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that Respondent has, since
July 17, 1978, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged 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 Respondent 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 com-
merce 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 mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement."
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company dib/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (lOth Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
I. Monarch Federal Savings & Loan Association is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Work-
ers, Local Union 1159, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time office and
clerical employees including tellers employed by the
Employer at its main office located at 249 Kearny
Avenue, Kearny, New Jersey and at all of its New
Jersey branches located at 942 Fisher Boulevard,
Toms River, and 42 Park Place, Morristown, but ex-
cluding all confidential employees, managerial em-
ployees, professional employees, guards, and supervi-
sors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since June 29, 1978, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
1 The General Counsel's request that Respondent be directed to reim-
burse the Board and the Union for their expenses incurred in the investiga-
tion, preparation, and conduct of this case, and other related expenses in-
curred as a result of Respondent's failure and refusal to bargain in good
faith, is denied as we do not find Respondent's defenses herein to be frivo-
lous. Hecki Inc., 215 NLRB 765 (1974); Rabco Meral Products, Inc. 225
NLRB 236, 237 (1976).
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about July 17, 1978, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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 mean-
ing 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 Rela-
tions Board hereby orders that the Respondent, Mon-
arch Federal Savings & Loan Association, Kearny,
Toms River, and Morristown, New Jersey, its officers,
agents, successors, and assigns, shall:
I. 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 Electrical Workers, Local Union 1159, AFL-
CIO, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All full-time and regular part-time office and
clerical employees including tellers employed by
the Employer at its main office located at 249
Kearny Avenue, Kearny, New Jersey and at all
of its New Jersey branches located at 942 Fisher
Boulevard, Toms River, and 42 Park Place, Mor-
ristown, but excluding all confidential employ-
ees, managerial employees, professional employ-
ees, guards and supervisors as defined in 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:
(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 Kearny, Toms River, and Morris-
town, New Jersey, places of business copies of the
attached noticed marked "Appendix."' 2 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 22 after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
12 In the event that this Order is enforced by ajudgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall 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 Inter-
national Brotherhood of Electrical Workers, Lo-
cal Union 1159, AFL-CIO, as the exclusive rep-
resentative of the employees in the bargaining
unit described below.
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 representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time and regular part-time office and
clerical employees including tellers employed
by the Employer at its main office located at
896
MONARCH FEDERAL SAVINGS & LOAN ASSN.
249 Kearny Avenue, Kearny, New Jersey and
at all of its New Jersey branches located at 942
Fisher Boulevard, Toms River, and 42 Park
Place, Morristown, but excluding all confiden-
tial employees, managerial employees, profes-
sional employees, guards and supervisors as
defined in the Act.
MONARCH FEDERAL SAVINGS & LOAN Asso-
CIATION
897