Union Savings & Trust Co.

National Labor Relations Board - Board Decisions

May 14, 1979

242 N.L.R.B. 176 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union Savings & Trust Company and Office and
Professional Employees International Union, Local
17. Case 8-CA- 11871
May 14, 1979
DECISION AND ORDER
BY MIlMEI:RS PNIlI 1O, MURPIIY, AND TRUITSI)ALI:
Upon a charge filed on April 24. 1978, and an
amended charge filed on June 8. 1978, by Office and
Professional Employees International Union, Local
17, herein called the Union, and duly served on The
Union Savings & Trust Company, herein called Re-
spondent. the General Counsel of the National Labor
Relations Board, by the Acting Regional Director for
Region 8, issued an amended complaint' on Novem-
ber 24, 1978, as further amended on December 4,
1978, alleging, inter alia, that Respondent had en-
gaged 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 Na-
tional Labor Relations Act, as amended. Copies of
the complaint and notice of hearing were duly served
on the parties.
With respect to the unfair labor practices, the com-
plaint, as amended, alleges in substance that on
March 29, 1978, following a Board-conducted elec-
tion won by the Union on March 22, 1978, in Case 8-
RC- 11200, the Union was duly certified as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;2 and
that, (1) commencing on or about March 23, 1978,
and at all times thereafter, Respondent has refused,
IThe Regional Director issued the original complaint in this proceeding
on June 16. 1978, a copy of which, along with the notice of hearing and the
amended charge, was duly served on the parties, That complaint alleged.
inter alta that Respondent interfered with, restrained. and coerced its em-
ployees in that it unlawfully prohibited employees from engaging in solicita-
tion on behalf ofa labor organization on Respondent's premises during their
nonworking time: restricted employee access to the premises during their
nonscheduled hours of work: and harassed employees and engaged in sur-
veillance, or conveyed the impression of engaging in surveillance. in viola-
tion of Sec. 8(a)(1) of the Act. he complaint also alleged that Respondent
terminated employee Timothy Downs on April 18. 1978. and laid off em-
ployee Larry Ayers on April 19. 1978, in violation Sec. 8(a)3) of the Act. On
November 16. 1978, the Regional Director for Region 8 approved a bilateral
partial settlement agreement remedying the ahove-mentioned alleged viola-
tions of Sec. 8(a)( I) and (3) of the Act. Respondent was required to post a
notice informing its employees that it would not interfere with, restrain, or
coerce them in the exercise of their rights under the Act and that it would
make whole the above-named employees for any loss of earnings they had
suffered as a result of their termination and layoff.
2 Official notice is taken of the record in the representation proceeding,
Case 8-RC- 11200. 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 Electrosysiemrs, 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): Inter.ype Co, v. Penello, 269 F.Supp. 573 (D.C.Va. 1967):
Follett Crp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 19681: Sec.
9(d) of the NLRA. as amended.
and continues to date to refuse, to meet and to bar-
gain collectively with the Union as the exclusive bar-
gaining representative. although the Union has re-
quested and is requesting it to do so; (2) on March 23,
1978, Respondent changed, unilaterally without noti-
fication to or consultation with the Union, the daily
starting and quitting worktimes of its three computer
programers and changed the time and duration of the
lunchbreak of one computer programer: (3) on April
14, 1978, Respondent ceased, unilaterally without no-
tification to or consultation with the Union, soliciting
or accepting new customer service accounts, resulting
in the elimination of two computer programer jobs;
and that by the acts described in (2) and (3) above,
Respondent altered the existing wages. hours, and
terms and conditions of employment of employees in
the appropriate unit. On June 23, 1978, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
Thereafter, on December 4 and 15. 1978, and Janu-
ar I 1. 1979, Respondent filed further answers to the
amendments to the complaint, admitting in part and
denying in part the allegations in the complaint and
its amendments.'
On January 22. 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 6.
1979, the Board issued an Order transferring proceed-
ing to the Board and Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondent did not file a re-
sponse to the Notice To Show Cause, and, therefore,
the allegations in the Motion for Summary Judgment
stand uncontroverted.
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 admitted, inter alia, that a majority of
Respondent's employees designated and selected the
Union as their representative for the purposes of coi-
lective bargaining and that the Union was certified as
the exclusive collective-bargaining representative of
employees in the unit: that the Union requested it to
bargain with respect to rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment: that it refused to recognize, meet with, and
3 On January 11. 1979. Respondent filed an amended answer to the
amended complaint admitting that the Union was a labor organization.
242 NLRB No. 27
176
THE NION SAVIN(GS & IRUST COMPANY
to bargain with the Union:4 that without notification
to or consultation with the Union it unilaterallk
changed the daily starting and quitting worktinme oft
three computer programers. and the lunchtime of one
of said computer programers: and that it unilaterally
ceased soliciting or accepting new customer service
accounts resulting in the elimination of two computer
programer jobs.5 Respondent denied the appropriate-
ness of the unit and also denied that the Union was
the exclusive bargaining representative: that it altered
the existing wages. hours, and terms and conditions of
employment of unit employees: that it interfered
with, restrained, or coerced its employees in the exer-
cise of their Section 7 rights: and that it engaged in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
Respondent contends, inter alia, that the Regional
Director erred in certifying the Union because the
unit found appropriate for bargaining is. in fiact. inap-
propriate. The General Counsel contends that. in
view of Respondent's admissions, there are no issues
of fact which require a hearing or which were not
previously presented to and decided bh the Board in
the underlying representation proceeding. and Re-
spondent is foreclosed from raising the issue of the
appropriateness of the unit in this proceeding. The
General Counsel also contends that. although Re-
spondent denied the allegation of paragraph 7 of the
amended complaint that the Union was the exclusive
representative of the employees. in its December 4
answer to the amended complaint it admitted para-
graph 6 of that complaint that the Union was dul
designated and certified as the exclusive representa-
tive of the employees, and that this establishes all
facts necessary to support the allegation that the
Union was the properly designated majority repre-
sentative. Respondent, as noted supra, did not file a
response to the Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted.
Review of the record herein, including the record in
Case 8-RC- 11200. reveals that on February 24, 1978.
following a hearing, the Regional Director for Region
8 issued his Decision and Direction of Election.
wherein he found appropriate a unit of all employees
at Respondent's operation center in Warren. Ohio,
excluding professional employees. guards and super-
visors as defined in the Act, and all other employees.
On March 17. 1978, the Board denied Respondent's
4 In its answer to the original complaint Respondent denied the allegation
that it refused to recognize, meet with, or bargain ith the l:nion hut in its
answer to the amended complaint it admilled the allegation
In its answelis to the original complaint and to the amended complaint
Respondent denied the allegallons that it unilaterallk I) changed existing
hours of employment of unit employees, and 121 ceased to accept new cu-
tomer service accounts. but in its December 15 answer to he .Imendmenl uII
the amended complaint it admitted these allegations.
request for review as raising no substantial issues war-
ranting review. Subsequently. on March 22. 1978. a
majority of Respondent's emplovees in the appropri-
ate unit designated the Union as their representative
for the purposes of collective bargaining with Re-
spondent. On March 29. 1978. the Regional Director
ft)r Region 8 certified the Union as the exclusive col-
lective-hargaining representative of the employees in
the unit. It thus appears that Respondent is attempt-
ing in this proceeding to relitigate issues relating to
the appropriateness of the unit and the exclusive rep-
resentative status of the Union which were fully liti-
gated and finally determined in the underlying repre-
sentation proceeding.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstIances a respondent in a proceeding alleging a
volation of Section 8(a)(5) is not entitled to relitigate
issues ,which were or could have been litigated in a
prior representation proceeding.'
The issues raised by Respondent in this proceeding
as to the appropriateness of the unit and the exclusive
representative status of the Union were or could have
been litigated in the prior representation proceeding.
and Respondent does not offer to adduce at a hearing
an\ newly discovered or previousi\ unavailable evi-
dence. nor does it allege that an\ special circum-
stances exist herein which would require the Board to
reexamine the decision made in the representation
proceeding. We therefore find that these issues are
not properly litigable in this unfair labor practice pro-
ceeding. Accordinl., we grant the Motion for Sum-
marN Judgment in this respect.
As noted. lq)ra, Respondent. in its December 15
answer to the complaint. as amended. admitted that it
unilaterall chainged the dail starting and quitting
worktime of its three computer programers and the
time and the duration of the lunchbreak of one com-
puter programier and that it ceased to solicit or to
accept new customer service accounts resulting in the
loss of two computer programer jobs, all without no-
tification to or consultation with the Union: but it
denied that by this conduct it altered the existing
wages. hours, and terms and conditions of employ-
ment of unit employees. Thus, the factual allegations
that Respondent unilaterally altered the terms and
conditions of employment without notification to or
consultation with the Union stand admitted. This
conduct constitutes a breach of the duty to bargain
with respect to a mandatory subject of bargaining;
i.e.. terms and conditions of employment. N. L. R. B. v.
Betnne Katz, etc., d/b/a Williamsburg Steel Products
Co., 369 U.S. 736 (1962). Thus, we agree with the
General Counsel's contention that Respondent's uni-
ISee Pirurgh Plae Gla.csi (,o. v. .L. R.. 313 U.S. 146. 162 11941):
Rules and Regultions of the Board. Secs 102.67(I and 102.691c).
177
DIE (ISI()NS OF N IONAI ILABOR RELATIONS BOARD
lateral change in the hours of work and of' the lunch-
break of its computer programers without notifying
or consulting with the Union violated Section 8(a)(5)
of the Act.7 We also agree with the General C('ounsel's
contention that Respondent's unilateral action, with-
out prior notice to or consultation with the Union, in
discontinuing its practice of soliciting or accepting
outside customer accounts resulting in the elimination
of two computer programer jobs also violated Section
8(a)(5) of' the Act. Accordingly. we also grant the
General Counsel's Motion for Summary Judgment on
these allegations.
On the basis of the entire record, the Board makes
the fillowing:
FINI)IN(;S OF FA('I
I. III BSINFISS ()1 RISP()NI)IN I
Respondent is engaged in the provision of commer-
cial trust and general banking services. Respondent's
answer to the complaint in this proceeding admitted
that in the course and conduct of its business opera-
tions it received gross revenues in excess of $500,000
and annually transferred funds and checks fior pur-
poses of collection, valued in excess of $50,000, di-
rectly out of State, and that it was, and has been at all
times material herein, an employer engaged in com-
merce within the meaning of' Section 2(6) and (7) of
the Act.
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.
1. f1111 IAB()R ()OR(ANIZATIO()N INVO()I.VI)
Office and Professional Employees International
Union, Local 17, is a labor organization within the
meaning of Section 2(5) of the Act.
III. TIlF UNFAIR LABOR RA('I'I('IS
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining within the
meaning of Section 9(b) of the Act:
'This conduct occurred on March 23, I das after the election was held.
and 6 days prior to he certification of the Union on March 29. It is well
established that an employer violates Sec. 8(aX5) and ( I ) when, without first
consulting with the union, it makes changes in terms and conditions (of em-
ployment during the period fillowing an election. prior to the eventual certi-
ficalion of the union. Mike O'Connor (hevrolet-BuickG(M( (o., In., et a,I
209 NLRB 701 (1974).
All employees at Respondent's operation center
located at 2650 Weir Road, Warren, Ohio, ex-
cluding all professional employees, guards and
supervisors as defined in the Act, and all other
employees.
2. The certification
On March 22, 1978. 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 8. designated the Union as their
representative for the purpose of collective bargaining
with Respondent.
The Union was certified as the collective-bargain-
ing representative of the employees in said unit on
March 29, 1978, and the Union continues to be such
exclusive representative within the meaning of' Sec-
tion 9(a) of' the Act.
B. The Rcq'ues To Bargain and Re.spondent's Re/i.sal
('ommencing on or about April 24, 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
April 27. 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.
Further, commencing on or about March 23, 1978,
Respondent, without notification to or consultation
with the Union, unilaterally changed the daily start-
ing and quitting worktimes of three computer pro-
gramers and changed the time and duration of the
lunchbreak of one of said computer programers. In
addition, on or about April 14, 1978, Respondent,
without notification to or consultation with the
Union, unilaterally ceased soliciting or accepting new
customer service accounts, resulting in the elimina-
tion of two computer programer jobs.
Accordingly, we find that Respondent has, since
March 23, 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. 1tF EFFEiCT OF IHE UNFAIR L.ABOR PRAC(II(TS
UPON (COMMER(CE
The activities of Respondent set forth in section
III, above. occurring in connection with the opera-
178
IHE. NION SAVINGS & RI S COMPANY
tions described in section I, above. have a close, inti-
mate, 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. ri] It RiMI: )Y
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.
Further, since we have found that Respondent vio-
lated Section 8(a)(5) and (I) by unilaterally changing
the daily hours for starting and quitting work and the
lunch period and eliminating jobs by ceasing to solicit
or accept new customer service accounts, without
bargaining with the Union, we shall order that Re-
spondent cease and desist from such activity. and re-
store the status quo ante by reinstating the hours of'
work as they existed on or about March 23. 1978. and
restore its practice of soliciting or accepting new cus-
tomer service accounts as it existed on or about April
14, 1978, and fulfill its statutory obligation to bargain.
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 Pouhltr Company, Inc., 136 NLRB
785 (1962); Commerce Compan dl/h/a Lamar Ilot'l.
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964). cert. denied 379 U.S. 817: Burnett Con-
struction 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.tSI(NS OF LA";
1. The Union Savings & Trust Compan) is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Office and Professional Employees International
Union, Local 17. is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees employed at Respondent's opera-
tion center located at 2650 Weir Road, Warren, Ohio.
excluding all professional employees, guards and su-
pervisors as defined in the Act, and all other cmplo\-
ees. constitute a unit appropriate for the purposes of'
collective bargaining within the meaning of Section
9(b) of' the Act.
4. Since March 29. 1978, the above-named labor
organization has been and now: is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of' collective
bargaining within the meaning of Section 9(a) of the
Act.
5. B refusing on or about April 27. 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. B unilaterally changing, without notification to
or consultation with the Union, the daily starting and
quitting worktimes of computer programers. and the
time and duration of' the lunchbreak of' one of said
colmputer programers: by unilaterallx, without notifi-
cation to or consultation with the Union, ceasing to
solicit or to accept new customer service accounts re-
sulting in the elimination of computer programer
jobs: and thus bh altering the existing wages, hours,
terms. and conditions of employment of unit employ-
ees. Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of' the Act.
7. B the aforesaid refusal to bargain, Respondent
has interfered Awith. restrained, and coerced. and is
interfering with. restraining, and coercing. employees
in the exercise of' the rights guaranteed them in Sec-
tion 7 of the Act. and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)( I ) of the Act.
8. The afiOresaid 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. The
Union Savings & Trust Company. Warren, Ohio. its
officers. agents. successors. and assigns. shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pa>. wages. hours, and other terms and con-
ditions of emploxment with Office and Professional
E:mplosees International Uinion. Local 17, as the ex-
clusive representative of' its employees in the lfollow-
ing appropriate unit:
179
I)t('EISIONS Of NAII()NAL l.ABOR RELATIONS BOARD
All employees at Respondent's operation center
located at 2650 Weir Road. Warren. Ohio, ex-
cluding all professional employees, guards and
supervisors as defined in the Act, and all other
employees.
(b) Unilaterally changing, without notification to
or consultation with the Union, the daily starting and
quitting worktimes of employees. and the time and
duration of their lunchbreaks.
(c) Unilaterally. without notification to or consul-
tation with the Union, ceasing to solicit or accept new
customer service accounts.
(d) Altering the existing wages. hours, and terms
and conditions of employment of' employees in the
appropriate unit, without notification to or consulta-
tion with the Union.
(e) 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) Reinstate the hours of work for unit employees
as they were on or about March 23. 1978, and restore
its practice of soliciting or accepting new customer
service accounts as it existed on or about April 14.
1978.
(b) 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.
(c) Post at its operation center, 2650 Weir Road,
Warren, Ohio, copies of the attached notice marked
"Appendix."8 Copies of said notice, on forms pro-
vided by the Regional Director for Region 8, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
I In the event that this Order is enforced by a judgment 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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notit the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPEN )IX
Noll 11( To EI.'YI:iiS
PoSI EI) BY ORDER OF I[IE
NA I I()NAI. LABOR RFIL.AI(NS BOARD
An Agency of the United States Government
Wl. WIL. NoI refuse to bargain collectively
concerning rates of pay. wages, hours, and other
terms and conditions of employment with Office
and Professional Employees International
Union. Local 17, as the exclusive representative
of the employees in the bargaining unit described
below.
Wi \WIlL.. NOI unilaterally change the terms
and conditions of employment of our employees.
WI Wi.l. NOT unilaterally., without notification
to or consultation with the Union, cease solicit-
ing or accepting new customer service accounts.
Wi: Wl.l. NOI 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.
WLE WIi.i reinstate the hours of work for unit
employees as they were on or about March 23,
1978, and wil wii.[. restore our practice of solicit-
ing or accepting new customer service accounts
as that practice existed on or about April 14,
1978.
WVi wlI.l., 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 employees at Respondent's operation cen-
ter located at 2650 Weir Road, Warren, Ohio,
excluding all professional employees, guards
and supervisors as defined in the Act, and all
other employees.
Tii: UNION SAVINGS & TRUST COMPANY
180