Alaska State Bank

National Labor Relations Board - Board DecisionsAug 4, 1980

250 N.L.R.B. 1384 (N.L.R.B. 1980)

4I) CISIONS OF NATI()NAl. I.AIOR RELAFIONS BOARD Alaska State Bank and United Food and Commer- cial Workers Union Local 1496, AFL-CIO- CLC. Case 19-CA-12114 August 4, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on February 15, 1980, by United Food and Commercial Workers Union Local 1496, AFL-CIO-CLC, herein called the Union, and duly served on Alaska State Bank, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 19, issued a complaint and notice of hearing on March 12, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices af- fecting 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 charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 3, 1980, following a Board election in Case 19-RC- 9526, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about January 13 and 16, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On March 24, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On April 28, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 2, 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 Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Official notice is taken of the record in the representation proceed- ing. Case 19-RC-9526, 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); Inrertype Co. v. Penello, 269 F Supp. 573 (D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd 397 F2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 250 NLRB No. 179 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 In its answer to the complaint and in its opposi- tion to the General Counsel's motion, Respondent denied that the unit was appropriate and that the Union was the exclusive bargaining representative of the employees. Respondent admitted that the Union was certified as the collective bargaining agent, but it contends that the certification was in- valid and without legal effect. Respondent also ad- mitted that the Union, orally and in writing, re- quested Respondent to recognize and to bargain collectively with the Union on behalf of the em- ployees in the unit. Respondent further admitted that it failed to recognize and to bargain with the Union. However, Respondent denied that it violat- ed Section 8(a)(5) and (1) of the Act by this con- duct, and it maintains that since the representation hearing on November 1, 1979, it has further cen- tralized and consolidated several bank functions into its main office, rendering the single-bank unit herein even more inappropriate. Thus, it urges that it should be allowed to introduce evidence of this ongoing process. It also asserted that the Union's intention to organize all of its employees raises fac- tual issues concerning the appropriateness of the certified unit. Respondent further asserted that the Board should reconsider its presumption, and re- verse its policy that a single-branch unit in the banking business is appropriate.2 In his motion, the General Counsel contended that the pleadings herein raise no issue of fact which requires a hearing. He also contended that matters relating to consolidation and centralization of banking functions were raised and fully consid- ered in the representation proceeding. The General Counsel further contended that the Union's desire to engage in further organizing efforts and to rep- resent all of Respondent's employees has no bear- ing on the issues herein. We agree with the Gener- al Counsel. Review of the record herein, including the record in Case 19-RC-9526, reveals that on No- vember 15, 1979, following a hearing, the Regional Director for Region 19 issued his Decision and Di- rection of Election wherein, contrary to Respond- ent's contention that only a bankwide unit of all employees was appropriate, he found appropriate a I See Wyandotte Savings Bank, 245 NL RB No. 120 (1979). I1384 ALASKA STATE BANK single-bank unit of all employees at Respondent's Kenai, Alaska, branch, but excluding officers, guards, professional employees, and supervisors as defined in the Act. The Regional Director found no merit in Respondent's argument that only a bankwide bargaining unit was appropriate because of the alleged high degree of centralization of per- sonnel, operational, and administrative functions. On November 23, 1979, Respondent filed a request for review of the Regional Director's decision. Re- spondent argued that the facts showed that it was highly centralized in terms of its operational, ad- ministrative, and personnel functions, and truly op- erated as a single bank. Respondent requested the Board to reconsider its policies concerning appro- priate units in the banking industry, especially the presumption in Wyandotte Savings Bank, supra. On December 26, 1979, the Board denied review on the ground that the request raised no substantial issues warranting review. On January 3, 1980, the Union was certified as the exclusive collective-bar- gaining agent for the unit employees. Thus, it ap- pears that Respondent is attempting in this pro- ceeding to relitigate isues fully litigated and finally determined in the representation proceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any significant newly discovered or previously unavailable evi- dence, nor does it allege that any special circum- stances exist herein which would require the Board to reexamine the decision made in the representa- tion proceeding. We therefore find that Respond- ent has not raised any issue which is properly liti- gable in this unfair labor practice proceeding. Ac- cordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a banking corporation organized under the laws of the State of Alaska, with its main office in Anchorage, Alaska, and is engaged in the banking business throughout the State of Alaska. I See Pittrsburgh Plate Glas Co. v. N.L.R .B., 313 U S 146, 162 (1941); Rules and Regulations of the Board. Secs. 102.67(f) and 102.6 9(c). Respondent, during the past 12 months, which period is representative of all times material herein, in the course and conduct of its business oper- ations, had gross income in excess of $500,000, transferred funds in excess of $50,000 directly to banks outside the State of Alaska, and held United States securities valued in excess of $100,000. 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. II. THE LABOR ORGANIZATION INVOLVED United Food and Commercial Workers Union Local 1496, AFL-CIO-CLC, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees of the Kenai Branch of the Alaska State Bank, but excluding officers, guards, professional employees and supervisors within the meaning of the Act. 2. The certification On December 11, 1979, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 19, 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 said unit on January 3, 1980, and the Union continues 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 January 13 and 16, 1980, and at all times thereafter, the Union has re- quested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about January 13 and 16, 1980, and continuing at all times thereafter to date, Re- 1385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent has refused, and continues to refuse, to recognize and to bargain with the Union as the ex- clusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 13 and 16, 1980, 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, 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. 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. 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 unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company 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: CONCLUSIONS OF LAW 1. Alaska State Bank is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers Union Local 1496, AFL-CIO-CLC, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All employees of the Kenai Branch of Alaska State Bank, but excluding officers, guards, profes- sional employees, and supervisors within the mean- ing of the Act constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since January 3, 1980, 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 January 13 and 16, 1980, and at all times thereafter, to bargain collec- tively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) 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, 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, Alaska State Bank, Kenai, Alaska, its officers, agents, successors, 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 United Food and Commercial Workers Union Local 1496, AFL- CIO-CLC, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All employees of the Kenai Branch of the Alaska State Bank, but excluding officers, guards, professional employees and supervi- sors within the meaning of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- 1386 ALASKA STATE BANK 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 unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Kenai, Alaska, bank copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Di- rector for Region 19, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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. Rea- sonable 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 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National 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 United Food and Commercial Workers Union Local 1496, AFL-CIO-CLC, as the ex- clusive representative of the employees in the bargaining unit described below. WE WILL NOT 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. WE WILL, 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 an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees of the Kenai Branch of the Alaska State Bank, but excluding officers, guards, professional employees and supervi- sors within the meaning of the Act. ALASKA STATE BANK 1 387