Fall River Savings BankDownload PDFNational Labor Relations Board - Board DecisionsJul 24, 1980250 N.L.R.B. 935 (N.L.R.B. 1980) Copy Citation FALL RIVER SAVINGS BANK Fall River Savings Bank and United Food & Com- mercial Workers International Union Local 1325, AFL-CIO. Case I -CA-17011 July 24, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDAI E Upon a charge filed on January 4, 1980, by United Food & Commercial Workers International Union, Local 1325, herein called the Union, and duly served on Fall River Savings Bank, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 1, issued a complaint and notice of hearing on January 29, 1980, against Respond- ent, alleging that Respondent had engaged in and was engaging 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 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 December 20, 1979, following a Board election in Case l-RC- 15618 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 10, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On February 13, 1980, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint, and asserting affirmative defenses. On March 17, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 25, 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 on April 14, 1980, filed an amended Official notice is taken of the record in she represenlatilin proceed- Ing. Case I-RC 15,18. as the term "record" is defined in Sees 102 68 and 10)2 .69(g) of the Board's Rules and Regulaliins, Series 8. as amended See L7I' Eleciroiysiemi, Inc.. 166 NL RB 938 (1907). enfd 388 F1 2d 6t8 (4th Cir 1968): Golden ige Beo'rage Co.. 167 NLRB 151 (1967). enfd 415 F2d 26 (5th Cir. 19691) Inicrtype Co. v` Penel//l. 269 F Supp 573 (DC Va. 1967): sbl/,s C(orp. It4 NIRB 378 (19%7). enfd 397 F 2 d 41 (7th Cir 19h 8i) Sec 91d) lf the NI.RA, . i amiended answer, 2 a motion to complete record and for pro- duction of documents,3 and a memorandum in op- position to the Motion for Summary Judgment. Thereafter, on April 22, 1980, the General Counsel filed his response to the motion to complete record and for production of documents and on May 8, 1980, Respondent filed its reply thereto. 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's response to the Notice To Show Cause asserts that the General Counsel's Motion for Summary Judgment should not be granted be- cause the pleadings and record are incomplete and reveal evidentiary issues to be litigated,4 the Board has never ruled on four of Respondent's objections to the election,5 the Board's certification is invalid 2The amended answer was filed without Board permission as colnlem- plated in Hoard Rule 102.23 We note in addition that it alleges no facts that were unavailable at the time Respotidcni filed its original answer ' Concerning the motion to complete record and fior produclion of documents. Board Rules 102.67 and 102 6 9 (g) iupra. fn 1. pros ide that transcripts and exhibits are considered part of the record in a representa- tion proceeding, of which the Board automnlatically takes official notice In addition, all missing pages have suhsequenlly been pro .ided by either the General Counsel or by Respondent With respect to the affidavit of Debra Paulhus, given to the Regional Director during his investigation of objections, we note that Respondent urges the necessity of this document on the ground that the Board has not ruled on paragraph C(I) of the report As also discussed in fn. 4. Mnrau the Board has passed upon that issue by dechlinilg to send it to hearing and. ultimately. in its Supplemen- tal Decision and Direction. 246 NLRB No 12g, adopting the Hearing Officer's "recommendation that the F mployer's objections be overruled" 4 Respondent contends that the General Counsel's response to its hill of particulars reflects esidentiary matters that he is unwilling to disclose in advance, thus making summary judgment unsuitable. In the first and second paragraphs of his response the General Counsel specifically gave dates and names with respect to the requests for bargaining made by the Union and the refusals made on behalf of Resptondent Further elabora- lion would have been inappropriate in this case where no bargailing oc- curred in view of his reliance solely on Respondent's refusal, on January II. 198)0, to bargain with the Union. Member Fruesdale finds it unnecessary ito pass on Respondent's contentions with regard to the General Counsel's response to a bill of particulars As noted in fn 131 infru, Respondent's January 10. 1980. letter establishes a ,iolation of Sec 8{a)(5) of the Act without regard to whether alleged later oral refusals to bargain would also constilute violations of the Act Accordingly. Member Truesdale would find it unnecessary to determine whether, if any evidenliary matl- lers were raised by the allegations addressed by Respondent's bill of par- licular,, such evidentiary matters might make summars Judgment inp- propriale herein. · Conltrary 1t1 Respondent, there are no "open" issues In the repreell- talioin case that require litigation nor has the Board failed to rule on those parts of Objections 2. 3, 4. and 6 that s.re 1rnot sent ito hearing (See fit 1 supra ) Among those were the allegeid threat by Assistantl I rTasurer Janimes lin'enhal tlo Debra l'aulhus' husband .nd the questilon hb Branchil Manager Mello tol l'aulhu, herself as Io how she ',aould s:ote BH) not sending ths e incldents to hearing the Board agreed with the reclommenl dllaion of the Acting Regiounal Dlrectlir Ih.lt they did not affect the re- uillt, tif Ihe cltclisll Ulilm latel'. as illdiclltcd ill fil 3, ipra t[lie Btl alrd effectiuel ,l osrrtrild the said Oblcltion, ii rm i 250 NLRB No. 123 935 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because there is no evidence that the United Food & Commercial Workers International Union, Local 1325, has any relation to Respondent's employees, 6 and that it is entitled to a hearing to produce evi- dence of special circumstances justifying its refusal to bargain with the Union. 7 Counsel for General Counsel argues that Respondent's answer does not deny the pertinent factual allegations of the com- plaint, and that it is merely seeking to relitigate issues which were or could have been raised in the prior representation proceeding. We agree with the General Counsel. A review of the entire record, including that in Case 1-RC-15618 reveals that pursuant to a Stipu- lation for Certification Upon Consent Election ap- proved by the Regional Director on March 29, 1978, a secret-ballot election was conducted on April 28, 1978, among the employees at Respond- ent's main office and branch offices. The Union won the election 23 to 21, with 7 challenged bal- lots. Respondent filed eight objections which, in substance, allege that union agents misstated bene- fits and engaged in other material misrepresenta- tions of fact; union agents, including supervisory employees, threatened unit employees; union agents, including supervisory employees, harassed and intimidated management representatives and unit employees; union agents offered to waive initi- ation fees; supervisors coerced unit employees with respect to voting for the Union; and that unauthor- ized personnel were permitted to remain in the election area while unit employees were voting. The Acting Regional Director conducted an inves- tigation, and on June 21, 1978, issued his report recommending that all of Respondent's objections be overruled, that the challenges be overruled, opened, and counted, and that a revised tally of ballots and the appropriate certification be issued. Respondent filed exceptions to the Acting Re- gional Director's report, for the most part reiterat- ing its earlier contentions about supervisory in- volvement in the election, the supervisory status of the assistant branch managers, and contentions re- garding another challenged ballot that the Acting Regional Director had overruled. On September 29, 1978, the Board issued a Decision and Direc- tion8 adopting the Acting Regional Director's rec- ommendation that Respondent's Objections 1, 5, 7, and 8 be overruled and that the challenges to the 6 See fn 12. infra, for our discussion of this issue I Respondent here reiterates much of its preceding contention It also urges that a majority of its employees seek a new election, that they were never notified of the merger between the Retail Clerks International As- sociation and the Amalgamated Meatcutters and Butcher Workmen of North America. and that the Board's requirements concerning union mergers 'were not satisfied in regard to its employees See fn 12, infra. for our ruling on the contention regarding the merger s 238 NLRB 1371 ballots of two employees be overruled. However, the Board ordered a hearing on parts of Objections 2, 3, 4, and 6 designated by the Acting Regional Director as paragraphs B(l), B(5), and D(2), and on the challenged ballots of the five assistant branch managers. Pursuant to the Board's Decision and Direction, a hearing was held on October 23-26 and on No- vember 15, 16, 17, 20, and 21, 1978. The Hearing Officer issued his report and recommendations on objections and challenges on March 19, 1979, rec- ommending that the objections and challenged bal- lots be overruled. Respondent filed lengthy excep- tions to the Hearing Officer's report on April 20, 1979, contending that the Hearing Officer made er- roneous factual, legal, and credibility findings and that it did not receive a fair hearing because of his erroneous procedural rulings. On December 6, 1979, the Board issued a Supplemental Decision and Direction9 adopting the Hearing Officer's rec- ommendations that Respondent's objections be overruled, the challenged ballots opened and counted, and a revised tally of ballots issued, and directing the Regional Director to issue the appro- priate certification.' ° The Regional Director, after counting the challenged ballots and issuing a re- vised tally, on December 20, 1979, issued a Certifi- cation of Representative certifying the Union as the collective-bargaining representative of Re- spondent's employees. The revised tally was 28 for and 23 against. 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. I 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 newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding.' 2 ' 246 NLRB No. 128 :0 The Board, in its December 6, 1979, Supplemental Decision and Di- rection, amended the name of the Petitioner. formerly Retail Clerks In- ternational Association, Local 1325, to reflect the change resulting from the merging of the Retail Clerks International Association and the Amal- gamated Mealcutters and Butcher Workmen of North America on June 7. 1979 A See Pittsburgh Plate Glui, Co. v. XN. R.B. 313 U S. 146, 162 (1941); Rules and Regulations or the Board. Sees 102 67(f) and 102 h 9 (c). 1 Ini its opposition to the Notice To Shoar Cause. Respondent alleges, for the first time. that there is no esidence that the United Food & Cm- mercial Workers Inlern ational Ulnion I ,Lcal 1325. ha, any relation to it, emiployees. It coitlends that the first lnorice ii had of the ahbos e Union was Conl lt uted 936 FALL RIVER SAVINGS BANK We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, 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, a Massachusetts corporation, with its principal place of business located in Fall River, Massachusetts, and with branch offices located in Somerset, Swansea, Westport, and Assonet, Massa- chusetts, is engaged in the operation of a savings bank at the above locations. In the course and con- duct of its business Respondent receives gross annual revenues in excess of $500,000 and pur- chases and receives supplies and materials valued in excess of $50,000 directly from points outside the Commonwealth of Massachusetts. 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 Interna- tional Union, Local 1325, AFL-CIO, is a labor or- from the Board's Supilemental Decision and Direction, 246 NLRB No 128, where the Board amended the Union's name pursuant to the merger between the Retail Clerks International Association and the Amalgamat- ed Meatcutters and Butcher Workmen of North America: that there is no record evidence to support the information about the merger in the above Decision, and that neither it nor its employees have been informed of such a merger It contends that if the Board's amendment is accurate. Local 1325, Retail Clerks International Association, no longer exists and that a new labor organization was created Respondent submits that it is entitled to a hearing on the merger issue because it has not had an oppor- tunity to litigate it. and that failure to grant the hearing will deprive if of due process We find Respondent's contention to be an afterthought and an attempt to relitigate an issue it could have raised in the prior representation pro- ceeding. In its January 10, 1980, refusal-to-bargain letter. Respondent in- formed the Union it was not conceding that the Union was the lawfully certified collective-bargaining representative of its employees because "the election .. was unlawful due to the Union's role of unlawfully using Supervisory Personnel to encourage and threaten employees into supporting the Union [and because) the Assistant Branch Managers are supervisors whose votes cannot be counted." Respondent did not indicate in this letter that the merger of the Unions at the International level was a reason it was refusing to bargain Moreover, after the Board issued its December 6, 1979. Supplemental Decision and Direction, or later, after the Regional Director issued his December 20, 1979, Certification of Representative. Respondent could have filed a motion for reconsideration of that decision pursuant to Sec 102 65(e) of the Board's Rules and Reg- ulatiors, Series 8. as amended, hut it did not do so See L. M Berry and Company, 248 NLRB 1218 (1980), where the Board denied a similar con- tention belatedly introduced in the complaint proceeding We note that in that case the election was 9 months before the Retail Clerks-Amalgamat- ed Meatcutters merger, here the election was more than 13 months before that same merger ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. 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 regular full-time and part-time employees employed by the Respondent in its offices at 141 Main St., Fall River, Mass., 397 Rhode Island Avenue, Fall River, Mass., 782 Main Road, Westport, Mass., 63 South Main Street, Assonet, Mass., County Street, Somerset, Mass., and K-Mart Plaza, Swansea, Mass., but excluding the president, vice-presidents, assist- ant vice-presidents, treasurer, assistant treasur- ers, branch managers, guards and supervisors as defined in the Act. 2. The certification On April 28, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 1, 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 December 20, 1979, 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 December 26, 1979, and at all times thereafter, the Union has requested 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 10, 1980,'3 and continuing at all times thereafter to date, Re- "a Respondent admits that it sent the Union a letter, dated January 10. 1980, "concerning a proposed meeting" However. that letter, which is in evidence, also contains a refusal to bargain in that it states Respondent considers the election unlawful and does not "concede that your Union is the lawfully certified collective bargaining representative of our employ- ees ," In light of the refusal contained in this letter, we find it unnec- essary to rely on an alleged subsequent, oral refusal to bargain made at a meeting on January 22. 198(), referred to by the General Counsel in its response to Respondent's motion for a hill of particulars For this added reason we reject Respondent's contention in its opposition to the Notice To Show Cause that the General Counsel's response to the bill of par- Continued 937 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclu- sive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 10, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent 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. Fall River Savings Bank is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. ticulars in regard to this meeting raises evidentiary issues warranting a denial of summary judgment. See also fn 4, supra 2. United Food and Commercial Workers Inter- national Union, Local 1325, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and part-time employees employed by the Respondent in its offices at 141 Main St., Fall River, Mass., 397 Rhode Island Avenue, Fall River, Mass., 782 Main Road, West- port, Mass., 63 South Main Street, Assonet, Mass., County Street, Somerset, Mass., and K-Mart Plaza, Swansea, Mass., but excluding the president, vice- presidents, assistant vice-presidents, treasurer, as- sistant treasurers, branch managers, guards and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 20, 1979, 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 10, 1980, 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 Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 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, Fall River Savings Bank, Fall River, Massachu- setts, 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 & Commercial Workers International Union, Local 1325, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appro- priate unit: 938 FAL L RIVER SAVINGS BANK All regular full-time and part-time employees employed by the Respondent in its offices at 141 Main St., Fall River, Mass., 397 Rhode Island Avenue, Fall River, Mass., 782 Main Road, Westport, Mass., 63 South Main Street, Assonet, Mass., County Street, Somerset, Mass., and K-Mart Plaza, Swansea, Mass., but excluding the president, vice-presidents, assist- ant vice-presidents, treasurer, assistant treasur- ers, branch managers, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- 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 two Fall River facilities, and its Westport, Assonet, Somerset, and Swansea facili- ties, copies of the attached notice marked "Appen- dix."' 3 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. l:1 In the event that this Order is enforced by a Judgment of a United Slates 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 .ahbor Relations Board" (c) Notify the Regional Director for Region i, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER 01 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 & Commercial Workers In- ternational Union, Local 1325, AFL-CIO, as the exclusive 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 regular full-time and part-time employ- ees employed by the Respondent in its of- fices at 141 Main St., Fall River, Mass., 397 Rhode Island Avenue, Fall River, Mass., 782 Main Road, Westport, Mass., 63 South Main Street, Assonet, Mass., County Street, Somerset, Mass., and K-Mart Plaza, Swan- sea, Mass., but excluding the president, vice- presidents, assistant vice-presidents, treasur- er, assistant treasurers, branch managers, guards and supervisors as defined in the Act. FALL RIVER SAVINGS BANK 939 Copy with citationCopy as parenthetical citation