The Credit Bureau, Inc.

National Labor Relations Board - Board Decisions

Jul 9, 1971

192 N.L.R.B. 44 (N.L.R.B. 1971)

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Credit Bureau, Inc. and Retail Clerks Internation-
al Association, Retail Store Employees Local No.
1407, AFL-CIO. Case 6-CA-5408
July 9, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND - JENKINS, -
Upon a charge , filed on March 5, 1971, by Retail
'Clerks , International Association , Retail Store Em-
ployees Local No. 1407; AFL-CIO, herein called the
Union; and duly served on The Credit Bureau, Inc.,
herein called the Respondent , the General Counsel of
the National.-Labor Relations Board ,_bythe Regional
Director for Region 6, issued a complaint and notice
of hearing on March 24, 1971, against Respondent,
alleging, that Respondent had engaged 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 National Labor Relations
Act, 'as amended . Copies of ,the charge, complaint,
and, notice of hearing before a Trial Examiner were
duly served on.the_parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in, substance that on January 27,
1971, following a Board election in Case 6-RC-5.140
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate ; 1 and that,
commencing on or about March 4 , 1971, and at all
times thereafter , Respondent has refused , and contin-
ues to date to refuse , to bargain collectively with the
Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so . On April 5, 1971, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint . The Respon-
dent admits the allegations contained in paragraphs 1
through 6 and 8 of the complaint and notice of
hearing, but denies all other allegations. As an
affirmative defense, the Respondent contends that it
is under no legal obligation to recognize or bargain
with the Union because the Union's certification was
improperly issued ; that the Respondent's objections
to the conduct of the election were improperly
overruled by the Regional Director in his Supplemen-
tal Decision, Order, and Notice of Hearing ; and that
it was deprived of due process and denied a hearing
on substantial and material issues of fact raised by the
objections.
1 Official notice is taken of the record in the representation proceeding,
Case 6-RC-5140, as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4,
On April 15 , 1971 , counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment submitting, in effect, that the Respondent
has raised no issues in its answer , which were not
previously, ' considered and' 'decided ' . in _ Case
6-RC-5140, and that no special circumstances, exist
requiring the Board to reexamine the decision which
the Board and the , Regional Director made "therein,
Accordingly , the `General' Counsel moved that`" all
material allegations of the complaint be deemed'tombe
admitted true; and that the Respondent be found to
have violated Section 8(a)(5) and (1) of the Act.
Subsequently, on April 26, 1971, the Board issued an
order transferring the proceeding to the Boar'd'a{id`a
Notice To Show Cause why the General 'Counsel's
Motion for Summary Judgment . should not"'-be
granted . Respondent , thereafter filed a Motion To
Dismiss General Counsels Motion for Summary
Judgment and Brief in Support of Motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations ' Act, as amended, the
National Labor Relations Board has `delegated 'its
powers in connection with 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 Motion To Dismiss General Counsel 's Motion
for Summary Judgment and' Brief in Support of
Motion the Respondent raises substantially the same
matters that it raised in the underlying representation
case, and the affirmative defenses in its answer to the
complaint . The thrust of the Respondent's contention
is that the Union's certification was improperly issued
because it was denied due process and a fair hearing
on substantial and material issues of fact raised by its
objections to the election . Upon the entire record
before us , including the record in Case 6-RC-5140,
we find no merit in the Respondent 's contentions.
On December 3, 1969 , following a hearing held on
November 12, 1969, the Regional Director issued his
Decision and Direction of Election in which he found
that all full-time and regular part-time employees
employed at the Respondent's office at 415 Smithfield
Street, Pittsburgh, Pennsylvania, constituted a unit
appropriate for the purposes of collective bargaining.
In his decision, the Regional Director also found,
contrary to the Respondent , that all such employees
were not confidential employees . The Respondent did
not file a Request for Review of the Regional
Director's Decision and Direction of Election.
1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello,
269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397
F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
192 NLRB No. 11
THE CREDIT BUREAU, INC.
Thereafter, on January 28, 1970, an election was
conducted in which a majority of the employees
selected the Union as their exclusive collective-bar-
gaining agent. On February 4, 1970, the Respondent
filed with the Regional Director timely objections to
conduct affecting the results of the election. On July 6,
1970, the Regional, Director issued a Supplemental
Decision, Order, and Notice of Hearing in which he
found all but one of the-Respondent's objections had
not raised any substantial and-material factual issues
warranting a hearing and were without merit, and in
which he directed a hearing on the remaining
objection.' Thereafter, the Respondent filed a timely
Request for- Review. On August ' 10, 1970, the Board
denied the Respondent's Request for Review on the
ground that it raised no substantial issues warranting
review.
On October 27, 1970, after a hearing, the hearing
officer filed his Report on Objections in which he
recommended that the Respondent's remaining ob-
jection be overruled and that the Union be certified.
On November 6,,1970, the Respondent filed with the
Regional Director timely exceptions and a supporting
brief. Thereafter, on January 27; 1971,'the Regional
Director issued' a Second Supplemental Decision and
Certification of Representative in which he adopted
the findings , conclusions , and recommendations of
the Hearing Officer, and, 'since he had previously
overruled the Respondent's other objections and the
Board had denied review of this ruling, he certified the
Union. The Respondent did not file a Request for
Review.
In this Motion To Dismiss General Counsel's
Motion for Summary Judgment, the Respondent also
contends that there exists a new and 'special circum-
stance which requires the Board to dismiss the
General -Counsels Motion for, 'Summary Judgment
and that the appropriate bargaining unit be reconsid-
ered by the Board. In support of this contention, the
Respondent argues that the Regional Director's
December 3,1969, Decision and Direction of Election
(to which the Respondent did not file a Request for
Review), included in the bargaining-.unit employees
having -access to confidential information and, if a
collective-bargaining agreement is entered into be-
tween itself and the certified Union, the Respondent
would be placed in a wholly untenable and illegal
position because -if any such-employee is discharged
or institutes grievance proceedings, the Respondent
may be forced to disclose confidential information to
the ; Union investigating such discharge or grievance.
This disclosure, the Respondent argues, would violate
certain se%.Lions of, the Fair Credit Reporting Act and
subject the Employer, to liability under the act. We
45
find no merit to this defense of -Respondent. The
applicability of the Fair Credit Reporting Act -to
union requests for grievance-processing information
is a matter to be resolved if an when-the union should
ask for such information. Nothingyin our certification
of the Union as collective-bargaining agent purports
to deal with that matter, nor may Respondent's
refusal to bargain with the Union generally be
justified on the basis of speculation as to what data
might be requested in the future.
With respect to Respondent's other allegations, it is
well settled that in the absence of newly discovered or
previously unavailable evidence or special circum-
stances 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 -2
With the single exception noted above, all issues
raised by the Respondent in this proceeding were or
could have been litigated in the prior, representation
proceeding, and the Respondent- `does not offer to
adduce at a hearing any newly, - discovered- or
previously unavailable evidence, .nor does it allege
any such special circumstances herein which would
require the Board to reexamine the decision made in
the representation proceeding. We, -therefore,,.--find
that the Respondent has not raised any issue which is
properly litigable in this unfair labor practice pro-
ceeding. We shall, accordingly, grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation with one
of its offices located in Pittsburgh, Pennsylvania, is
engaged in the business of providing credit rating
services to retail establishments. During the 12-month
period immediately preceding the issuance of the
complaint and notice of hearing, the Respondent
performed services valued in excess of $50,000 for
other companies within the commonwealth of Penn-
sylvania which are directly : engaged in interstate
commerce. During the same period, the Respondent
performed services valued in excess of $50,000A for
companies located outside the commonwealth of
Pennsylvania.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it
2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will effectuate the policies of the Act to- assert
jurisdiction herein.
II. ;THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Retail
Store: ,Employees Local No. 1407, AFL-CIO, is a
labor' organization within the meaning of Section 2(5)
of tlie'Act.
III. THE UNFAIR ' LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the -meaning of Section 9(b) of the
Act:
All, full-time and, regular part-time employees
employed at the Employer's officer at 415 Smith-
field Street in Pittsburgh, Pennsylvania, excluding
casual, employees, confidential' employees, sales
representatives, purchasing agents, research assist-
ants and guards, professional employees and
supervisors-as-defined in the Act.
2. The certification
On January 28,1970, a majority of the employees of
Respondent-,m said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 6, designated the Union as their
representative for the purposes of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in'^said unit on January 27, 1971, 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 February 25, and at
all times thereafter, the -Union, has requested the
Respondent, , to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit Com-
mencing on or about March 4, 1971,'and continuing
at all times thereafter, to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with,the Union' as the exclusive representative
for collectivebargaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
March 4,-4971, 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
engaged in , and is engaging in unfair labor -practices
within the meaning of Section . 8(a)(5) and (1) o€-the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR ,
'PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, above,, occurring in connection with its operations
described in section I, above, have a close,.intimate,
and substantial relationship to trade, traffic,, and
commerce among the, several States and tend to lead
to labor disputes burdening and, obstructing _ com-
merce 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
meaning of Section 8(a)(5) and (1) of the Act, weshall
order `that it cease anddesist therefrom, arid, 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 agree`men't.
In - order to insure that 'the ' -employees in the
appropriate unit will be' accorded the services of their
selected bargaining agent.for` the period provided by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriatae "unit.
See_ Mar-Jac Poultry Company, Inc. 136-NLRB 5;
Commerce Company d/b/a;Lamar Hotel,, 140 NLRB
226, 229, enfd: 528 F.2d 600(C.A. 5), cert . denied 379
U.S. 817; Burnett' Construction Company, 149 NLRB
1419, 1421, enfd. 350 F.2d 57 (C.A.10).
The Board, upon the basis of the foregoing facts and
the, entire, record, makes the following:
CONCLUSIONS OF "LAW
1. The Credit Bureau, Inc., is an ' employer en-
gaged in-commerce within the meaning of Section 2(6)
and (7) of the Act.
2.- Retail Clerks International Association, Retail
Store, Employees- , Local No. 1407, AFL-CIO,, is 'a
labor' organization-within the meaning of Section 2(5)
of the Act. I I
3. -All l full-time and regular part-time employees
employed, at the Employer's office at 415 Smithfield
Street in Pittsburgh, Pennsylvania, excluding casual
employees, confidential employees, sales ' representa-
tives, purchasing agents, research- assistants and
guards, professional employees and supervisors as
defined in the Act, constitute a unit appropriate-for
THE CREDIT BUREAU, INC. 47
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since January 27, _1971, 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 purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about March 4, 1971, and at
all times thereafter, to bargain collectively 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 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
meaning 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.
and conditions of employment, and,,if an understand-
ing is reached, embody such, understanding in a
signed agreement.
(b) Post at its Pittsburgh, Pennsylvania, location
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the
Regional Director for Region 6, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
APPENDIX
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, The
Credit Bureau, Inc., 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 Retail Clerks International
Association, Retail Store Employees Local No. 1407,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All full-time and regular part-time employees
employed at the Employer's office at 415 Smith-
field Street in Pittsburgh, Pennsylvania, excluding
casual employees, confidential employees, sales
representatives, purchasing agents, research assist-
ants and guards, professional employees and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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
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 Retail
Clerks International Association, Retail Store
Employees Local No. 1407, 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 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 representative of all
employees in the bargaining unit described below,
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. The bargaining
unit is:
All full-time and regular part-time employees
employed at the Employer's office at 415
Smithfield Street in Pittsburgh, Pennsylvania,
excluding casual employees, confidential
employees, sales representatives, purchasing
agents, research assistants and guards, pro-
48 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
fessional employees and supervisors as de- This is an official notice and must not be defaced by
fined in the Act. anyone.
THE CREDIT BUREAU
This notice must remain posted for 60 consecutive
INC. days from the date of posting and must not be altered,
(Employer) defaced, or'covered by any other material.
Dated`, By
(Representative)-
Any questions concerning this notice or compliance
with its provisions may be directed to,the Board's
(Title) Office, 1536 Federal Building, 1000 Liberty,Avenue,
Pittsburgh, Pennsylvania 15222, Telephone 412-644-
2977.