The Credit Bureau, Inc.

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Credit Bureau, Inc. andRetail 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.