Dunn & Bradstreet, Inc.

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 162 (N.L.R.B. 1979)

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dun & Bradstreet, Inc. and Teamsters Local 676, affi-
liated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Petitioner. Case 4-RC-13159
January 24, 1979
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN FANNIN(; AND MEMBERS JENKINS
AND PENELLO
Upon a petition duly filed under Section 9 (c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officers William J.
Payne and David R. Keller. Subsequently, pursuant
to Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of Pro-
cedure, Series 8, as amended, the Regional Director
for Region 4 transferred this case to the Board for
decision. Thereafter, the Employer and the Petitioner
filed briefs in support of their respective positions.
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.
The Board has reviewed the Hearing Officers' rul-
ings made at the hearing and finds that they are free
from prejudicial error.' They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
I. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. The Employer, a Delaware corporation, is en-
gaged primarily in the business of collecting, compil-
ing, evaluating, and reporting financial information.
Through its credit reporters stationed across the
country, it obtains financial data on a voluntary ba-
sis from over 3 million businesses. The Employer's
reports are then made available to subscribers, prin-
cipally to assist them in making decisions regarding
extensions of credit.
Petitioner seeks to represent a unit of credit report-
ers. The Employer contends that it would not effec-
tuate the policies of the Act to extend representa-
tional rights to its credit reporters and, alternatively,
After the hearing was closed on June 2. 1978. the Employer filed an
appeal with the Board from certain rulings of the Regional Director and the
Hearing Officers excluding certain proffered evidence, revoking a suhpoena
duce. ecum served on the Petitioner, and closing the record. On Jul) 14.
1978, the Board granted the appeal and on August 16 and 17. 1978. the
hearing was reconvened and additional evidence was taken.
240 NLRB No. 16
that Petitioner, and any other labor organization
which represents employees other than credit report-
ers, should be disqualified from representing credit
reporters. The Employer claims that its ability to ob-
tain financial information from firms depends upon
its ability to assure each reporting firm that the infor-
mation will be disseminated only to subscribers who
have legitimate interest in the firm's financial status.
The subscriber's contract prohibits the dissemination
of information contained in credit reports to third
parties, and limits its use to "credit, insurance, mar-
ket, and other business decisions." Although it occa-
sionally compiles reports on labor organizations, the
Employer does not permit labor organizations to
subscribe to its service, inasmuch as it deems any use
by a labor organization not to be a legitimate busi-
ness use. Were its credit reporters accorded represen-
tational rights, the Employer argues, its ability to as-
sure the confidentiality of the information it collects
would he diminished severely, with a corresponding
increase in the number of firms declining to provide
su h information. This would occur because credit
reporters who were union members would "be faced
with an irreconcilable conflict of interest and divi-
sion of loyalties" regarding their access to confiden-
tial business information relating to numerous other
en' ployers which could be of use to their own union
as well as to other unions. Thus, firms would fear,
even more than they do now,2 that information re-
garding their financial status or labor relations poli-
cies could fall into the hands of a labor organization.
The Employer predicts that, if Petitioner were to win
an election and be certified, reporting firms would
cease to provide financial data.3 According to the
Employer, this would be detrimental to the Nation's
credit markets, not to mention its business. Further,
the Employer argues that, if its credit reporters are
organized and if this confounds its efforts to restrict
access to its reports, it may lose the qualified privi-
lege it currently enjoys regarding possible tort liabili-
ty for making false reports. Finally, the Employer
contends that, if Petitioner wins an election and is
certified, and if the fears that credit reporters will
readily disseminate confidential information to Peti-
tioner and other labor organizations are borne out,
"the delicate balance . . . between parties in collec-
tive bargaining," specifically the rules under which
labor organizations may obtain financial data from
employers.4 will be compromised.
T he Employer introduced eviderce of several cases where reporting
companies have refused to provide the Employer with any more financial
data after unions had obtained copies of their Dun & Bradstreet reports.
In support of this contention, Respondent introduced a stud) conducted
by he Roper Organization. Inc.. which it claims establishes that if reporters
opt for union representation most "of the current subjects of the Dun &
Bradstreet credit reporters would give lers financial information to the Com-
pany than the) presently provide.'
DUNN & BRADSTREET 163
In Dun & Bradstreet, Inc., 194 NLRB 9 (1971), the
Board rejected virtually all of the Employer's argu-
ments and directed an election in a unit of credit
reporters assigned to several of the Employer's of-
fices located in New York and New Jersey. In so
doing the Board reasoned: "The law has clearly re-
jected the notion that membership in a labor organi-
zation is in itself incompatible with the obligations of
fidelity owed to an employer by its employees." Id. at
9. In response to the Employer's contention that un-
ionized credit reporters would be more likely to di-
vulge confidential information to labor organizations
and therefore "some sources [would] withhold infor-
mation previously furnished," the Board stated that:
"Such conjecture, even if established as fact, does not
afford an adequate reason for depriving employees
of their fundamental rights guaranteed by the Act."
Id. at 10.5 Finally, the Board found no merit in the
Employer's contention that, because over 90 percent
of the other employers whose employees were repre-
sented by the petitioner therein were subjects of Dun
& Bradstreet reports, the petitioner should have been
disqualified from representing credit reporters.
The Employer now contends that the Board
should reconsider its earlier Dun & Bradstreet deci-
sions. It states that in the earlier case the Board did
not "give sufficient weight to the realities of the la-
bor-management relationship," and that unlike the
earlier cases there is evidence here (the Roper survey)
that reporting companies will decline to provide data
to the Employer if credit reporters are organized. Fi-
nally, the Employer maintains that, by virtue of their
access to confidential labor relations information of
reporting companies, credit reporters are like the em-
ployees in Pullman Standard Division of Pullman, In-
corporated, 214 NLRB 762 (1974) who, because of
their access to their employer's labor relations data.
were deemed to be confidentials and thus not enti-
tled to union representation.
We have carefully considered the Employer's con-
tentions and find them without merit. As we stated in
Dun & Bradstreet, Inc., supra, union membership is
not incompatible with an employee's duty of loyalty
to his or her employer, cven when that duty involves
a responsibility to maintain confidentiality.6 The Em-
ployer has offered no evidence regarding the sup-
posed pressures Petitioner would place on credit re-
porters to divulge confidential information. Thus, the
Employer's premise that unionized credit reporters
would be more disposed than unrepresented employ-
4See. e.g.. N. L.R.B v. Acme Indutrial ('o. 385 U S. 432 (1967) N. L.P B
v. Truitt Manufacturing Co., 351 S 149 (1956).
'See also Dun & Bradftreet. Inc. 80 NRB 56 (1948); (redit Bureau /
Greater Boston, Inc., 73 NLRB 41011947)
6 See also Folev. Haag Eliot, 229 NLRB 456, 457, fn 12 (1977).
ees to breach their obligation of confidentiality ap-
pears to be unwarranted.7 Further, the concerns of
the firms now supplying financial information to the
Employer regarding the possibility that the credit re-
porters will become unionized are irrelevant to the
question of whether the Employer's employees may
be deprived of their Section 7 rights.6 Finally, we re-
ject the Employer's contention that credit reporters
should be classified as confidential employees be-
cause they have access to labor relations data of
other employers. The Board has consistently defined
confidentials to be those persons who "assist and act
in a confidential relationship to persons who formu-
late, determine, and effectuate management policies
in the field of labor relations." The B. F. Goodrich
Company, 115 NLRB 722, 724 (1956). This category
is a narrow one. "The mere handling of or access to
confidential business or labor relations information
is insufficient [by itself] to render an employee 'confi-
dential.'" Ernst & Ernst National Warehouse, 228
NLRB 590, 591 (1977). Further, it is implicit in the
rationale for finding a confidential status that such
pe.sons work in a confidential capacity with some-
one who formulates, determines, and effectuates la-
bor relations policies for their own employer, not
some other employer.
Xccordingly, since the Employer has advanced no
reasons which would warrant depriving credit report-
ers, as a class, of their right to select a bargaining
representative if they wish, or which would require
that Petitioner be disqualified from acting as such a
representative, we find that a question affecting com-
merce exists concerning the representation of certain
employees of the Employer within the meaning of
Sections 9(cX)1) and 2(6) and (7) of the Act.
4. The Petitioner seeks a unit of 55 credit report-
ers, who are assigned to the Employer's Philadelphia
Although the Employer introduced evidence of several instances where
unions had improperly obtained Dun & Bradstreet reports, it did not assert
that in any of them one of its employees had been the source. In fact, most
breaches of confidentiality would appear to be attributable to subscribers.
See also Dun & Bradstreer, Inc.. 194 NLRB at 10. And such breaches of
confidentiality would seem to be an inevitable "hazard ansing from the
nature of the Emplover's operation." Ibid. Moreover. even assuming that
information in Dun & Bradstreet reports would he of interest to Petitioner
and other labor organizations an assumption which was disputed by Peti-
tioner, and that union members would be pressured to divulge such infor-
mation, there is no reason to suppose that the Employer would be any less
able to remed emploee breaches of confidentiality by disciplining offend-
ing employees merely because its employees were represented by a union
Similarly. the Employer's suggestion that the unionization of credit re-
porters would alter the rules regarding union access to employers' financial
records is unpersuasise. Presum:'bl. where such information is obtained
improperly. the parties may pursue such civil or other remedies as are a ail-
able
5
See Dun & Bradrree. Inc. slupra at 10 For that reason, e do not
consider the results of the Roper surey determinative of the questions pre-
sented herein. In this connection we note that Petitioner in its posthearing
brief has raised substantial questions concerning the methodology and fair-
ness of the sursey and the reliability of its result,
DUNN & BRADSTREET
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
district office.9 The Petioner relies on the well-estab-
lished presumptive appropriateness of single-location
units. See, e.g., Equitable Life Assurance Society of the
United States, 192 NLRB 544 (1971); Fireman's Fund
Insurance Company, 173 NLRB 982 (1968). The Em-
ployer seeks dismissal of the petition based on its
contention that the smallest appropriate unit would
encompass all credit reporters employed in its second
region which includes much of the Eastern United
States, or at the very smallest, its Philadelphia zone,
which is the northern half of the second region.' It
asserts that the record shows that district offices are
not autonomous entities and that employees assigned
to each district office do not share a separate com-
munity of interest apart from credit reporters as-
signed to other district offices.
In 1971, the Board directed an election in a unit of
the Employer's credit reporters employed at various
locations in New York and New Jersey. Dun & Brad-
street, Inc., supra. In doing so, it rejected the Employ-
er's claim that day-to-day control of each office was
centralized and found instead that each office was "a
distinct entity itself appropriate for the purposes of
collective bargaining." Id at 11. The Board acknowl-
edged that the Employer's regional management: (1)
set "the standards governing [and shared] responsi-
bility for, such matters as salaries, promotions, griev-
ances, workloads, vacations, employment standards,
and discharges"; (2) maintained daily telephone con-
tact with and paid frequent visits to subordinate of-
fices; (3) "closely follow[ed] the progress of credit
reporters and the content of their reports"; and (4)
"constantly monitorfed] activities at the subordinate
levels by reviewing standardized production, salary,
and workload reports which [were] filed by the dis-
trict offices on a regular and frequent basis." Never-
theless the Board concluded that "the district offices
[had] a meaningful identity as distinct economic
units" and thus constituted separate appropriate
units. In support of that conclusion, the Baord point-
ed out that district managers: (1) exercised "substan-
tial control over the wages and working conditions of
the credit reporters within their respective districts";
(2) were "responsible for hiring and training credit
reporters"; (3) had authority "to increase the salary
9 Approximately one-third of the credit reporters in this office are classi-
fied as "inside" reporters and are physically located at the district office.
The remaining two-thirds of the credit reporters are classified as "outside"
reporters and work away from the office, often in their own homes. The
parties stipulated that if the Philadelphia district office is found to e an
appropriate unit both inside and outside reporters would be included.
The second region is divided into two zones. In the Philadelphia zone.
offices are maintained in Harnsburg, Philadelphia. and Pittsburgh. Pennsyl-
vania; Cincinnati, Cleveland. and Columbus. Ohio; and Richmond. Vir-
ginia. In the Atlanta zone, offices are maintained in Atlanta. Georgia; Bir-
rmngham, Alabama; New Orleans, Louisiana: Nashville and Knoxville
Tennessee; Raleigh. Charlotte. and Greensboro. North Carolina: Columbia.
South Carolina; and Miami, Tampa. and Orlando. Florida.
of credit reporters up to $10,000 per annum and pro-
mote these employees through the beginning and in-
termediate credit reporter classifications"; (4) allo-
cated "work assignments among credit reporters";
(5) took "final action on all requests for vacations
not exceeding I week in duration"; (6) were "encour-
aged to resolve grievances which originate[d] within
their respective districts"; and (7) "effectively partici-
pate[d] in the selection of credit reporters for man-
agement trainee programs."
The Employer alleges that it restructured its opera-
tions in 1975. Prior to 1975, it divided the country
into seven regions. Each region was subdivided into
districts which, in some cases, were further divided
into area and branch offices. In 1975, the Employer
reorganized by dividing the country into four re-
gions, which were further divided into zones. Each
zone, in turn, was subdivided into district offices
and, in some cases, operations offices. The Employer
asserts that, as a result of this reorganization, the au-
tonomy of the districts was diminished substantially
from what it was in 1971.
The Employer's contentions notwithstanding, we
believe that the district office remains "the smallest
component of the Employer's business structure
which may be said to be relatively autonomous in its
operation." State Farm Mutual Automobile Insurance
Company, 158 NLRB 925, 929 (1966). Thus the rec-
ord shows that, although the regions determine the
number of credit reporter positions which are allo-
cated to each district, the district managers indepen-
dently interview and hire employees to fill vacancies
without waiting for regional or zone approval."
Moreover, up to a certain length of service, credit
reporters may be discharged by their district manag-
ers. Thereafter, district managers may recommend
discharges to the zone or regional management and
there is no evidence that such recommendations have
ever been rejected. Also, discipline is enforced at the
district level. Thus an outside reporter testified he
had received a warning for failing to meet work stan-
dards from District Manager Tolland. An inside re-
porter testified she had received a similar warning
from her immediate supervisor, who is a subordinate
of Tolland.
With regard to raises, the Employer maintains a
nationwide salary schedule. District managers, how-
ever, may independently grant raises up to an annual
income of $12,500. In addition, they may recom-
mend raises above that amount, and there is no evi-
dence that such a recommendation has ever been re-
jected. Similarly, promotions to different job
classifications at low levels may be granted indepen-
I In contrast to 1971, new employees are trained at a regional training
center in Atlanta rather than in the districts.
DUNN & BRADSTREET 165
dently by the district manager, and the district man-
ager makes recommendations for promotions to up-
per level positions. Again, there is no evidence that a
recommendation in this regard has ever been reject-
ed.
District managers directly supervise and give as-
signments to the credit reporters and to support staff
who work in their offices. An outside reporter testi-
fied that he receives his assignments from his imme-
diate supervisor, who is a subordinate of District
Manager Tolland. Although the Employer sought to
establish that zone and regional management are
commonly involved in grievance matters, there is tes-
timony by both inside and outside reporters that they
had always been able to resolve their problems and
complaints at the district level. Although policies re-
garding holidays, vacations, leaves of absence, etc.,
are generally nationwide, it is apparent that credit
reporters deal with their district manager with re-
spect to these matters.'2
Daily contact is maintained between zone manage-
ment and the districts, but the Employer's contention
that this amounts to day-to-day control is not sup-
ported in the record. Moreover, its suggestion that,
because he was stationed in the Philadelphia district
office, the Philadelphia zone manager exercised
greater authority over the day-to-day operations of
the Philadelphia district office than other district of-
fices is refuted by the testimony of one of the Em-
ployer's witnesses that the only difference between
12 As indicated previously, the Employer's contention that the region or
zone offices review district office decisions on these and other matters is
largely undercut by the evidence that district office decisions are rarel. if
ever, reversed.
the Philadelphia district office relationship with the
Philadelphia district manager and his relationship
with other district managers is that it is 'face to face
as opposed to over the telephone." Finally, although
the Employer presented conclusional testimony that
there were frequent transfers between district offices,
it presented no specific evidence regarding the fre-
quency of these alleged transfers. In fact, one witness
testified that she had been transferred from her office
to a neighboring office only once in her 17 years with
the Employer. Further, there is no evidence that
either inside or outside credit reporters have any con-
tact, other than occasional telephone conversations,
with credit reporters in other district offices. Thus, in
light of the relative autonomy of the Employer's dis-
trict offices, the separate community of interest
among employees stationed at each district office,
the wide geographic dispersion of offices in the
groupings asserted by the Employer to be the small-
est appropriate units, the absence of any bargaining
history, and the fact that no labor organization seeks
to epresent a more extensive unit of employees, we
find the following employees of the Employer consti-
tute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act.
All credit reporters and business analysts, ex-
cluding all other employees, sales employees,
commercial collection employees, clerical em-
ployees, guards, and supervisors as defined in
the Act, assigned by the Employer to its Phila-
delphia, Pennsylvania, district office.
[Direction of Election and Elcelsior footnote
omitted from publication.]
D U N N~. .. BR A .T E. . .6.