United Credit Bureau of America, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1979

242 N.L.R.B. 921 (N.L.R.B. 1979)

THE UNITED CREDIT BUREAU OF AMERICA. INC.
The United Credit Bureau of America, Inc. and Amal-
gamated Local Union No, 1231, affiliated with La-
borers International Union of North America. Cases
5-CA-8985 and 5 CA-9344
June 8, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On March 21, 1979, Administrative Law Judge Da-
vid S. Davidson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and herby orders that the Respondent, The
United Credit Bureau of America, Inc., Baltimore,
Maryland, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
I. Substitute the following for paragraph 2(e):
"(e) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTncE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against our employees in regard to their
hire, tenure, or any term or condition of employ-
ment because they engage in concerted activities
protected by Section 7 of the National Labor Re-
lations Act, as amended.
WE WILL NOT prosecute our declaration, styled
as The United Credit Bureau of America, Inc., v.
Tonia A. Johnson Anderson (File No. 14370 Su-
perior Court for Baltimore City), which arose out
of Anderson's filing of unfair labor practice
charges with the National Labor Relations
Board, and WE WILL withdraw said declaration
and reimburse Tonia Anderson for all legal ex-
penses she has incurred in defense thereof.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their right to engage in or to refrain
from engaging in any or all of the activities speci-
fied in Section 7 of the Act. These activities in-
clude the right to self-organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL offer Tonia Anderson immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent job,
without prejudice to her seniority or other rights
and privileges, and WE WILL make her whole for
any loss of earnings she may have suffered as a
result of her discharge, with interest.
THE UNITED CREDIT BUREAU OF AMERICA,
INC.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charge in Case 5-CA-8985 was filed on October 31, 1977,
by Amalgamated Local Union No. 1231, affiliated with La-
borers International Union of North America. hereinafter
referred to as the Union. The complaint in that case issued
on December 16, 1977, alleging that on or about October
28, 1977, Respondent discriminated against Tonia Ander-
son by terminating her employment and thereafter refusing
to reinstate her because she engaged in protected concerted
activities on behalf of her fellow employees and/or because
of her union activities, thereby violating Section 8(a) 1) and
(3) of the Act. In its answer Respondent denied the com-
mission of any unfair labor practices.
A hearing on that complaint was held before me in Balti-
more, Maryland, on March 22, 1978. At the conclusion of
the hearing the parties argued orally on the record and were
given leave to file briefs.
Thereafter on March 29, 1978, the Union filed the charge
in Case 5-CA-8985 and on May 24, 1978, a complaint is-
sued in that case alleging that Respondent violated Section
8(a)(1) and (4) of the Act by initiating and filing a civil
lawsuit against Tonia Anderson because she participated in
the investigation and gave testimony in Case 5-CA-8985.
242 NLRB No. 138
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answer Respondent denied the commission of the un-
fair labor practices alleged in that case.
On May 31. 1978. counsel fobr the General Counsel filed a
motion to reopen the hearing in Case 5 CA 8985 and to
consolidate the two complaints. On June 5, 1978, Respon-
dent was ordered to show cause why the General Counsel's
motion should not be granted, and on June 6, 1978. Re-
spondent filed an answer opposing the General Counsel's
motion. On June 19, 1978, a telegraphic order issued grant-
ing the General Counsel's motion. On June 20, 1978, coun-
sel ftr the General Counsel filed a motion for judgment on
the pleadings in Case 5-CA 9344 or in the alternative for
summary judgment.
The reopened hearing was held before me in Baltimore,
Maryland, on June 23, 1978. At the outset of the hearing
Respondent renewed its objection to the consolidation of
the two cases, contending that Respondent was entitled to a
hearing before disposition of the General Counsel's motion
to consolidate. Counsel for Respondent was invited to state
the matters on which he wished to be heard, and at the
conclusion of his statement, the ruling granting the motion
to consolidate the two cases was reaffirmed.'
At the hearing I indicated that the time had been inad-
equate before the hearing to determine Respondent's posi-
tion with respect to the General Counsel's alternative mo-
tions for judgment on the pleadings or summary judgment
and sought the positions of the parties with respect to
whether or not there was any further evidence required and
whether there were issues of fact. Counsel for the General
Counsel took the position that there was no further evi-
dence which he wished to produce to support of his case
and rested on the pleadings, which included a copy of the
declaration in the state court action.2 Counsel for Respon-
dent took the position that there were factual issues relating
to Respondent's motivation as to which testimony was re-
quired and indicated his intention to call witnesses as to
that issue.
After I informed the parties that I was not prepared to
grant the General Counsel's motion at that time to rule that
the evidence which Respondent wished to offer was imma-
terial, I invited counsel for Respondent to go forward with
his evidence. Counsel for Respondent then took the posi-
tion that if the General Counsel, who had the burden of
proof, was not going to present evidence in the proceeding
he would not present evidence in rebuttal to "the non evi-
dence that he's presented." I then suggested to counsel for
Respondent that the admitted allegations of the complaint
might be sufficient to support an inference that the state
court action was filed for the reasons alleged in the com-
plaint and thus require Repondent to go forward to pro-
duce evidence to rebut that inference. I stated further,
I In its post-hearing brief Respondent renews its objection to the consoli-
dation .f the two cases contending, among other things, that the ruling on
the motion to consolidate was made without first having provided Respon-
dent an opportunity for hearing on the matter and therefore violated Re-
spondent's rights to procedural due process. Respondent also contends that
the Administrative Law Judge ordered consolidation of these cases "prior to
receipt of Respondent's response in opposition to the Motion for Consolida-
tion" and was therefore "arbitrary, capricious and in total disregard of Re-
spondent's right to be heard in this matter." As stated at the hearing, Re-
spondent's opposition to the General Counsel's motion was received and
considered before motion for consolidation was granted.
2 Respondent concedes that it is a true and proper copy of the declaration.
"And this, if you feel that you want to do so, would be the
time to do it, and I don't think that the fact that he has
rested on the pleadings, means that you either should, or
should not. present evidence at this time. This is something,
obviously for you to decide, considering whatever evidence
you have, and the best interests of your client. But it doesn't
automatically follow, that because he has rested at this
point, that there is nothing further for you to do. That's fbr
you to decide." Counsel for Respondent then proceeded to
argue with respect to the General ('ounsel's motion and did
not call any witnesses. After further arguments from coun-
sel the hearing was closed. Briefs have been received from
the General Counsel and Respondent.'
After the receipt of the briefs, counsel for the General
Counsel by letter called my attention to the Decision of the
Board in Power Systems Inc., 239 NLRB 445 (1978). which
issued after the close of the hearing and which counsel for
the General Counsel contends supports its position in Case
5-CA 9344. Thereafter Respondent was permitted to file a
supplemental memorandum dealing with that decision and
its impact on this case.
Upon the entire record in this case, including my obser-
vation of the witnesses and their demeanor, I make the fol-
lowing:
FINDIN(GS AND CON(C'I.SIONS
1. IIIE BUSINFSS OF RESPONDENI
Respondent, a Maryland corporation engages in compil-
ing and transmitting credit information for commercial ac-
counts. Its principal office is in Baltimore, Maryland. Dur-
ing a representative 12-month period Respondent received
in excess of $50,000 for services performed for business en-
terprises in Maryland which in turn during the same period
purchased goods and materials valued in excess of $50,000
directly from points outside the State of Maryland. I find
that Respondent is an employer engaged in commerce
within the meaning of the Act and that it will effectuate the
policies of' the Act to assert jurisdiction herein.
11. THE LABOR ORCiANIZAFION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE A..F.(GEt) UNFAIR I.ABOR PRA( IITES
A. The Termination of Tonia Anderson
Tonia Anderson started to work for Respondent in April
1977. At the outset of her employment Anderson acknowl-
I In its brief Respondent stated that because the Motion for Summary
Judgment was filed just 3 days before the hearing, "the exact purpose of that
hearing was never made clear." Respondent also asserts, "The scope of the
hearing was limited to the Motions and Cross Motions for Summary Judg-
ment ... Since no evidence would be put on by the other side, counsel for
Respondent moved for a Cross Motion for Summary Judgment." Respon-
dent also asserts that it "awaits the date for proper hearing in this matter."
As Respondent was given an opportunity to present evidence at the hearing
on June 23 and elected not to do so, there is no occasion for a further hearing
to be held in this proceeding, and the issues will be disposed of on the record
made in the consolidated proceeding.
922
THE UNITED CREDIT BUREAU OF AMERICA, INC.
edged that she was being employed for a probationary pe-
riod to last 120 days during which she would be trained to
become a useful and productive employee for the Com-
pany. She agreed to abide by all company rules, regula-
tions, and policies and indicated her understanding she
could be terminated at any time during or after her proba-
tionary period if her performance was not up to the stan-
dards set by Respondent or if her attendance or punctuality
were considered poor. Anderson completed her training at
the end of May, 1977, before the end of the 120-day period,
and was given at 10-cent hourly increase at that time.
During her employment Anderson often ate lunch with
other employees, and the employees discussed among them-
selves working conditions which they would like to see
changed, including a longer lunch period, maternity leave,
and annual leave.' On October 26 Anderson called the
Union's office where she spoke to its representative, Clax-
ton, and made an appointment to meet him at noon on the
following day to discuss what she and other employees had
talked about. On that day Anderson decided against keep-
ing the appointment with Claxton, but later that afternoon
went to speak to Patadora Hedrick, second vice-president
of Respondent, who had general supervisory authority over
all the employees in the office. Anderson told Hedrick that
she was speaking on behalf of several other employees, that
they were not happy with some of the benefits, that some of
the others were afraid to come, and that she had come for
that reason. Anderson said that they wanted to have Blue
Cross and Blue Shield benefits, maternity leave, an extra 15
minutes added to their lunch period, and that some of the
employees wanted a day off with pay each month for per-
fect attendance which they might accumulate as an alterna-
tive to a $25 bonus that Respondent was then paying for
perfect attendance each month. After Anderson finished,
Hedrick told her that she would present these matters to the
management staff and would get back to Anderson.'
Shortly after Anderson left Hedrick's office, Hedrich
went to Respondent's personnel director, Marie Welch, to
confer with Welch and executive vice-president Jack Sau-
I have credited Anderson's uncontradicted testimony as to her conversa-
tions with other employees, eight of whom she named on cross-examination
Respondent contends that Anderson should not be credited because her tes-
timony was uncorroborated; because she only divulged the names of the
others with whom she spoke at the hearing; because her testimony as to the
length of time she worked on her wedding day was contradicted by Respon-
dent's records; because her testimony as to the presence of Susan Roche
during a meeting with Respondent's vice-president, Hednck, was effectively
contradicted; and because she responded evasively when asked about her
knowledge of NLRB procedures. As indicated below I do not rely on Ander-
son's testimony in all respects. However, with respect to this testimony, I
note that Respondent made no effort to call any of the employees named by
Anderson as witnesses to contradict her, and, even under the versions of
Respondent's witnesses, her comments to management officials on October
28 indicate that the requests she made at that time came from other sources
as well as herself. I specifically reject Respondent's contention that Anderson
was an vasive witness or generally lacking in credibility.
I Both Anderson and Hedrick testified to this conversation and their testi-
mony is in agreement with respect to these findings. Their testimony is in
conflict as to whether Hedrick was present in her office when Anderson
entered; whether employee Susan Roche was present in the office dunng the
conversation: whether Anderson mentioned that some of the girls were
thinking of forming a union; and whether Hedrick told Anderson to let
Hedrick see what she could do before bringing in a union and not to say
anything to the other girls until Hedrick got back to her. Although resolution
of these credibility issues is not free of doubt. I have not relied on Anderson's
testimony as to this meeting where contradicted by Hednck.
ber. She told them what Anderson said to her, and accord-
ing to Hedrick, they discussed whether there was anything
that they could do "to save the employee, or the investment
in the employee." Hedrick testified that they did not specif-
ically discuss at that time whether to discharge Anderson,
but that was the only alternative if they could not save her.
Welch, testified that they were upset about it "because it's
an unusual thing for somebody to come in and say that they
want this and they want that, and we felt that if she was
discontent working there, she wasn't happy, and, you know,
could disrupt other personnel if she got these particular
things." At the conclusion of their discussion, they decided
to meet with Anderson the next morning with Respondent's
treasurer, Kimberly, also present.
The next morning Anderson was called to an office where
the others were present. Sauber asked her what her prob-
lems were, and she replied that she did not have any. Sau-
ber then said that she had come in with demands, and An-
derson said that she had only asked questions on behalf of
some of the employees who wanted the things that she had
requested. After some further dispute over whether Ander-
son had made demands or asked questions. they discussed
several of the things that she had asked for including mater-
nity leave, the additional 15 minutes for lunch, and the
proposed alternative to the attendance bonus. Sauber
sought to explain why company policy did not provide
what Anderson asked for and to explain the benefits which
Respondent did provide. During the discussion Anderson
also mentioned annual leave, stating that she did not know
what it was, but that some of the other girls had asked for
it., At one point after Anderson had referred to other girls,
Welch asked her who they were. Anderson declined to
identify them, but said that they were people who lived in
her neighborhood and worked at the office. Anderson said
that she would not identify them because she did not want
them to get in trouble. Welch asked why they could not all
come and talk to her, and Anderson said that she guessed
they did not feel like they could do so. At the end of the
meeting Sauber told her that because her attitude toward
the job had changed, her work would also change: that she
would not be able to do a satisfactory job feeling as she did;
and that she was therefore terminated. Anderson shook
hands with the others in the room, wished them well, told
them it was nice working with them, and was escorted by
Welch back to her desk to get her belongings and then leave
the building. As Anderson left, Welch told her that she was
a good employee and that if she needed a good reference
with respect to her job abilities or work performance Welch
would give her one.
Hedrick testified that during the course of the meeting
the management representatives present decided without
I Anderson so testified. Hednck and Welch agreed that Anderson said that
she really did not know what annual leave was, but testified that she said
nothing about other girls asking for it. I have credited Anderson that she
specifically referred to other girls in the course of explaining her ignorance of
the significance of annual leave. In any event, it is not disputed that Ander-
son characterized annual leave as something she did not fully understand.
That alone would indicate that this request originated with employees other
than Anderson. In crediting Anderson's testimony as to this conversation I
note that she testified without contradiction that at the end of the meeting
Sauber removed a tape recorder from his desk and turned it off. I note
further that Andersn's testimony as to this meeting was otherwise essen-
tially uncontradicted
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussion to terminate Anderson because "she was . . .
demanding in what she wanted, and of course you must
have people in a good frame of mind, happy with their job,
or they are no good to you." Hedrick also testified "No one
in our company fires a person, we have a management
meeting, we have a management team. If there is a prob-
lem, we try and iron it out. In this case, we wanted to save
Mrs. Anderson, she was a fairly new employee, and, of
course, we had it, but, with her attitude, we had the meeting
to try to resolve things ... there was just no hope."
Following her discharge Anderson contacted the Union
and thereafter the charge in this case was filed.
B. The Filing of the Lawsuit Against Anderson
On March 21, the day before the initial hearing in this
case, Respondent filed a civil action against Anderson in
the Superior Court of Baltimore City.7 The contents of the
declaration are as follows:
The Plaintiff, THE UNITED CREDIT BUREAU
OF AMERICA, INC., a body corporate of the State of
Maryland, by its attorneys, Edward L. Blanton, Jr. and
Jay V. Strong, Jr., brings this suit against the Defend-
ant, TONIA A. ANDERSON, and as its cause of ac-
tion states:
For that the Defendant, TONIA A. ANDERSON,
on or about II April 1977, falsely represented to the
Plaintiff her intention to enter into a long-term rela-
tionship of employment with the Plaintiff in a capacity
for which she was not, by training or experience,
suited, that the Defendant knew, at the time she made
the foregoing representation, that it was false; that in
fact she intended to work no longer than necessary to
obtain the benefits of the Plaintiffs training pro-
gramme and secure a position as a bonafide employee
of the Plaintiff and thereafter to provoke her discharge
under circumstances which would permit her to file an
unfair labour practice charge against the Plaintiff in
the expectation that the Plaintiff would elect, as a mat-
ter of expediency, to accept an offer of settlement; that
such settlement offer would, under standard proce-
dures well known to the Defendant, be made on her
behalf by the National Labour Relations Board, pur-
suant to which she would be offered reinstatement to
her former position and payment of full wages for the
period between the date of her discharge and the date
Plaintiff accepted the offer of settlement, the effect of
which would have been to secure for the Defendant a
"paid vacation" to which she was not entitled, but
which she would receive if her scheme were successful;
that the false representation of her intentions was
made to persuade the Plaintiff to pay her while she
prticipated in its training programme and to expend
its money to provide instruction for her, which expen-
ditures the Plaintiff made in the expectation that she
intended to work for Plaintiff for a sufficient period to
compensate Plaintiff for the time and money to train
her; that the Plaintiff relied upon her representations
and had the right to rely upon her representations with
It appears that the declaration in the civil action was served on Anderson
after the initial hearing in this case.
full belief in their truth; and had the Plaintiff not be-
lieved that the Defendant did not intend to so work,
the Plaintiff would not have agreed to expend its time
and money to train her; that the Plaintiff believed the
Defendant's representations to be truthful, did hire the
Defendant and provide training for her, at great cost
and expense to the Plaintiff and, in addition, paid the
Defendant a full-time salary during the period she was
being trained; that within ninety (90) days after her
training period had been completed, the Defendant de-
liberately provoked an incident which she knew would
lead to her dismissal as an employee of Plaintiff by
making unreasonable demands upon the Plaintiff to
change the conditions under which she worked, which
conditions were explained to her prior to her accepting
employment with the Plaintiff and to which conditions
she implicitly agreed by accepting employment; that
she was, as a direct consequence of the incident, dis-
missed, and she immediately thereafter filed a com-
plaint of unfair labour practice against the Plaintiff;
that an offer in settlement was immediately made after
a perfunctory investigation by the National Labor Re-
lations Board, that, if the Plaintiff had accepted such
offer, it would have been required to reinstate the De-
fendant and pay her back wages between the date of
her dismissal and the date of her reinstatement; that
the damages sustained by the Plaintiff as a result of the
fraud perpetrated by the Defendant consist of wages
paid to the Defendant by the Plaintiff during the train-
ing period, the pro rata cost of operating Plaintiffs
training department during the period in which the
Defendant was being trained by the Plaintiff and the
cost of defending the charge of unfair labor practice
filed by the Defendant against the Plaintiff;
WHEREFORE, the Plaintiff claims the sum of TEN
THOUSAND ($10,000.00) DOLLARS
As set forth above at the reopened hearing the General
Counsel rested on the pleadings and Respondent offered no
further evidence.
C. Concluding Findings as to Anderson's Discharge
The General Counsel contends that Anderson was dis-
charged because she engaged in protected concerted and/or
union activities. Respondent contends that it had no knowl-
edge of any union activities engaged in by Anderson and
that Respondent discharged Anderson because of her atti-
tude and not because of her concerted activities. Respon-
dent contends that the only evidence of concerted activity
was Anderson's uncorroborated statement that she was
looking forward to group action, a statement which the
Company did not believe and had no reason to believe be-
cause Anderson refused to say who the others in the group
were and no one came forward to support her demands.
Respondent also contends that there was no evidence that
her demands were made for the purpose of inducing group
action and that it viewed her demands as a series of individ-
ual complaints relating to working conditions on her own
behalf.
The only evidence that Respondent was aware of any
union activity is Anderson's testimony as to what she told
924
THE UNITED CREDIT BUREAU OF AMERICA. INC.
Hedrick at the outset of their conversation on October 27,
which I have indicated above I have not relied on. Accord-
ingly, I find that the evidence does not support that Ander-
son's termination violated Section 8(a)(3) of the Act.
I find further however, that the evidence does establish
that Anderson engaged in protected concerted activity, that
Respondent knew of that activity, and that Anderson was
discharged because of it. Anderson's request or demands,
however characterized, were not merely for improvement of
her personal working conditions. It is undisputed that she
stated clearly that she was asking for benefits on behalf of
herself and other employees. No witness testified that An-
derson's claim was not believed or that disbelief of Ander-
son in any way entered into the decision to terminate her,
and any doubt should have been substantially dispelled by
Anderson's statement about the request for annual leave.
Surely if Anderson were speaking only for herself, she
would have known what she was asking for.
Whether or not Anderson had in fact talked to any other
employee before asking Hedrick for improvement of her
benefits and those of other employees, her request to Hed-
rick, which she repeated the next day, in any event consti-
tutes protected concerted activity. Thus, in Alleluia Cushion
Co.. Inc., 221 NLRB 999 (1975), the Board held that in the
absence of evidence that other employees do not share the
expressed interests and concerns. the test of concerted ac-
tivity is not whether an employee acts alone without any
outward manifestation of support for his efforts, but
whether his complaint or objective is a matter of common
interest and concern to his fellow employee.8 Moreover, as I
have credited Anderson that she had discussed with other
employees the matters she raised with Hedrick, the pro-
tected concerted nature of her activities is clear.
Respondent contends that it discharged Anderson be-
cause of her attitude rather than her protected concerted
activities. However, Hedrick's testimony quoted above as to
the reasons for Anderson's discharge as well as Sauber's
statements to Anderson when he told her she was dis-
charged show that the only manifestation of attitude for
which Anderson was discharged was her request for im-
proved benefits for herself and others which to Respondent
indicated that she was an unhappy employee whose work
would inevitably suffer and who had to be removed from
the work force.
There can be no question in this case that Anderson's
termination was directly caused by the requests she made to
Respondent. Even if Respondent truly viewed these re-
quests as indicating that her work would necessarily suffer,
Respondent's subjective intent is not determinative. It is
sufficient that it can reasonably be said that Respondent's
conduct in this case tended to interfere with the free exer-
cise of employee rights under the Act and therefore violated
Section 8(a)(l) of the Act.2 In any event, however, the cir-
cums.ances of this case and the testimony of Hedrick and
Welch as to the reasons for Andcrson's discharge warrant
the inference that they viewed Anderson as a troublemaker
I See also Key City Mechanical Contractors, Inc.. 227 NLRB 1884 (11977):
Air Surrey Corporation, 229 NLRB 1064 (1977): Pink Moody, Inc., 237
NLRB 39 (1978): and Self Cycle & Marine Distributor Co.. Inc. 237 NLRB
75 (1978).
9 San Lorenzo Lumber Co., Inc.. 238 NLRB 1421 (1978): Ross Valley Sav-
ings & Loan .4ssocition, 194 NLRB 270 (11971.
for seeking better conditions of employment and sought to
rid the office of her immediately to put an end to any fur-
ther employee activity aimed at changing working condi-
tions. It is impossible to escape the conclusion that Sauber,
Hedrick, and Welch intended specifically that Anderson's
discharge interfere with employee rights. °0 The rights exer-
cised by Anderson in this case go to the heart of Section 7,
and acceptance of the justification advanced by Respon-
dent would reduce those rights to a hollow shell.
As part of its defense Respondent contends that Ander-
son's objective in airing her complaints was to obtain time
off from work with pay indirectly by bringing about her
dismissal and filing a charge with the NLRB in the expecta-
tion that rather than litigate the case Respondent would
accept a settlement and pay her for the time lost from her
employment. Respondent submits this contention along
with evidence as to her attitude toward prior employment
and toward her job with Respondent in the attempt to show
that Respondent was justified in dismissing her for her atti-
tude. The only evidence offered to support this contention
was that Anderson had recently married, that she had not
had time off foir a honeymoon. that she had been unhappy
because she was not granted sufficient time off on her wed-
ding day, and that she believed a prior employer had failed
to treat her properly after she had incurred personal dam-
age and loss in the course of her duties on that job. On the
evidence, the premise of this defense is pure speculation.
Furthermore, those who discharged Anderson relied on
nothing more than her requests for improved benefits in
deciding to discharge her. Finally, Respondent was not co-
erced or entrapped into discharging Anderson for engaging
in protected activity, and it is hardly a matter of defense
that an employee could count on her employer to discharge
her unlawfully in scheming to procure her own discharge.
I find that Anderson's discharge violated Section 8(a)(l)
of the Act.
D. Concluding Findingsv as to the Filing of the Civil Action
In its civil action Respondent seeks damages of $10,000
from Anderson on the grounds that she defrauded Respon-
dent by falsely representing to Respondent an intention to
enter into a long term relationship of employment while
intending to work no longer than necessary to obtain train-
ing and, thereafter, to provoke her discharge under circum-
stances which would permit her to file a charge against
Respondent in the expectation that Respondent would elect
as a matter of expediency to accept an offer of settlement
rather than litigate her discharge; thus providing her a paid
vacation to which she was not entitled. As damages Re-
spondent claims the wages paid by Anderson during her
training period, the pro rata cost of Respondent's training
program during the period of Anderson's training, and the
cost of defending against the charge.
The General Counsel contends that Respondent's filing
of the lawsuit constituted discrimination against Anderson
because she participated in the Board investigation and tes-
tified with respect to the charge based upon her discharge
and that it also recessarily had the effect of interfering with,
restraining, and coercing employees in the exercise of their
10Cf. Wanda Petroleum Conmpan. 183 NLRB 363, 371 (19701), enfd. 444
F.2d 217 (5th Cir 1971).
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 rights. Respondent contends that the filing of the
lawsuit without more is not sufficient evidence to sustain
either contention because Anderson was not aware of the
filing of the lawsuit at the time that she participated in the
investigation or testified at the hearing on the complaint
based on her discharge. Respondent also contends that the
General Counsel has failed to prove Respondent's retali-
atory motivation or that Anderson was an employee within
the meaning of the National Labor Relations Act at the
time the suit was filed.
With respect to the latter contention, Respondent asserts
that there is an issue of fact which was not litigated as to
Anderson's employee status because it has information and
believes that Anderson had other regular and substantially
equivalent employment prior to the time the suit was filed
and the General Counsel did not prove otherwise. I find no
merit in this contention. An employee who is unlawfully
discharged does not lose status as an employee of the em-
ployer responsible fbr the unlawful discharge merely be-
cause she takes other employment. Once discharged, the
employee has a duty to seek interim employment to miti-
gate backpay liability, and taking such employment does
not extinguish reemployment rights. Such rights continue
until there has been a valid offer of reinstatement." As Re-
spondent was the wrongdoer responsible fbr Anderson's
discharge, it was its burden to show any circumstances
which might terminate Anderson's status as an employee.
As Respondent did not do so, this contention is rejected.
The remaining contentions are largely disposed of by the
Board's Decision in Power ,Svstenx, Inc.. 239 NLRB 445
(1978). There, noting that the Board with court approval
has given an expansive scope to the protections afforded by
Section 8(a)(4), the Board held that the employer violated
Section 8(a)(4) and (I) of the Act by instituting a civil ac-
tion for damages against its employee, Sanford, for alleg-
edly filing a charge with the Board without probable cause
and for the purpose of harassing the employer.' The Board
found that there was no evidence to show that Sanford
lacked probable cause for filing his charge or that he did so
with the purpose of harassing his employer, and that the
evidence relied on by the employer negated its assertion
that it had reasonable grounds for its lawsuit. The Board
found futher that the complaint and amended complaint
filed by the employer were clear evidence that the true pur-
pose behind its civil action was to penalize Sanford for as-
serting his rights under the Act and to discourage him and
other employees from further asserting those rights. Finally,
the Board found that the doctrine of Clyde Taylor, dhbla
Ch'de Taylor CompanY', 127 NLRB 103 (1960). did not pre-
clude it from basing any finding of an unfair labor practice
on the filing of the lawsuit because the lawsuit was brought
in order to pursue an unlawful objective of penalizing San-
ford for filing a charge and thus depriving him of access to
Board processes and discouraging its employees generally
from seeking such access.
Here, while the civil action sounds of fraud, the key ele-
ment on which it is based is Anderson's filing of the charge
in Case 5 (A 8985, for only by the filing and pursuit of the
H The Richard W Kaoal ( rnlpatm, 162 NL RH 1320, 1331 (1967).
12 The complaint was later amended to allege that the charge was wrong-
ful, malicious, willful, wanton, harassing, and xexatious.
charge on Anderson's behalf could the alleged scheme have
been carried to fruition. Otherwise Anderson could not
have reaped any benefit from provoking her own discharge.
Here. unlike Power Systems, Inc., Anderson's charge had
sufficient merit to cause the Regional Director to issue a
complaint. As a consequence, also unlike Power Systems,
Inc., there was a hearing on that complaint at which Re-
spondent made contentions almost identical to the allega-
tions in the declaration as to Anderson's motivation in seek-
ing improved benefits and filing her charge. Unlike Power
Systems, Inc.. it need not even be considered whether An-
derson had probable cause for filing her charge, for clearly
she did. Also. as has been pointed out above, the alleged
scheme of Anderson is based on no more than speculation.
At the initial hearing on Anderson's discharge, Respondent
failed to produce any substantial evidence in support of its
contention, and when offered the opportunity to present
further evidence as to its motivation at the reopened hear-
ing on the consolidated complaint Respondent declined to
present any further evidence.
The conclusion is compelled, and indeed more strongly
than in Power Systems, Inc., that Respondent's civil action
was filed purely for purposes of retaliation to punish Ander-
son fbor seeking redress for her discharge from the Board
and to discourage other employees from ever emulating
Anderson in seeking to enforce their rights just as Ander-
son's discharge was intended to quell any attempt to engage
in concerted activity for the purpose of improving their
benefits.
That Anderson may not have been made aware of the
civil action until after she had testified does not negate the
inference of punitive intent, for by its nature punishment
follows the deed, and the discouragement of Respondent's
other employees is not diminished because the declaration
was not served until after Anderson testified in this pro-
ceeding.
Respondent's alternative contentions that Power Systems,
Ine.. was wrongly decided and in any event distinguishable
must be rejected. Apart from my disagreement with Re-
spondent's contention as to the correctness of the Board's
decision, I am constrained to follow Board precedent until
reversed by definitive court action. The fact that the em-
ployee in Power S.stetnms, Inc., was a union steward does not
distinguish the cases. Respondent's assertion that the Board
should be more jealous of the right of union representatives
to file charges than of the rights of individuals is baseless.
Any individual has the right to file charges. and the act
affords no special status to those holding union office. Re-
spondent's other contentions are based on the assumption
that Anderson abused Board processes, are contrary to the
facts, and are without merit.
Accordingly, I find that Respondent, by filing its civil
action against Tonia Anderson in the Superior Court of
Baltimore City. Maryland, violated Section 8(a)(4) and (1)
of the Act.
IV. 111 RMI:I)Y
Having found that Respondent engaged in unfair labor
practices. I shall recommend that it he ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
926
THE UNITED CREDIT BUREALI OF AMERICA INC.
As I have found that Respondent unlawfully discharged
Tonia Anderson. I shall recommend that Respondent be
ordered to offer her immediate and full reinstatement to her
former job, without prejudice to her senioritry or other
rights and privileges. I shall further recommend that Re-
spondent he ordered to make her whole for any loss of
earnings she may have suffered as a result of her discharge
by payment to her of the amount she normally would have
earned from the date of her discharge until the date of Re-
spondent's offer of reinstatement, less net earnings, to
which shall be added interest to be computed in the manner
prescribed in F. W. Woolworth Companlv. 90 NLRB 289
(1950), and Florida Steel Corporation. 231 NLRB 651
(1977)."
In order to dissipate the effect of Respondent's filing of
the civil action against Tonia Anderson I shall further rec-
ommend that Respondent be ordered to cease and desist
from prosecuting said civil action and to withdraw it. In
order to restore Anderson to the position she would have
been in absent Respondent's violation of Section 8(a)(4)
and (1) of the Act, I shall recommend that Respondent be
ordered to make Anderson whole for all legal expenses she
has incurred in defense of Respondent's civil action.',
Upon the basis of the above findings of fact and the en-
tire record in this case, I make the following:
C(N('I SI(NS ()F LAW
1. The United Credit Bureau of America. Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2). (6), and (7) of the Act.
2. Amalgamated Local Union No. 1231, affiliated with
Laborers International Union of North America. is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Tonia Anderson because of her pro-
tected concerted activities. Respondent has engaged in un-
fair labor practices affecting commerce within the meaning
of Sections 8(a)( I1) and 2(6) and (7) of the Act.
4. By filing a declaration in the Superior Court of Balti-
more City. Maryland., which seeks damages from Tonia
Anderson based on the allegation that Anderson filed
charges against Respondent as part of a fraudulent scheme.
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(4) and (1)
and 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDER '
The Respondent, The United Credit Bureau of America.
Inc., Baltimore. Maryland. its officers, agents. successors.
and assigns, shall:
" See, generally. Is Plumhing & lhaling ('o., 138 NI RB 716 1i962).
"Power Ssterms. Inc. 239 NLRB 445 ( 1978
'' In the event no exceptions are filed as provided bh Sec: 102.46 of the
Rules and Regulations oft the National I.ahor Rel.tlons Board. the findings,
1. C('ease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure of employment or any
term or condition of employment because they engage in
concerted activities protected b Section 7 of the National
Labor Relations Act.
(h) Prosecuting its declaration styled as 7'hc [n'ited
Credit Bureau o /'.4 meric an II (. I. 7 i 1nia . Johnson . lnder oir S
(File no. 14370. Superior Court for Baltimore ('itS ,. which
arose out of Anderson's filing of unfair labor practice
charges with the National Labor Relations Board.
(c) In ans other manner interfering with. restraining, or
coercing employees in the exercise of their right to engage
in or refrain from engaging in any or all the activities speci-
fied in Section 7 of the Act.
2. Take the bollowing affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Tonia Anderson immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her whole
for any loss of earnings she may have suffered as a result of
her discharge in the manner set forth in the section of' this
Decision entitled "The Remedy."
(b) Withdraw its declaration, styled as The L 'n!cd Credit
Bureau o Anmerica. Inc. v. Tonia ,4. Johnson .4decrson (File
No. 14370) which Respondent caused to be instituted
against Tonia Anderson in the Superior Court of Baltimore
City. Maryland and reimburse Tonia Anderson for all legal
expenses she has incurred in the defense thereof.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social securits payment records. timecards.
personnel records and reports, and all other records rel-
evant and necessary to a determination of compliance with
paragraph (a) above.
(d) Post at its Baltimore. Maryland place of business
copies of the attached notice marked "Appendix.", ('opies
of said notice. on forms provided hby the Regional Director
for Region 5. ater being duly signed by Respondent's rep-
resentative. shall he posted by it immediately upon receipt
thereof and be maintained bs it fir 60 consecutive days
thereafter, in conspicuous places, including all places where
notices are customarily posted. Reasonable steps shall he
taken by Respondent to insure that said notices are not
altered, defaced. or covered by any other material.
(e) Notif' the Regional Director for Region 5. in writing.
within 20 days frm the date of this Order what steps have
been taken to comply herewith.
conclusions and recommended Order herein shall, as provided In Sec 102 48
of the Rules and Regulations. be adopted b the Board and become its
findings, conclusions. and Order. and all objections hereto shall be deemed
waived fir all purposes
'61 In the event that this Order is enfi)rced h a Judgmnent oIf a nted
Staltes (C'our[ ol Appeals. the words In the notilce reading "Posled h Order of
the National l.abor Relations Board" shall read "Posted Pursuant to Jdg-
ment eof the t nited States (ourt o Appeals inforclng an Order or the Na-
tional ahbor Relations Board "
927