Follett Corp.

National Labor Relations Board - Board Decisions

Aug 12, 1966

160 N.L.R.B. 506 (N.L.R.B. 1966)

506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineering designers work in 7 of the 14 departments at Employ-
er's Schenectady plant that employ unit employees. In general, they
work alongside and under the same supervision as the unit designers.
Although the work they do is similar to that of the designers, in gen-
eral they are allowed more freedom in which to develop new ideas
and are not required to follow prescribed drafting procedures. Fur-
ther, the work they do is far more varied than that of the designers
and in some cases involves work other than drafting. The engineer-
ing designers are paid on a scale different from that of unit employ-
ees with a substantially higher maximum and fringe benefits of non-
unit employees.
Although the illustrators in the unit do work similar to that of the
technical visualizer, a majority of their time is spent making concep-
tual drawings and doing freehand sketching. Further, the technical
visualizer has his own office apart from the unit illustrators, is paid
on a different wage scale, and receives fringe benefits not available
to unit employees.
In view of the foregoing, and upon the entire record, including
especially the 13-year interval during which the Union did not repre-
sent the engineering designers and the 9-year interval during which
the technical visualizer was without union representation, we find
that the issues herein raise a question concerning representation not
properly to be resolved by a petition for clarification of unit. Accord-
ingly, we shall dismiss the petition.
[The Board dismissed the petition to amend and clarify
certification.]
Follett Corporation and Retail , Wholesale and Department Store
Union ( RWDSU ), AFL-CIO, Petitioner . Case 13-RC-10758.
August 19,1966
DECISION ON REVIEW AND CERTIFICATION
OF REPRESENTATIVE
On April 15, 1966, the Regional Director for Region 13 issued a
Supplemental Decision on Objections and Direction of Second Elec-
tion in the above-entitled proceeding, in which he sustained the
Employer's objections to conduct of the Petitioner affecting the
election results,' set aside the election, and directed that a second
'The tally of ballots for the election, which was held on March 16, 1966, showed that
of approximately 118 eligible voters, 113 cast ballots, of which 68 were for and 39 against
the Petitioner, 5 were challenged , and 1 was void The challenges were insufficient in num-
ber to affect the results.
160 NLRB No. 37.
FOLLETT CORPORATION 507
election be held. Thereafter, the Petitioner, in accordance with Sec-
tion 102.67 of the National Labor Relations Board Rules and Regula-
tions, filed with the National Labor Relations Board a request for
review captioned "exceptions" as to the Regional Director's Supple-
mental Decision, contending that the misrepresentations contained
in the leaflets involved were insubstantial and did not constitute a
basis for setting aside the election, under the Board's policy set
forth in Hollywood Ceramics Company, Inc., 140 NLRB 221. The
Employer filed a motion to strike and a statement in opposition to the
Petitioner's request.
On May 6, 1966, the Board by telegraphic order granted the request
for review and stayed the second election pending its decision on
review. On May 31, 1966, the Employer filed a motion for reconsid-
eration of the grant of review and a brief in support of the Regional
Director's Supplemental Decision,2 and on the same date the Peti-
tioner filed a brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Brown,
Jenkins, and Zagoria].
The Board has considered the entire record in this case with respect
to the issues under review, including the positions of the parties,
and makes the following findings :
Objection 1, as found by the Regional Director, involves a leaflet
distributed to employees by the Petitioner at 4:30 p.m., March 14,
1966, 2 days before the election. The leaflet, entitled, "A SPECIAL
MESSAGE FROM FULLER BRUSH CO. EMPLOYEES .. .
(Members of RWDSU)," was prepared by International representa-
tives of the Petitioner in cooperation with the chief steward and
another employee of Fuller Brush Co., and it set forth a number of
benefits allegedly included in the Petitioner's .1965 contract with
Fuller Brush Co. covering its employees. The leaflet stated, in perti-
nent part,
the minimum rate for packers in our warehouse is $2.42 per hour
& 10% annual bonus. How do your rates compare with these?
2In this postreview document , the Employer, inter alia, untimely sought to put into
issue an alleged misrepresentation in Petitioner 's open assertion that it obtained, apart
from wages , certain named benefits in its first contract with Fuller Brush Co In any
event , had this issue been timely raised in the request for review , we would have con-
cluded that there was no substantial misrepresentation as virtually all the benefits recited
were in fact included in the contract which made their continuance obligatory and not
permissive under company policy.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to objection 1, the Employer asserted , inter cilia , that this state-
ment was inaccurate on the basis of the following provisions of the
Petitioner 's contract with Fuller Brush :
Article VI, Sec. 1. All employees in their respective job classifi-
cations shall receive the rates of pay hereinafter set forth for the
duration of this agreement.
Classification Rate 8/1/65 Rate 5/1/66 Rate 5/1/67
Warehousemen--_______ $2 35 $2 42 $2 48
Article VI, Sec. 4. The starting rate of pay for each new
employee in the warehouse job classification shall be thirty-five
(35) cents per hour less than the rate of pay set forth in Section
1 herein. Subject to the conditions of Article II, Section 3, he
shall progress to the rate established in Section 1 herein as fol-
lows: After three (3) months of service from date of hire, fif-
teen (15) cents per' hour increase, and after six (6) months of
service from date of hire, an additional twenty (20) cents per
hour increase.
The Regional Director observed correctly that the rates of pay
negotiated by the Petitioner for warehouse employees of other com-
panies was a vital element to the eligible voters (the election was con-
ducted in a unit of warehouse employees) .3 He concluded that the
above-quoted statement in the March 14 leaflet was a substantial mis-
representation because the rate of $2.42 did not take effect until
May 1, 1966, and because employees with less than 18 months' senior-
ity would not be eligible for it. The Petitioner contends that the
7 cents discrepancy in the stated warehouseman's hourly rate, and
the fact that employees would not receive the stated benefits until
they served a 6-month probationary period and became entitled by
their tenure to the annual bonus, did not constitute substantial
departures from the truth. Petitioner notes further that every Ful-
ler Brush employee was making the $2.35 hourly rate on March 14,
1966, and would be receiving the new $2.42 rate within a month and
a half. We find merit in the Petitioner's contention.
In our opinion, as the $2.42 hourly rate was in fact to become
effective on May 1, 1966, and was likely to be in effect if and when the
Petitioner initiated negotiations with the Employer, we do not view
the overstatement of the rate, in the circumstances, as a substantial
3 The Employer 's warehouse employees were currently receiving from $1 . 45 to $1.80
an hour , with one employee receiving $ 2 20 an hour.
TRAILWAYS OF NEW ENGLAND, INC. 509
misrepresentation.4 Furthermore, the eligible employees could rea-
sonably construe the stated rate as applicable to permanent employ-
ees and the annual bonus as being linked with the length of employ-
ment during the year. Accordingly, objection 1 is hereby overruled.
Objection 2 relates to alleged misrepresentations in another leaflet
distributed by the Petitioner at 4:30 p.m., March 15, the day before
the election. This leaflet listed benefits allegedly included in the Peti-
tioner's current contract with Quaker Oats Co. whose employees it
also represented. The Regional Director found that the Petitioner's
statement that Quaker Oats employees received "triple time for holi-
days," although less important than the matter of hourly rates
involved in objection 1, was also an objectionable misrepresentation
because the contract actually provided for holiday pay at two and
one-half times the regular hourly rate. We find this misrepresenta-
tion, in the context of the entire election campaign, to be insubstantial
and an insufficient basis for setting aside the election. We therefore
overrule objection 2.
Accordingly, as we have overruled the objections and the tally of
ballots shows that the Petitioner has obtained a majority of the valid
ballots cast, we shall certify it as the exclusive bargaining representa-
tive of the employees in the appropriate unit.
[The Board certified Retail, Wholesale and Department Store
Union (RWDSU), AFL-CIO, as the designated collective-bargaining
representative of the employees of the Employer.]
4 Hollywood Ceramics Co., Inc., supra.
Trailways of New England , Inc. and Amalgamated Association
of Street, Electric Railway and Motor Coach Employees of
America, AFL-CIO. Cases 1-CA-4549, 4639, 4657, 4746, and
4752. August 1 2,1966.
'DECISION AND ORDER
On May 11, 1966 Trial Examiner Ramey Donovan issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in unfair labor practices as alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the Gen-
eral Counsel filed exceptions to the Trial Examiner's Decision and a
supporting brief and the Respondent filed a brief in support of the
Trial Examiner's Decision.
160 NLRB No. 44.