Follett Corp.

National Labor Relations Board - Board Decisions

May 5, 1967

164 N.L.R.B. 378 (N.L.R.B. 1967)

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Follett Corporation ; Wilcox & Follett
Company, Follett College Book Company,
and Follett Library Book Company,
Operating Divisions of Follett Corporation;
Follett Publishing Company; and American
Publishers Corporation and Retail,
Wholesale and Department Store Union
(RWDSU ), AFL-CIO. Case 13-CA-7613.
May 5,1967
DECISION AND ORDER
Upon a charge filed by Retail, Wholesale and
Department Store Union (RWDSU), AFL-CIO,
herein called the Union or Charging Party, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 13,
issued his complaint, dated October 26, 1966,
against Follett Corporation; Wilcox & Follett
Company, Follett College Book Company, and
Follett Library Book Company, Operating Divisions
of Follett Corporation; Follett Publishing Company;
and American Publishers Corporation, hereinafter
referred to as the Respondent or the Employer,
alleging that the 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 upon the Respondent
and the Charging Party.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on or about
August 12, 1966,1 the Union was duly certified by the
Board," as the exclusive bargaining representative of
Respondent's employees in the unit found
appropriate and that, since on or about August 12
and September 30, Respondent has refused to
recognize or bargain with the Union as such
exclusive bargaining representative, although the
Union has requested it to do so. On November 14,
Respondent filed its answer denying that the unit as
described was appropriate and denying that a
majority of its employees designated the Union as
their representative, although admitting a Board-
conducted election and certification. As an
affirmative defense, Respondent claims that the
certification was invalid because of alleged
objectionable conduct by the Union immediately
prior to the election. Respondent admits the Union's
' All dates hereafter refer to 1966 unless otherwise specified
2 See, Decision on Review and Certification of Representative,
Case 13-RC-10758, 160 NLRB 506
3 The Employer' s request for oral argument is hereby denied as
the complaint and answer and entire record, including briefs,
adequately present the issues and positions of the parties
The Employer also has requested, through a subpeona duces
tecum, all affidavits , memoranda , and correspondence of the
Board relating to Case 13-RC-10758 The General Counsel filed a
petition to revoke the subpena Under the rule enunciated by the
Board in Ra-Rich Manufacturing Corporation, 121 NLRB 700,
request to bargain, and that, since on or about
September 30, it has refused to do so.
On November 21, the General Counsel filed with
the Board a motion to transfer proceedings to the
Board and a motion for summary judgment
requesting, in view of the admissions contained in
the Respondent's answer, that the allegations of the
complaint be found to be true and that the Board
made findings of fact and conclusions of law in
conformity with the allegations of the complaint. On
November 25, the Board issued an order granting
motion and transferring proceedings to the Board
and a notice to show cause, transferring the present
proceeding to itself. Thereafter, Respondent filed a
response to order to show cause and an answer to
motion for summary judgment,3 and a brief in
support thereof, contending that it is entitled to a
hearing in support of its affirmative defense relating
to the issues resolved against Respondent in the
prior representation case and claiming it could
introduce evidence which was unavailable to it at the
time of the related representation proceedings. For
the reasons set forth below, the Board finds no merit
in the Respondent's position, and grants the General
Counsel's motion for summary judgment.
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 case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Follett Corporation; Wilcox & Follett Company,
Follett College Book Company, and Follett Library
Book Company, Operating Divisions of Follett
Corporation; Follett Publishing Company; and
American Publishers Corporation each are, and
have been at all material times herein, corporations
duly organized under, and existing by virtue of the
laws of the State of Illinois and are affiliated
businesses with common officers, ownership,
directors, and operators which formulate and
administer a common labor policy. Each corporation
at all material times herein maintained its principal
place of business at 1000 West Washington
Boulevard, Chicago, Illinois, and all constitute a
single-integrated business enterprise. During the
Respondent is only entitled to pretrial statements or affidavits of
witnesses after declarants have testified at a hearing. See Rules
and Regulations, Series 8, as amended, Sec 102 118 Moreover, it
would appear that the documents subpenaed by Respondent are
part of the General Counsel's work records which are not material
in the instant case, and can , contrary to the Board 's practice, only
be used to relitigate matters disposed of in the representation
case Frito-Lay, Inc , 161 NLRB 950, and cases cited in fn 5
herein. Accordingly, we hereby grant the General Counsel's
petition to revoke the subpena
164 No. 47
FOLLETT CORPORATION 379
calendar year 1965, Respondent sold, transferred,
and delivered from its principal place of business in
Chicago, Illinois, goods and materials valued in
excess of $1 million directly to States other than
Illinois.
Respondent admits, and we find, 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.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and we find, Retail,
Wholesale and Department Store Union (RWDSU),
AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Pursuant to a petition filed November 17, 1965,
the Regional Director for Region 13 issued a
Decision and Direction of Election on February 14,
1966, directing an election in a unit of Respondent's
employees. Thereafter, an election by secret ballot
was conducted under the direction and supervision
of the Regional Director for Region 13 on March 16,
in which the Union received a majority of the valid
ballots.
Timely objections to conduct affecting the results
of the election were filed on March 22, by the
Employer. On April 15, the Regional Director issued
a Supplemental Decision on Objections and
Direction of Second Election in which he sustained
the Employer's objections to conduct of the
Charging Party affecting the election results, set the
election aside, and directed a second election.
Thereafter, the Charging Party filed a request for
review with the Board entitled "exceptions" which
the Board granted. On August 12, the Board issued
its Decision on Review and Certification of
Representative, in which the Board, contrary to the
Regional Director, overruled the Respondent's
objections to the election, and certified the Charging
Party as the exclusive bargaining representative of
the employees in the appropriate unit.4
By letter dated August 15, the Charging Party
requested negotiations with the Employer. The
Employer then filed a motion for reconsideration of
Board's Decision on Review and Certification of
Representative, which was denied by the Board.
Subsequently, by letter dated September 26, the
Charging Party again requested Respondent to
bargain. The Respondent admittedly declined, and
has continued to decline, to bargain with the
Charging Party since that time, in order that
Respondent might test the Board's rulings and
Decisions in the representation case.
Respondent raises, as a defense in this
proceeding, issues as to the appropriateness of the
unit and the Union's preelection conduct which
allegedly affected the Union's majority status. As an
affirmative defense, Respondent again raises
objections as to the Union's preelection conduct. In
its brief in support of response to order to show
cause, Respondent claims it is entitled to a hearing
to show, in fact, that its objections to the election
have merit and to introduce, as newly_ discovered
evidence, that the Union's alleged preelection
misconduct, in fact, misled employees and
influenced their vote.
The Board and Courts have stated numerous
times that in the absence of newly discovered or
previously unavailable evidence, issues which were
or could have been raised in a related representation
proceeding may not be relitigated in an unfair labor
practice proceeding.5 Here, the question of the
appropriate unit was before the Board on
Respondent's request for review which was denied.
Similarly, Respondent's affirmative defenses raise
the same objections already decided by the Board in
the related representation proceeding, as does
Respondent's denials of majority status based on its
objections to the election.6 As it is apparent that
Respondent only seeks to relitigate in this unfair
labor practice proceeding matters already
determined in the representation case, we shall
grant the General Counsel's motion for summary
judgment.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of the Respondent
in an appropriate unit , and that the Union at all times
since August 12, 1966, has been and now is the
exclusive bargaining representative of all the
employees in such unit, within the meaning of
Section 9(a) of the Act. We further find that
Respondent has, since September 30, 1966, refused
to bargain collectively with the Union as the
exclusive bargaining representative of its employees
in the appropriate unit , and that, by such refusal, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of 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 the
' See 160 NLRB 506
5 Pittsburgh Plate Glass Company v. N L R.B , 313 U S 146,
Fnto-Lay Inc, 161 NLRB 950, Collins & Atkman Corporation,
160 NLRB 1750; Untied States Rubber Company, 155 NLRB 1298.
6 We also find no merit in Respondent's assertion that it is
entitled to a hearing to present newly discovered and previously
unavailable evidence The only "previously unavailable
evidence" Respondent claims to present would be evidence that
employees were in fact misled by the Union's preelection
handbills. However, we have previously found that the alleged
misrepresentations were insubstantial , and did not constitute
substantial departures from the truth Such a claim of previously
unavailable evidence , in this instance , is only an attempt to
relitigate issues raised on objections in the underlying
representation case.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's 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 commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it cease
and desist therefrom , and, upon request , bargain
collectively with the Union as the exclusive
representative of all employees in the appropriate
unit and, if an understanding be reached, embody
such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Follett Corporation; Wilcox & Follett
Company, Follett College Book Company, and
Follett Library Book Company, Operating Divisions
of Follett Corporation ; Follett Publishing Company;
and American Publishers Corporation , constitute a
single-integrated business enterprise and is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Retail , Wholesale and Department Store Union
(RWDSU), AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and regular part -time warehouse
employees , including shipping and receiving
employees, maintenance employees , mailroom
employees , and plant clericals at Respondent's
Chicago , Illinois, facility , excluding all office
clericals, salesmen , buyer-salesmen , guards, outside
truckdrivers , temporary employees, and all
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. On August 12, 1966 , and at all times thereafter,
the above -named labor organization has been and 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 September 30, and at
all times thereafter , to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of 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) and ( 1) of the
Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Relations Board hereby orders that the Respondent,
Follett Corporation ; Wilcox & Follett Company,
Follett College Book Company , and Follett Library
Book Company , Operating Divisions of Follett
Corporation ; Follett Publishing Company; and
American Publishers Corporation , Chicago, Illinois,
their officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail,
Wholesale and Department Store Union (RWDSU),
AFL-CIO , as the exclusive and duly certified
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part -time warehouse
employees , including shipping and receiving
employees , maintenance employees , mailroom
employees , and plant clericals at Respondent's
Chicago, Illinois, facility, excluding all office
clericals, salesmen , buyer-salesmen , guards,
outside truckdrivers , temporary employees, and
all supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed to them by 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 as
found above and, if an understanding is reached,
t;mbody such understanding in a signed agreement.
(b) Post at Respondent 's Chicago , Illinois,
facilities , copies of the attached notice marked
"Appendix ."7 Copies of said notice , to be furnished
by the Regional Director for Region 13, after being
duly signed by Respondent 's representative, shall,
be posted by it 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
Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(c) Notify said Regional Director for Region 13, in
writing, within 10 days from the date of this Decision
and Order, what steps have been taken to comply
herewith.
r In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
FOLLETT CORPORATION
WE WILL bargain collectively, upon request,
with Retail, Wholesale and Department Store
Union (RWDSU), AFL-CIO, as the exclusive
bargaining representative of all employees in
the bargaining unit described below, concerning
rates of pay, wages, hours of employment, and
other conditions of employment, and, if an
understanding is reached, embody the 'same in a
signed agreement. The bargaining unit consists
of:
All full-time and regular part-time
warehouse employees, including shipping
and receiving- employees, maintenance
employees, mailroom employees, and plant
clericals at Respondent's Chicago, Illinois,
facility, excluding all office clericals,
salesmen , buyer-salesmen , guards, outside
truckdrivers, temporary employees, and all
supervisors as defined in the Act.
WE WILL NOT refuse to bargain collectively as
aforesaid, nor will we, in any like or related
manner , interfere with, restrain , or coerce our
employees in the exercise of the right to bargain
collectively through said Union.
Dated By
381
FOLLETT CORPORATION;
WILCOX& FOLLETT
COMPANY, FOLLETT
COLLEGE BOOK
COMPANY, AND FOLLETT
LIBRARY BOOK COMPANY,
OPERATING DIVISIONS OF
FOLLETT PUBLISHING
COMPANY; AND
AMERICAN PUBLISHERS
CORPORATION
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting , and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board' s Regional
Office, 881 U.S. Courthouse and Federal Office
Building , 219 S. Dearborn Street, Chicago, Illinois
60604, Telephone 828-7570.