Follett Corp.

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.