Follett Corporation v. NLRB

• Decision Date: 10 June 1968
• Docket Number: No. 16221.,16221.
• Citation: 397 F.2d 91
• Parties: FOLLETT CORPORATION; Wilcox & Follett Company, Follett College Book Company, and Follett Library Book Company, Operating Divisions of Follett Corporation; Follett Publishing Company; and American Publishing Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

397 F.2d 91 (1968)

FOLLETT CORPORATION; Wilcox & Follett Company, Follett College Book Company, and Follett Library Book Company, Operating Divisions of Follett Corporation; Follett Publishing Company; and American Publishing Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16221.

United States Court of Appeals Seventh Circuit.

June 10, 1968.

Robert C. Claus, James S. Petrie, John P. Jacoby, Chicago, Ill., Vedder, Price, Kaufman & Kammholz, Chicago, Ill., of counsel, for petitioners.

Marcel Mallet-Prevost, Asst. Gen. Counsel, George B. Driesen, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Fred R. Kimmel, Atty., N. L. R. B., for respondent.

Before CASTLE, Chief Judge, and SWYGERT and CUMMINGS, Circuit Judges.

SWYGERT, Circuit Judge.

Follett Corporation et al¹ has petitioned for a review of an order of the National Labor Relations Board.² A cross-petition has been filed by the Board to enforce its order.

Following a Board conducted election among Follett's employees, the Board certified the Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive bargaining representative of the employees. Despite the certification, Follett twice refused to bargain with the union, concededly in order to obtain a judicial review of the Board's certification decision. Upon its refusal to bargain, Follett was charged with violating section 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) and (1). The Board granted the General Counsel's motion for summary judgment and entered an order finding Follett guilty of the charge and ordering the company, upon request, to bargain with the union. The principal issue in this review is whether the Board abused its discretion in reversing the Regional Director's decision to set aside the election.

Consequent to the union's petition under section 9(c) of the Act and a direction by the Regional Director, an election among Follett's employees was conducted on March 16, 1966. During the election campaign, Follett distributed sixteen leaflets and letters to its employees. Two letters, dated March 10 and 11, 1966, compared wage increases and benefits contained in union contracts with other employers with those Follett had granted its employees.

Apparently in response to the company letters, the union distributed a handbill on March 14, 1966, captioned "A Special Message from Fuller Brush Co. Employees * * * (members of RWDSU)." The handbill stated that the Fuller Brush employees had voted for the union in March 1965 and in November of that year the employees negotiated their first contract "with backpay." The handbill then enumerated sixteen items "received" in the contract. One of the sixteen points mentioned in the handbill read: "the minimum rate for packers in our warehouse is $2.42 per hour + 10% annual bonus. How do your rates compare with these?" (Emphasis added.)

On March 15, 1966, the union distributed a second handbill captioned "Message from the Quaker Oats Company Employees." The handbill stated that the Quaker Oats employees chose the union in December 1964 and in May 1965 they completed their first contract with the company and "obtained the following benefits with backpay." The handbill then enumerated eighteen benefits. One of the eighteen points mentioned in this handbill read: "Time and one-half for all hours worked over 8 hours. Time and one-half for all Saturdays as such. Double time for Sundays; triple time for holidays." (Emphasis added.)

At the election, a majority of the ballots were cast for the union. Thereafter, Follett filed objections to the conduct of the election and requested that it be set aside because of misrepresentations, in the union handbills, to which the company argued it had insufficient time to respond.

In his decision setting aside the election, the Regional Director found that the "two leaflets contained misrepresentations involving substantial departure from the truth, at a time which prevented the employer from making an effective reply, and this could reasonably be expected to have had a significant impact on the election." As to the Fuller Brush handbill, the Regional Director noted that it quoted a minimum rate of $2.42 per hour, but that this rate under the Fuller Brush contract did not take effect until May 1, 1966 (the representation having been made on March 14). In addition, employees with less than eighteen months seniority were ineligible to receive $2.42 which in effect was a maximum rather than a minimum rate (starting employees received $2.00 per hour). The Regional Director concluded, "The implication is clear that Follett employees could obtain similar rates to those stated in the handbill if they were represented by the Petitioner union." As to the Quaker Oats handbill, the Regional Director found that the statement that the company's contract with the union provided for triple time for holidays was inaccurate in that the Quaker Oats' contract in fact provided double time and a half for holidays. Although the Regional Director observed that the misstatement in the Quaker Oats' handbill was "less important," he concluded that both representations constituted substantial departures from the truth, which required the election to be set aside.

The Board, at the request of the union, reviewed the Regional Director's decision and reversed it. In the Board's view, the union's quotation of the $2.42 rate was an insubstantial misstatement in that the difference between the rate in effect when the Fuller Brush handbill was distributed and the quoted rate was only 7 cents. Moreover, Follett's employees (with one exception) were only receiving from $1.45 to $1.80 an hour. The Board observed that the $2.42 rate would likely be in effect at Fuller Brush if and when the union initiated negotiations with Follett. Rejecting Follett's further contention that the misrepresentation was substantial because only employees with eighteen months or more seniority could earn $2.42, the Board observed that the voters could "reasonably construe the stated rate as applicable...