General Felt Industries, Inc.

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Felt Industries, Inc. and United Rubber, were consolidated for a hearing, and on" 28 March Cork, Linoleum and Plastic Workers of Amer- 1984 the Board affirmed the administrative law ica, AFL-CIO. Case 21-CA-23515 judge's decision that the Company's discharge of 28 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the Union, • United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing against-the Company, the Re- spondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations. Act. The complaint alleges that on 28 March 1984, following a Board election in Cases 21-RC-17048 and 21-RD-1888, the Union was certified as the exclusive collective-bargaining representative of the Company's employees in the unit found appro- priate.) The complaint further alleges that since about 4 September 1984 the Company has refused to bargain with the Union. On 28 November 1984 the Company filed its answer admitting in part and denying in part the allegations in the complaint. On 18 December 1984 the General Counsel filed a Motion for Summary Judgment. On 20 Decem- ber 1984 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. Ruling on Motion for Summary Judgment The Company's answer admits the procedural and jurisdictional allegations, the status of the Union as a labor organization, and the appropriate- ness of the unit, but disputes the Certification of Representative, the Union's postcertification re- quest for bargaining, and the Company's refusal to bargain in good faith. The General Counsel argues that the Company is seeking to relitigate those issues rejected by the Board in the representation proceeding.' We agree with the General Counsel. The record shows that an election was held 15 September 1982 and, of 103 eligible voters, 60 voted for the Union and 28 voted for the Team- sters. The Teamsters had been the incumbent union. Thereafter, the Teamsters filed objections to the conduct affecting the election and 8(a)(1), (2), and (3) charges against the Company.2 The cases r Official notice is taken of the "record " in the representation proceed- Zoe James violated Section 8(a)(3) and (1) of the Act. The Board also found that the Company's conduct was too minimal to affect the election re- sults because the unfair labor practice involved only one employee and there was no evidence that any other employee had knowledge of the conduct prior to the election. Accordingly, the Board certi- fied the Union.3 On 1 and 2 August 1984 the Teamsters picketed the Company's facility in an attempt to force the Company to bargain with it as the bargaining rep- resentative of the employees in the appropriate unit. The Company filed a charge alleging that the Teamsters violated Section 8(b)(7)(B) of the Act and a complaint and notice of hearing was issued 31 August 1984.4 By letter dated 28 August .1984 the Union re- quested that the Company bargain with it. By letter dated 4 September 1984 the Company in- formed the Union that it was refusing to recognize and bargain "until the validity of the Teamsters picketing and the underlying certification are re- solved." The General Counsel argues in her Motion for Summary Judgment that the Company's answer fails to present any newly discovered or previously unavailable evidence which would warrant a hear- ing. The General Counsel claims that the Company has failed to bargain with the Union in good faith and moves that the Board find that the Company's refusal to bargain violates Section 8(a)(5) and (1) of the Act without taking oral testimony and issue an appropriate remedial order. In its response to the Notice to Show Cause, the Company justifies its refusal to bargain by claiming that there is a reasonable possibility that the Team- sters will prevail in General Felt II and request that the Board consider the evidence relied on by the Teamsters in that case in ordering a hearing in the instant case. The Teamsters argued in General Felt II that it learned after the Board issued General Felt I that employees did not vote for the Teamsters because .they feared possible discharge and that employees withheld this information because they feared em- ployer retaliation. We found in General Felt II that the Teamsters failed to show that the evidence was newly discovered and previously unavailable. For the reasons set forth in General Felt II, we reject the Company's contentions here. Board's Rules and Re ulations Sec 102 68 and d fi ed th g n in , e e ing as 102 69(g) as amended , Frontier Hotel, 265 NLRB 343 (1982) ' 269 NLRB 474 (1984) (General Felt 1). 2 The 8(a)(2) charge was subsequently withdrawn 4 275 NLRB 980 (1985) (General Felt II) 275 NLRB No. 134 - GENERAL FELT INDUSTRIES The • Company also argues that it. has been in- formed by several employees that they would have voted for the Teamsters had they not been afraid of possible discharge and that their fear was based on James' discharge. The Company contends that this evidence is newly discovered and previously unavailable. We reject this contention for several reasons. - In order for evidence to be considered newly discovered and previously. unavailable the Re- spondent must have made some effort to obtain the evidence-at the time of the hearing.5 It is necessary that the Company do more than show the failure of witnesses to come forward voluntarily.6 Here, the. Company has failed to show that the evidence was unavailable at the time of the hearing7 or oth- erwise demonstrated that the employee statements consitute newly discovered and previously unavail- able evidence.8 We therefore And that there is no newly discov- ered and previously unavailable evidence on which the Company can rely. It is well settled that in the absence of newly discovered and previously un- available evidence or special circumstances, a re- spondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding.9 All issues raised by the Company were or -could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege -any' special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company 6 See General Felt If, supra and cases cited therein 6 Id Nor has the Company shown that the statements it relies on were statements other than the statements relied on by the Teamsters supra In this connection we further note that the Respondent has not presented affidavits to support its assertion in its response to the Notice to Show Cause 8 The Company also relies on a charge in Case 21-CB-8375 filed in 1983 by the Union - against the Teamsters to show that the Teamsters con- tinued to receive payments under the checkoff provisions of the old agreement between the Company and the Teamsters The Company fur- ther asserts that the charge was dismissed because no illegal conduct was involved in the checkoff The Company contends that this evidence will demonstrate that a majority of the bargaining unit employees continued to designate the Teamsters as their bargaining representative as late as 1983 Even accepting the Company's assertions and contentions, we find no merit in the Company's position Thus, the Teamsters continued re- ceipt of dues payments under the old agreement between the Company and the Teamsters after the election in Cases 21-RC-17048 and 21-RD- 1888 does not alter the fact that a majonty of the unit employees desig- nated and selected the Union as their bargaining representative in the above-described Board election Nor do such dues payments alter the Board's finding that no objectionable conduct occurred in the election or warrant revocation of the Certification of Representative 8 See Pittsburgh G l a s s C o . v NLRB, 313 U S 146, 162 (1941), Secs 102 67(f) and 102 69(c) of the Board's Rules and Regulations 969 has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the- Board makes the, fol- lowing - . FINDINGS OF FACT I. JURISDICTION The Company, a Delaware corporation with an office and place of business in Pico Rivera, Califor- nia,, is engaged in the manufacture and nonretail sale of carpet underlay, and annually sells and ships goods and products valued in excess of $50,000 di- rectly to customers- located outside the State of California. We find that; the Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICE A. The Certification Following the election held 15 September 1982, the Union was certified on 28 March 1984 as the collective-bargaining representative of the employ- ees in the following unit: ' All rubber, operation production employees, rebond polyurethane operation production em- ployees and maintenance and service operation employees employed by the Employer at its facility located at 8320 Rex Road , Pico Rivera, California; excluding all office clerical employ- ees, professional employees, guards and super- visors as defined in the Act. ' The Union continues to be, the exclusive repre- sentative under Section 9(a) of the Act. B. Refusal to Bargain Since about 28 August 1984 the Union has re- quested the Company to bargain, and since about 4 September 1984 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after 4 September 1984 to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD REMEDY Having found that the Respondent- has violated Section 8(a)(5) and (1) of the Act, we shall order it -to cease and desist, to bargain on request with, the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To-ensure that the employees are accorded the services of their selected bargaining agent for the period-provided by law, we shall construe the ini- tial period of the certification as beginning the date- the • Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar- Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co.,- 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, General Felt Industries, Inc., Pico Rivera, California, its officers, agents, successors, and assigns, shall 1. ,Cease and desist from (a) Refusing to bargain with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. as the exclusive bargaining representa- tive of the employees in the bargaining unit. (b) - In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. , . , - 2. Take the following--affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All rubber operation - production employees, rebond polyurethane operation production em- ployees' and maintenance and service operation employees employed by the Employer at its facility located at 8320 Rex Road, Pico Rivera, California; excluding all office clerical employ- ees, professional employees, guards and super- visors as defined in 'the Act. (b) Post at its facility in Pico Rivera, California, copies:,.of the attached notice marked "Appen- dix."10 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the' Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where-notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in -writing within 20 days from the 'date of this Order what steps the Respondent has taken to comply. 10 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " I APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE - NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce. you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for, our employees in the bargaining unit: All rubber operation production employees, rebond polyurethane operation production em- ployees,and maintenance and service operation employees employed by the Employer at its facility located at 8320 Rex Road, Pico Rivera, California; excluding all office clerical employ- ees, professional employees, guards and super- visors as defined in the Act. - GENERAL FELT INDUSTRIES, INC.