California Teamsters Public, Professional And Medical Employees Local Union 911, International Brotherhood Of Teamster, Chauffeurs, Ware-Housemen And Helpers Of America

980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California Teamsters Public , Professional and Medi- cal Employees Local Union 911, International Brotherhood of -Teamsters, Chauffeurs, Ware- housemen and Helpers of America and General Felt Industries , Inc. Case 21-CP-681 28 June 1985 DECISION AND ORDER BY CHAIRMAN•DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the Employer, - General, Felt Industries, Inc. on 7 August 1984, the General Counsel of the National Labor Relations 'Board issued a complaint and notice of hearing 31 August 1984 against the Respondent Union, alleging that it has violated Section 8(b)(7)(B) of the National Labor Relations Act. The complaint alleges that on 15 September 1982, pursuant to a petition filed with the Board, an election by secret ballot was conducted by the Board at which time United Rubber, Cork, Linole- um and Plastic Workers of America, AFL-CIO (the' Rubber Workers Union), received a majority of the valid votes counted plus challenged ballots. On 28 March' 1984,_ pursuant to Section 9 of the Act, the Board duly certified the Rubber Workers Union as the exclusive collective-bargaining repre-r- sentative ' of the Company's employees , in a unit found appropriate.' - • The complaint further alleges that about 26• July 1984 the Respondent, acting through Business Rep- resentative Patrick Chaplin, by letter, -threatened the Employer with picketing at the Employer's fa- cility cility and demanded that the Employer' recognize' and bargain with it as the collective-bargaining rep- resentative of the unit employees.-Further, about l- and 2 August 1984, the Respondent picketed at the Employer's facility. The complaint alleges that the Respondent engaged in said, acts and conduct - in order to force or require the Employer to recog- nize and bargain with it as the' representative- of certain of the Employer's employees in the' unit and'to force or require employees in 'the unit 'to accept or select the Respondent_as-their-collective = bargaining representative. These activities were - carried out'within `12' months of a valid election. On -11 September 1984 the Respondent filed its answer: On 5 November 1984 the, Respondent; filed an' amende'd' answer to the complaint.' The answers admit in part and deny in part the allegations 'in the complaint. As r an affirmative defense; the, Respond- ent asserts that certification of the United :Rubber Workers was issued contrary to law because the Employer engaged' in conduct affecting the results of"the election and therefore that certification is in- valid. On 19 -November- 1984 the General Counsel filed a Motion for Summary Judgment. On 23 Novem- 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 Respondent filed a'response. Ruling on Motion for Summary Judgment • The General Counsel submits that the Respond- ent does not rely on any newly discovered and pre- viously unavailable evidence and that the Board and the courts have consistently held that issues which were raised or could have been raised in a prior representation case cannot be relitigated in a subsequent unfair labor practice proceeding. The General. Counsel further submits that the affirma- tive defense which the Respondent raises in its answer is a reiteration of issues which were reject- ed by'the Board in General- Felt Industries, 269 NLRB- 474 (1984). In its decision in that case the Board affirmed the administrative law judge's deci- sion that employee Zoe James had been terminated because of her prior employment by the respond- ent, in violation of Section 8(a)(3) of the Act. In is- suing its Certification of Representative the Board held that no employee was aware of the reasons for -James' termination prior to the election- and therefore her: termination did not affect the results of the election.2- - The •General- Counsel contends that • the pleadings raise no material issues 'of either fact or law and moves that the Board strike the Respondent's- de- fense as set-forth in its answer, that the Board find the unit described constitutes aunit appropriate for the 'purposes of collective bargaining within the meaning of. Section 9(b) of the Act, and that the Rubber Workers Union is the duly certified bar- gaining representative of employees in said unit. The General Counsel also moves that the material allegations of the complaint'which the Respondent has -admitted 'iri its-answer be deemed to be true and that the., Board find that the, Respondent violat- ed, Section 8(b)(7)(B) of the Act without taking evi- dence in support of the allegations in the complaint and that. the Board issue . an appropriate remedial Order. " - ' In its response to the 'Notice .to Show Cause,, the Respondent continues -to challenge the Certification of Representative.`- -Aside `from those arguments i Official notice is taken of the "record" in the representation proceed- ing as defined in the Board's Rules and Regulations, Secs 102 68 and 102 69(g) as amended, Frontier Hotel, 265 NLRB 343 (1982) • -2 Her termination had been raised by the Respondent as an objection to the election 275 NLRB No. 136 TEAMSTERS LOCAL 911 (GENERAL FELT) which . have already been rejected by the Board, the Respondent contends that after the.. Board issued its decision in the aforementioned case the Respondent became aware _ for the first time that employees of General Felt Industries, Inc. had known of James' termination and the reason there- for prior to the election. The Respondent asserts that the . employees withheld that information be- cause they were fearful of retaliation by the Em- ployer. _ - At the hearing there was no evidence that James' termination was, known to employees prior to the election. Indeed, all testimony in that regard estab- lished that the opposite was true. No " evidence has been presented that the Re- spondent attempted to secure the "newly discov- ered" evidence prior to or. even during the hearing and was unsuccessful in doing so. In order for evi- dence to be deemed "newly discovered and previ- ously unavailable," the Respondent must have made some effort to obtain the evidence at the time of the hearing.3 'Clearly, more is necessary than the failure of witnesses to come forward voluntarily.4 In his "Declaration" in support of the 'response to the General Counsel's motion, Chaplin merely states that he "did not learn that any employee of the Employer was aware that Zoe James was ter- minated until after the Board issued its Decision I believe that the employees did not come for- ward prior to that time because they were afraid of being terminated by the Employer." (Emphasis added.) The statements of employees appended to the response do not reveal that they had been asked and refused to come forward earlier or even that they would. not have come forward if asked to do so. Moreover, the Respondent neither asserts nor es- tablishes that it was aware of this alleged newly discovered evidence at the time that it engaged in the - activity at issue here. Chaplin's statement as- serts that after he became aware of the employees' prior knowledge of James' termination he obtained written statements from those employees. Those statements are dated 20 November 1984. Chaplin's statement is dated 6 December 1984. -The threat and picketing in this case occurred in late July and early August 1984. The Respondent may not justi- 3 See ABC Trans-National Transport; -247 NLRB 240 fn. 1:(1980), Reppel Steel & Supply Co, 239 NLRB 358 In 1 (1978) 4 In K-C Machine & Tool Co, 268 NLRB 1474 fn 3 (1984), the Board denied the charging party's motion to reopen the record based on the un- availability of a witness during the hearing Although the charging party demonstrated that it was unable to locate the witness because she moved I week prior to the, hearing and left no forwarding address,, the Board held that the charging party had failed to establish that the witness was unavailable within the meaning of Sec 10248(d)(1) of the Board's Rules and Regulations • 981 fy its conduct based on information which was not known to it at the time of its actions. We find therefore that there is no newly discov- ered and previously unavailable evidence on which the Respondent can rely. It is well settled that in the absence of newly discovered and previously unavailable evidence or special circumstances a re- spondent is not entitled to relitigate issues which were or could have been litigated in a prior repre- sentation proceeding. Pittsburgh Glass Co. v. NLRB, 313 U.S. 196, 162 (1941); Frontier Hotel, 242 NLRB 590 (1979). The Respondent does not allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue that is properly litigable in this unfair labor practice pro- ceeding: Accordingly,, we grant the Motion for Summary Judgment. _ On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Employer, 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. During a 12-month period ,prior to the issuance of the complaint, the Employ- er sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of California. We find that the Company is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification . • On 15 September 1982 pursuant to a petition filed with the Board,, an election by secret ballot was conducted by the Board at which time United Rubber, Cork, Linoleum, and Plastic Workers of America, AFL-CIO, received a majority of the valid votes counted plus,challenged ballots. On 28 March 1984 the Board duly, certified the Rubber Workers Union as the exclusive collective- bargaining representative of the employees in the following appropriate 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, 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California;-excluding all office clerical employ- ees, professional employees, guards and super- visors as defined in the Act. B. Threat to Picket and Picketing About 26 July '1984 the Respondent threatened the Employer with-picketing at the Employer's fa- cility and demanded that the Employer"recognize or bargain with it as' the exclusive collective-bar- gaining representative of the unit. About 1 and 2 August 1984 the Respondent picketed at the Em- ployer's facility. The Respondent engaged in the activity de- scribed above'in order to force or require the 'Em- ployer to recognize or bargain with it as the repre- sentative of the Employer's employees in the unit and to force or require the employees in the unit to accept the Respondent as their collective-bargain- ing representative. The Respondent engaged in this activity at a time when a valid election under Section 9(c) -of the Act involving employees in the unit had been conducted within the previous 12 months.5 We find that by its acts and conduct the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(b)(7)(B) of the Act. - CONCLUSIONS OF LAW By threatening to picket and picketing as- de- scribed above, the Respondent has engaged- in unfair labor practices affecting commerce within the meaning of Section 8(b)(7)(B) and Section-2(6) and and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(b)(7)(B) of the Act, we shall order it to cease and desist therefrom and to take certain af- firmative action designed to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, California Teamsters Public, Pro- fessional and Medical Employees Local Union 911, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Pico Rivera and Industry, California, its officers, agents, and representatives , shall - 1. Cease and desist from picketing, or causing to be picketed, or threatening to,picket or cause to be picketed General Felt Industries, Inc. at a time .e Although the election was conducted 15 September 1982,-the Board did not certify the results until 18 March 1984 The picketing therefore occurred within 12 months of the certification - when the Respondent is not currently certified- as the representative of the Employer's employees, where an object thereof is to force or require Gen- eral Felt Industries, Inc. to -recognize or bargain with the Respondent as the representative of Gen- eral Felt Industries, Inc.'s employees, or to force or require employees of General Felt Industries, Inc. to -accept or select the Respondent as their collec- tive-bargaining representative where within the preceding 12 months a valid election under Section 9(c) of the. Act has been conducted. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its business offices and meeting halls in Pico Rivera and Industry, California, copies of the attached notice marked "Appendix. "s Copies of the notice, on, forms provided by the Regional Director for Region 21, after being signed by the Respondent's authorized representative, shall be signed and posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in; conspicuous places including all places where notices to members 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. (b) Sign and return to the Regional Director suf- ficient copies of the notice for posting by General Felt Industries, Inc.,. if willing, at all places where notices to employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the, date of this Order what steps theRespondent has taken to comply. 8 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 " APPENDIX NOTICE To MEMBERS 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 picket, or cause to be picketed, or threaten to picket or cause to be picketed, General Felt Industries, Inc. at a time- when we are not cur- rently certified as the representative of that Em- ployer's employees, where an object is to force or require General Felt Industries, Inc. to recognize TEAMSTERS LOCAL 911 (GENERAL FELT) 983 or bargain with us as the representative of its em- ployees or to force or require its employees to accept or select us as -their collective-bargaining representative, where within the preceeding 12 months a valid election under Section 9(c). of the Act has been conducted. CALIFORNIA TEAMSTERS PUBLIC PROFESSIONAL AND MEDICAL EM- PLOYEES LOCAL UNION 911, INTER- NATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA