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-
cilityt 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
