General Felt Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 968 (N.L.R.B. 1985)

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 andd fi ed th gn in ,e eing 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.