Labor Ready, Inc.

National Labor Relations Board - Board Decisions

Mar 23, 2000

330 N.L.R.B. 1024 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1024
Labor Ready, Inc. and Tri-State Building and Con-
struction Trades Council, National Building and
Construction Trades Department, AFL–CIO.
Case 9–CA–34950
March 23, 2000
ORDER DENYING MOTION
BY MEMBERS FOX, HURTGEN, AND BRAME
On March 26, 1999, the National Labor Relations
Board issued a Decision and Order1 in this case finding
that the Respondent violated the Act by, inter alia, refus-
ing to continue to refer Donald Huff for employment and
by attempting to prevent him from circulating a petition.
On April 26, 1999, the Respondent filed a motion for
reconsideration, for reopening the record and for rehear-
ing, or, in the alternative, for a stay. The General Coun-
sel filed a memorandum in opposition to the Respon-
dent’s motion.
The Board has delegated its authority in this proceed-
ing to the same three-member panel that issued the un-
derlying Decision and Order.
The Respondent contends that newly discovered union
logs establish that Huff knew that the Union would be
unable to organize the Respondent but continued to pur-
port to do so anyway in order to induce the Respondent
to commit unfair labor practices, to disrupt its business,
and to force the Respondent to cease doing construction
work.2 The Respondent maintains that Huff was there-
fore not a bona fide applicant and was not entitled to the
protection of the Act. The Respondent further argues
that Huff lied at the instant hearing about his knowledge
of picketing planned at one of the jobsites to which the
Respondent referred applicants. Based on Huff’s un-
truthful testimony, the Respondent argues that the
judge’s credibility resolutions should be disregarded.
The Respondent further contends that it should be
permitted to introduce (in addition to evidence pertaining
to the logs) further evidence concerning what constitute
“work areas” at its facilities. The Respondent contends
that this latter evidence may be necessary to avoid con-
flicting decisions regarding the validity of its no-
solicitation policy. In the alternative, the Respondent
requests that the instant proceeding be stayed pending
resolution of Cases 9–CA–36223 and 9–CA–36395, in
which, the Respondent states, more evidence was ad-
duced on the “work area” issue than was adduced in the
instant proceeding.
The General Counsel argues that the Respondent’s
proffered evidence is not “newly discovered” within the
meaning of Section 102.48(d)(1) of the Board’s Rules
and Regulations. The General Counsel further contends
that the evidence would not, if admitted, show that Huff
was not a bona fide applicant. The General Counsel fur-
ther maintains that, to allow the Respondent to reopen
the record because of arguments based on evidence it
obtained in a later hearing, but which was available to it
at the time of the instant hearing, would set a dangerous
precedent.

1 327 NLRB 1055.
2 The Respondent subpoenaed the logs in a later proceeding involv-
ing the same parties, Cases 9–CA–36223 and 9–CA–36395, heard
January 14, 1999.
For the following reasons, we reject the Respondent’s
motion.
Section 102.48(d)(1) of the Board’s Rules and Regula-
tions permits a party in “extraordinary circumstances” to
move for “reconsideration, rehearing, or reopening of the
record after a Board decision or order” issues. Although
the Respondent seeks, in the alternative, all of these ac-
tions, the gist of its motion is that the Board should re-
open the record in this case to admit newly discovered
and previously unavailable evidence that was introduced
in a subsequent unfair labor practice proceeding. Ini-
tially, however, we note that because much of the evi-
dence the Respondent now seeks to introduce—union
logs—was in existence prior to the January 1998 hearing
in this case, it is not “previously unavailable.’’ Thus,
some of the logs date back to 1996. Nor does it appear
that these records are “newly discovered’’ within the
meaning of Section 102.48(d)(1). “Newly discovered
evidence is evidence that was in existence at the time of
the hearing, and of which the movant was excusably ig-
norant.” Seder Foods Corp., 286 NLRB 215, 216 (1987).
Here, however, Thomas Williams, the union president
who maintained the logs, was present at the instant hear-
ing, where he represented the Charging Party. The Re-
spondent could have subpoenaed the records from Wil-
liams at that time. See also Fitel/Lucent Technologies,
326 NLRB 46 (1998) (motion to introduce evidence as
newly discovered must show that movant acted with rea-
sonable diligence to uncover and introduce evidence).
Further, to the extent that some of the logs the Respon-
dent seeks to introduce cover periods after the instant
hearing, they do not fall within the category of newly
discovered evidence. Machinists Lodge 91 (United Tech-
nologies), 298 NLRB 325 (1990), enfd. 934 F.2d 1288
(2d Cir. 1991).
We also note that under Section 102.48(d)(1) and (2)
“evidence which has become available only since the
close of the hearing . . . shall be filed promptly on dis-
covery of such evidence.” Here, the Respondent sub-
poenaed the logs at a hearing on January 14, 1999, but
did not file its motion until April 26, 1999. We find that
the Respondent did not file its motion “promptly” in ac-
cord with Section 102.48(d)(2).
The Respondent’s contention as to the possibility of
conflicting decisions regarding its “work area” is specu-
lative and, in any event, such a possibility can be appro-
priately dealt with if and when it materializes. Further, it
would seem that the Respondent could have adduced
330 NLRB No. 151
LABOR READY, INC. 1025
more evidence on this point, had it chosen to so, at the
instant hearing.
Finally, insofar as the Respondent’s motion seeks to
reopen the record to attack the judge’s credibility deter-
minations, we deny it. See P&T Metals, Inc., 316 NLRB
1189 (1995).
IT IS HEREBY ORDERED that the Respondent’s motion
for reconsideration, for reopening the record and for re-
hearing, or, in the alternative, for a stay is denied.