United States Rubber Co.

National Labor Relations Board - Board Decisions

Dec 3, 1965

155 N.L.R.B. 1298 (N.L.R.B. 1965)

1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.
United States Rubber Company and United Rubber, Cork, Lino-
leum and Plastic Workers of America, AFL-CIO. Case No.
23-CA-.018. December 3,1965
DECISION AND ORDER
On October 1.4, 1.965, Trial Examiner Thomas N. Kessel. issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National. Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exarn-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagori a] .
The Board has reviewed the rulings of the Trial Examiner including
his granting of the General Counsel's motion for judgment on the
pleadings, and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION ON MOTION FOR JUDGMENT
ON THE PLEADINGS
STATEMENT OF THE CASE
Upon a charge filed April 5, 1965, by United States Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, herein called the Union, against United States
Rubber Company, herein called the Respondent, the General Counsel of the National
Labor Relations Board, herein called the Board, by the Regional Director for
Region 23, issued his complaint dated April 16, 1965, and amendments thereto
dated April 28 and May 7, 1965. As amended, the complaint alleges the Union's
January 15, 1965, certification by the Regional Director as the exclusive collective-
bargaining representative of an appropriate unit of the Respondent's employees at
its Laredo, Texas, proving grounds, following a secret-ballot election won by the
Union, the Union's subsequent request for collective bargaining on behalf of these
employees and the Respondent's refusal in violation of Section 8(a)(5) and (1)
of the Act to bargain with the Union pursuant to its request.
The Respondent's answer to the amended complaint concedes that an election
was held in which the Union secured a majority of the votes cast, admits that the
Union subsequently received its exclusive representative certificate and thereafter
155 NLRB No. 103.
UNITED STATES RUBBER COMPANY 129
requested bargaining which was refused by the Respondent, but defends its refusal
on the ground that the unit employees had not "legally or properly designated or
selected the Union as their representative " and that the certificate issued to the
Union is therefore invalid. - The answer acknowledges that the Respondent had
filed timely objections to conduct affecting the results of the foregoing election, that
the Regional Director had overruled these objections, and that the Respondent had
filed exceptions to the Regional Director's action and requested review by the Board
which was denied. The answer expressly attacks the Regional Director's and the
Board's action as "improper , invalid, arbitrary , capricious and illegal."
Upon the filing of the foregoing answer, the General Counsel, on July 1, 1965,
filed a motion for judgment on the pleadings. That motion was referred to Trial
Examiner Thomas N. Kessel for ruling. Essentially, the General Counsel contends
in his arguments supporting the motion that the answer fails to raise a triable issue
of fact by its attack on the validity of the Union's exclusive bargaining certificate,
and that the answer's admission of the complaint allegations , except as to the valid-
ity of the certificate and the Union's representative status flowing from that certificate,
establish the statutory violation pleaded in the complaint without the necessity of
a hearing for the taking of evidence.
On July 7, 1965, the Respondent filed an answer to the General Counsel's motion.
A brief in support of such answer was filed on July 15. In sum, that answer, with
appended documents, reiterates the assertions in the answer to the complaint con-
cerning the invalidity of the Union's certificate. Additionally, the Respondent con-
tends that the Regional Director had improperly overruled the objections to the
representation election because his investigation had been ex parte without a formal
hearing, and that the teletype notice received in March 1965 from the Board's Asso-
ciate Executive Secretary advising that "by direction of the Board" the Respondent's
request for review of the Regional Director's action had been denied was unauthor-
ized and improper. In any event, if the teletype constituted a proper notice, the
Board's action was assertedly erroneous. On July 8, 1965, the Respondent filed an
amendment to its July 7 answer to the General Counsel's motion stating that the
Respondent "is prepared to adduce additional and further pertinent and material
evidence in support of its objections" to the representation election and in support
of its exceptions to- the Regional Director's decision overruling the objections. The
Respondent further asserted it had subpenaed new witnesses to testify at the com-
plaint hearing in the instant case scheduled for July 13, 1965, and that these wit-
nesses would establish "the misrepresentation contained in the election-eve leaflet
distributed by the union and the serious consequences of such misrepresentations."
As will be shown hereinafter , the misrepresentation here adverted to is the same as
that constituting a basis for the Respondent's objections to conduct affecting the
representation election which the Regional Director and the Board have overruled.
On July 14, 1965, I issued and caused to be served on the Respondent an order
requiring it to show cause before me in writing why the General Counsel's motion
should not be granted. The order noted that the answer appeared only to attack
the validity of the Union's certificate and thus constituted an attempt to relitigate
matters already decided by the Board in the representation proceeding. Because,
in this circumstance , only evidence newly discovered or not available at the time
of those proceedings is relevant to a defense based on the claimed invalidity of the
Union's certificate (Pittsburg Plate Glass Company v. N.L.R.B., 313 U.S. 146) the
Respondent was directed to submit to me a summary indicating what newly discov-
ered or previously-unavailable evidence it would offer as proof at a hearing in the
instant case together with supporting argument.
On August 12, 1965, the Respondent filed its response to the foregoing order to
show cause . Concerning the directive in the order to summarize newly discovered
or previously unavailable evidence, the response declared that the testimony of a
witness, Frank Harper, who had refused to furnish an affidavit at the Respondent's
request for submission to the Regional Director in his investigation of the objections
filed to the representation election, had been subpenaed by the Respondent to appear
as a witness at the hearing in the instant case scheduled for July 13, 1965. The
response further declared that the Respondent had subpenaed another witness to
appear at the hearing whom it intended to examine as an adverse witness under the
Federal Rules of Civil Procedure. Said witness, Y. L. Dominguez, is identified by
the Regional, Director in his Supplemental Decision overruling the Respondent's
objections as one of the Union's representatives in charge of the organizational
campaign among the Respondent 's employees , and there are references to him in
the Supplemental Decision concerning his participation in the conduct upon which
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1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the objections were based. The response further asserted that the Regional Direc-
tor's Supplemental Decision contained numerous factual errors which the Respondent
had noted in its exceptions to the Board and request for review , and that the testi-
mony of the aforementioned Frank Harper would serve to correct these errors.
Ruling on the Motion
For the purpose of ruling on the General Counsel's motion for judgment on the
pleadings and for all other purposes in the case I have noticed the Board 's official
records in Case No. 23-RC-2307.
Basically the Respondent 's defense to the complaint raises the identical question
previously involved in certain of its objections filed to the representation election in
Case No. 23-RC-2307, namely, those objections grounded upon claimed misrepre-
sentation in the letter distributed by the Union to the Respondent's employees just
before the holding of the election in that case. There is no doubt that the issue now
sought to be litigated is the same as that considered by the Regional Director in his
investigation of the Respondent's objections, in his Supplemental Decision over-
ruling these objections as being without merit, and also considered by the Board
on exceptions to the Regional Director's Supplemental Decision filed by the Respond-
ent together with its request for review. This question having been decided by the
Regional Director and the Board in the representation proceeding, it may not be
relitigated in the instant unfair labor practice proceeding alleging the Respondent's
unlawful refusal to honor the certificate issued by the Board to the Union, unless,
as stated by the Supreme Court in Pittsburgh Plate Glass Company, supra, and the
Board in Pepsi-Cola Bottlers of Miami, Inc., 153 NLRB 1342, the Respondent can
present newly discovered or previously unavailable evidence to attack the validity
of the certificate. Accordingly, I turn to the Respondent 's summary in its response
to the order to show cause to determine whether the evidence it there asserts would
be proffered at a hearing qualifies as newly discovered or previously unavailable.
As more elaborately related in the Regional Director's Supplemental Decision,
the Respondent during the election campaign had distributed to its employees a
letter comparing the wage rates and fringe benefits of its test drivers wits those of
employees employed by another employer, Automotive Proving Grounds, Inc., at
Pecos, Texas. 1 The Union replied with its letter to employees distributed immedi-
ately before the election with no opportunity to the Respondent to submit a counter-
argument. The Union's letter, signed by its representative, Y. L. Dominguez,
included the following:
One more thing that the Company failed to mention is this; that we work six
days and the average miles that we drive per day, week or month is only 350
miles. You average over 500 miles. In other words, you are doing six-day
work in only five and getting paid for only five.
The Respondent filed objections after the election which, as noted, was won by the
Union, claiming that the Union's letter in t