Vintage Homes, Inc.

National Labor Relations Board - Board DecisionsFeb 6, 1979

240 N.L.R.B. 609 (N.L.R.B. 1979)

VINTAGE O()MES. INC. 609 Vintage llomes, Inc. and Local 19-I)istricl 65, Dis- tributise Workers of America-DWA, Petitioner. ('ase 26 R(' 5838 Fehbruar 6. 1979 ORDER REMAN[)IN(i PROCLEEING 1() REGilONA L DIR ECTOR B (AIRMln\N \I\( \\\N) I iHI RS Pi \1 I Itl \NI) Rt I 1)\1 I Pursuant to a Stipulation for ('ertification L'pon (Consent Election executed bh the parties and apl)- proved bh the Regional Director for Recion 26 of the National l abor Relations Board. an election bh\ se- cret ballot was conducted in the aboe-entitled pro- ceeding on October 19. 1978, under the direction and supervision of the Regional Director. pon conclu- sion of the election, a tals of ballots was furnished to the parties in accordance with the Board's Rules and Regulations, Series 8. as aended. The tall of ballots show s that there were approxl- mately 159 eligible voters, and that 147 ballots vcre cast, of which 109 were cast for, and 37 cast aailnst. the Petitioner. with I ballot having been challenged. On October 25, 1978. the Employer timels iled ob- jections to conduct affecting the results of the elec- tion. The Regional Director commenced an ilncSli- gation of the objections and thereafter. on Nosember 7. 1978. issued and served on the parties his report on objections. In his report. the Regional [)irector rec- ommended that the Emploser's obJections he oer- ruled. The Emploxer timelx filed exceptiotms to the Regional Director's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amiendled. tile Na- tional Labor Relations Board has deleatc its au- thoritv in this proceeding to a three-member panel. The Board has duls considered the matter and is of the opinion. for the reasons explained belo),. that the Employer's objections raise material issues of fact requiring further investigation at the regional lcel. Accordingl,. pursuant to Section 1()02.69 of the Board's Rules and Regulations and Statements of Procedure. Series 8 as Iamended. we are remandinl this proceeding to the Regional I)irector for a Nup- plemental report on objections based. at his discre- tion. on a further insestigation or a hearilie. As noted, the Emplo\,er in the instant case filed six objections to the election on \Ved nesdas. October 25. 1978. On the da, following. a Board agent assigilIed to the Agencx's Memnphis. l'ennessee. Regional ()f- fice telephoned lagamnan, the Emplo\er's counsel at his office in Atlanta, Georgia, and informed Ilaga- 240 NIRB No. 84 man that he was prepared to take the Employer's evidence during the week of October 30. 1978. Haga- mail replied that he was unavailable Monday of that week and that the mployer's chief witnesses. its gen- eral manager. production manager. and area sales naniager, wvere leaving Wednesday. November I. for ('olorado, where thev were expected to remain until the end of the folltowing week. Hagaman was in- formed by telephone later the same dav that the Re- cional D)irector had decided that the Emplo)er must present its evidence by noon. Friday. November 3 or its objections would e dismissed. Ilaaman avers in his brief in support of excep- tions that he protested to the Board agent tha it woulld be impossible for him to travel to the EmploN- er's NMlississippi facility and present evidence without his itnlesses-in-chief being present. but that his re- quest for an extension was denied. lagaman further claims that on Wednesday. November I. he spoke hb telephone with the Employer's general mnanager, af- ter which he prepared and mailed to the Board's Memphis Regional Office a letter which listed the nalles of witnesses who would submit evidence in support of the Employer's objections and outlined the substance of the testimony that would be given hv its nlanagelent personnel who were then in C'oo- rado. lhe Employer's counsel also submitted an affi- da it which stated his personal knowledge of facts in support of the objections. Tihe Regional Director's report on objections states that his office received onlI Hagaman's affida it. 'Ihe report indicates that the affidavit, which was re- ceived on the afternoon of Frida\. November 3 con- tained no e idence to support Emploser's Objections I. 2. or 3. but that it did contain some statements allecedl\ nmade bh, the Petitioner's representative. Scott. during the preelection conference. The affida- ,it alleges that Scott. in the presence of eligible vot- ers. threatened to call a strike and erect a picket line if the Elmplo er persisted in its refusal to allow two of Scott's colleagues to accompan\ him when he in- spected the polling place. The report also notes that lagaumal stated in his affidavit that he found the curtailns on the voting booths open and that the Em- plo)er's observer informed him that manN emplo)ees haad cast theii ballots without closing the curtains. llis affidait. the report declares. was the first in- dic.ationl the Region received that the Emploer had alnl" witnesses to present other than the three manag- ers h(io vwere then in (olorado. A Board aent tele- phoned Ilagarman's office on the afternoon of Fri- da'. Nosember 3. and learned that lagamian vwas en route to Atlanta hb automobile and could not be reached b telephone. ile Board agent then spoke to Paul. one of the partners of the las, firm with which VINTAGE HOMES. INC. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hagaman was associated, and advised him that the Region would give the [Employer until 10 a.m., Mon- day, November 6, to present the available witnesses. A telegram confirming this conversation was tranls- mitted to Hagaman on Friday, November 3. and Aas received on Monday. November 6. The Employer claims in its brief in support of ex- ceptions that Hlagaman received notice from Paul of the Board agent's call on the evening of Sunday. No- vember 5. Htagaman avers that he replied to te Re- gion telegraphically on November 6 that he was un- able to present his witnesses until after November 9 because he had prior commitments with other Re- gional Offices of the Board involving unfair labor practice charges and two elections. The report on ob- jections indicates that the Region had received no communication from the Employer's counsel through November 6. On November 7, 1978, the Regional Director rec- ommended that the Employer's objections to the election be overruled because lagaman's affidavit contained insufficient evidence to sustain Objections 4. 5 and 6 of the Employer's objections and "The Employer failed to cooperate in submission of an other evidence in support of Objections I. 2 3. 4. 5 and 6 . We decline to accept the recommendation of the Regional Director. On the basis of our review of the record it appears to us that the Employer's dela in presenting evidence in support of its objection arose not from bad faith or dilatoriness but legitimate rea- sons. Unlike the Regional [)irector, we do not feel that the Employer "failed to cooperate in subilission of any other evidence" in support of its objections. Accordingly, on these facts, we are of the opinion that the Regional Director's refusal to gran t the im- ployer an extension of time in which to present its evidence was an abuse of discretion. The Employer's objections raise issues which, in our view, require further investigation at the regional level. Because there has been no substantive investi- gation of these objections we remand this case to the Regional Director for a supplemental report on oh- jections which may, at his discretion, be based on further investigation or a hearing. This supplemental report on objections shall make recommendations concerning the substantive issues raised by the Em- ployer's objections.' 11 IS II RY ORI)I:RI ) that the above-entitled mat- ter be, and it hereby is, remanded to the Regional D)irector for Region 26 for a supplemental report on objections which may, at his discretion, be based on i further investigation or a hearing. Such supplemen- tal report on objections shall make recommendations concerning whether the issues raised b the Employ- er's objections warrant setting aside the election pre- viousls conducted herein. I I t R iiiR OR I)IRI ) that the tlearing Officer designated for the purpose of conducting any hearing pursuant to this Order shall prepare and cause to be served on the parties a report containing resolutions of credibility of witnesses, findings of fact, and rec- omimendations to the Board as to the disposition of said objections. Within 10 days from the date of is- suance of such report, either parts may file with the Board in Washington, D.C.. eight copies of excep- tions thereto. Immediatel upon the filing fo such exceptions the party filing the same shall serve a copy thereof on the other party and shall file a cop with the Regional D)irector. If no exceptions are filed thereto, the Board will adopt the recommendations of the learing Officer. I I II I I ()R OI RI I) that the above-entitled mat- ter be. and it herehby is, referred to the Regional Di- rector for Region 26 for the purpose of conducting such further investigation or hearing as he ma find necessar. and that the said Regional Director be. alnd hcrehb is. authorized to issue notice of anv such hearing. I w O [,' I M~ s l forth in hIi, ll n l!s oplsc lltltlg Op5lltll III [ 111w t lilt' a Rltlll)c ( 234 NI R1 i14 (1'78). M1tmberr PtneIl .illd. hrrine cxepiou al. it.lkllrllMt. ,, 111 lit 1 " %k p? t I1h PO,leletl l IllrtlllltiOn Ito coni licl ,coC.il ,.IIi lIccd III licl ilcd . rletch ohlch lti, I i'. hal.rillg l the vx,- letc oJ .elIi c,,tp ~ mal CIICLdI ("t't itlcV ih iil t c i dlimed Ii III15 i is %1CII11 1 CI I11 ' \( ML/ 1 111'1111 tCl 'C"P A Cithel tile lII1\ tIIp 11 o tI le ilc.illlhcr i'cil Iicidl Illl iil il ?c.' , pcp or4. eecl ilil' t IIc'tLt l . Fi ih thC ,12lll tl ll WI i ICI lI lile C0 /tIUcI hptllfl.ll% alc) I ! c .a i)bec- hwimihk . 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