Delta Diversified Enterprises

National Labor Relations Board - Board Decisions

Jul 19, 1994

314 N.L.R.B. 442 (N.L.R.B. 1994)

442
314 NLRB No. 77
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the hearing officer’s finding that, under settled Board
law cited by him, the granting of a benefit during the critical period
is considered objectionable unless the employer comes forward with
an explanation for the timing of its action, we do not rely on his
use of the term ‘‘presumption.’’ See Shore & Ocean Services, 307
NLRB 1051 (1992), and Springfield Jewish Nursing Home, 292
NLRB 1266 fn. 3 (1989) .
2 In the absence of exceptions, we adopt, pro forma, the hearing
officer’s recommendations that the challenge to the ballot of Glen
Cox be sustained and the challenges to the ballots of Victor Manwill
and Robert Goad and Objection Nos. 2 and 3 be overruled.
We deny as lacking in merit the Employer’s motion to reopen the
hearing to introduce its general manager’s two affidavits provided to
the Regional Director and a third affidavit taken by a Board agent,
all in connection with the Region’s investigation of the case, and to
permit further examination with respect to the Employer’s reasons
for granting a wage increase to employee Coombs. The hearing offi-
cer initially denied this motion finding that the evidence sought to
be introduced was not newly discovered or previously unavailable.
We agree. We additionally note that the affidavits are not part of
the formal record in this proceeding. See Sec. 102.69(g)(1)(i) of the
Board’s Rules and Regulations. We further note that the Employer’s
general manager was called by the Employer and testified at the
hearing but was not questioned with respect to Coombs’ wage in-
crease. Finally, in these circumstances, we reject the Employer’s
contention that the evidence it now seeks to adduce should have
been taken at the hearing and is therefore a basis for reopening the
record pursuant to Sec. 102.65(e)(1) of the Board’s Rules.
Delta Diversified Enterprises, Inc. and International
Brotherhood of Electrical Workers, Local
Union 357, AFL–CIO, Petitioner. Case 28–RC–
5161
July 19, 1994
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
The National Labor Relations Board, by a three-
member panel, has considered objections and chal-
lenges in an election held on October 22, 1993, and
the hearing officer’s report recommending disposition
of them. The tally of ballots shows 6 for and 8 against
the Petitioner with 3 challenged ballots, a sufficient
number to affect the results of the election.
The Board has reviewed the record in light of the
exceptions and brief, and has adopted the hearing offi-
cer’s findings1 and recommendations.2
[Direction of Second Election omitted from publica-
tion.]