Louisville Lumber & Millwork Co.

National Labor Relations Board - Board Decisions

Aug 22, 1996

321 N.L.R.B. 1005 (N.L.R.B. 1996)

1005
321 NLRB No. 147
LOUISVILLE LUMBER & MILLWORK CO.
1 Absent exceptions, we adopt pro forma the Regional Director’s
recommendation that the Union’s Objection 4 be overruled.
2 Contrary to our dissenting colleague, we find that a hearing is
necessary to resolve the issues raised by Objection 2. The evidence
presented concerning that objection consisted of two inconsistent
employer-generated documents—a dues remittance form sent to the
Union by the Employer suggesting the possibility that two employ-
ees had been given a pay increase, and payroll records indicating
that no increases had been granted. The Regional Director resolved
the apparent conflict between the two documents without a hearing
by accepting the Employer’s bare assertion that the dues remittance
form was inaccurate because of clerical errors, but the payroll
records are correct. Our dissenting colleague also accepts the Em-
ployer’s explanation. In our view, however, the question of which
of the two employer-generated documents is accurate is a factual
issue which cannot properly be resolved without a hearing. The
Union should be given the opportunity to examine the Employer’s
witnesses and test their explanation that bookkeeping errors oc-
curred. For this reason we believe that the proper course is to re-
mand this proceeding for a hearing on the Union’s Objection 2.
Louisville Lumber & Millwork Company, Inc. and
Paul D. Eaton, Sr., Petitioner and Kentucky
State District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of
America, and its Local 2501, AFL–CIO. Case
9–RD–1789
August 22, 1996
DECISION AND ORDER REMANDING FOR
HEARING
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on March 7, 1996, and the Regional Director’s re-
port recommending disposition of them. The election
was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 8 for and 9
against the Union, with no challenged ballots.
The Board has reviewed the record in light of the
exceptions and briefs, and adopts the Regional Direc-
tor’s findings and recommendations,1 except that it
finds that the Union’s Objection 2 raises substantial
and material issues which can best be resolved by a
hearing.2
ORDER
It is ordered that a hearing be held before a des-
ignated hearing officer for the purpose of receiving
evidence to resolve the issues raised by the Union’s
Objection 2.
IT IS FURTHER ORDERED that the hearing officer des-
ignated for the purpose of conducting the hearing shall
prepare and serve on the parties a report containing
credibility resolutions, findings of fact, and rec-
ommendations to the Board as to the disposition of the
objection. Any party may, within the time prescribed
by the Board’s Rules and Regulations, file with the
Board in Washington, D.C., eight copies of exceptions
to the hearing officer’s report. Immediately upon the
filing of such exceptions, the filing party shall serve a
copy on the other parties and shall file a copy with the
Regional Director. If no exceptions are filed, the Board
will adopt the recommendations of the hearing officer.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 9 to ar-
range the hearing.
CHAIRMAN GOULD, dissenting in part.
I agree with my colleagues that the Regional Direc-
tor correctly recommended that the Union’s Objections
1, 3, and 4 be overruled. Contrary to my colleagues,
I would also find that the Regional Director correctly
recommended that Objection 2 be overruled without a
hearing, because the Union has failed to submit suffi-
cient evidence to establish a prima facie case in sup-
port of the objection.
The Union’s Objection 2 alleges that the Employer
gave two employees a pay raise shortly before the
election. In support, the Union presented dues reports
from the Employer setting forth the amount of dues
deducted from each employee’s wages during Decem-
ber 1995, and January and February 1996. The reports
show that in February the Employer apparently in-
creased the amount of dues deducted from the wages
of employees Robert Unseld and Paul Eaton. The
Union did not present other evidence in support of the
objection.
The Regional Director found that the Objection 2
did not raise substantial and material issues affecting
the result of the election and recommended that it be
overruled. In reaching this conclusion, he relied in part
on evidence discovered during an investigation of the
objection, including: Eaton’s denial that he received a
pay increase; the Employer’s payroll records which
show that rates of pay for Eaton and Unseld remained
the same during the period December 1995 to February
1996; and interviews of the Employer’s witnesses in
which they asserted that the apparent increase in dues
for Eaton and Unseld were clerical errors.
The Union excepts, contending that the Regional Di-
rector based his recommendation on a credibility deter-
mination that was not within his authority to make
without the benefit of a hearing. In particular, the
Union contends that the Regional Director improperly
credited the Employer’s payroll records and the testi-
mony of the Employer’s witnesses over the dues re-
ports supplied by the Union. The Board’s Rules and
Regulations require that substantial credibility issues
concerning material facts be resolved at a hearing and
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Sec. 102.69(d); NLRB Casehandling Manual Sec. 11396.2; River
Walk Manor, Inc., 269 NLRB 831 (1984).
2 In my opinion, the Union cannot create a credibility issue merely
by suggesting that evidence may have been fabricated, without pro-
viding any basis for that suspicion.
not upon the basis of an evaluation of the results of
an administrative investigation.1
I have examined the evidence relied on by the Re-
gional Director in this case, however, and I find that
there are no credibility issues to be resolved. The evi-
dence submitted by the Union is easily reconciled with
and is in no way inconsistent with the evidence discov-
ered during the Regional investigation of the objection.
With regard to Unseld, the dues reports leave little
room for doubt that the apparent increase in his dues
was a typographical error. The evidence discovered
during the Regional Director’s ex parte investigation
merely confirms this. The Union contends that if
Unseld’s wages remained unchanged his dues should
have been $23.35 in February. The Union infers that
Unseld received a raise from the fact that his dues
were recorded as $23.85 in the February report. It is
apparent from the report, however, that the Employer
did not deduct $23.85 from Unseld’s wages. Thus, the
sum of the dues recorded for each individual employee
is $379.97. The total recorded at the bottom of the
dues report, however, and on the check attached to the
dues report, is $379.47. Therefore, the total dues de-
ducted in February and transmitted to the Union did
not include the apparent 50-cent increase in Unseld’s
dues. Further, the March report indicates that the Em-
ployer deducted $23.35 from Unseld’s wages in
March.
With regard to Eaton, the payroll records show that
he earned $10.55 an hour during the period December
1995 to February 1996. Several other employees are
also shown to have earned the same hourly wage. Ac-
cording to the dues reports, however, in December
1995 and January 1996, other $10.55-an hour employ-
ees paid 50 cents more than Eaton in dues. According
to the Employer, it discovered this error in February,
and increased Eaton’s dues by 50 cents to $23.35 to
match the dues paid by other $10.55-an hour employ-
ees. It then deducted another 50 cents from his wages
to make up for its error in the previous months. In
March, the Employer deducted $23.35 in dues from
Eaton’s wages, the same amount deducted from the
wages of other employees earning $10.55 an hour.
The Union has not submitted any evidence con-
tradicting the payroll records and witnesses, nor does
it contend that it could produce such evidence at a
hearing. The payroll records and the Employer’s wit-
nesses are therefore uncontroverted, and there are no
credibility issues to be resolved.2 Under these cir-
cumstances, I find that the Regional Director properly
relied on his ex parte investigation in determining that
the Union is not entitled to a hearing on its Objection
2.