Regal Dodge

National Labor Relations Board - Board Decisions

Oct 8, 1997

324 N.L.R.B. 665 (N.L.R.B. 1997)

665
324 NLRB No. 106
REGAL DODGE
Regal Dodge, Inc. and Machinists Automotive
Trades District Lodge 190, Local Lodge 1101,
International Association of Machinists and
Aerospace Workers, AFL–CIO, Petitioner.
Case 32–RC–4261
October 8, 1997
DECISION AND DIRECTION
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
The National Labor Relations Board has considered
a determinative challenge in an election held on April
11, 1997, and the Regional Director’s report rec-
ommending disposition of it. The election was con-
ducted pursuant to a Stipulated Election Agreement.
The tally of ballots showed 2 for and 1 against the Pe-
titioner, with 1 challenged ballot, a sufficient number
to affect the results.
The Board has reviewed the record in light of the
exceptions and brief and has adopted the Regional Di-
rector’s findings and recommendations.
We adopt the Regional Director’s recommendation
to overrule the challenge to employee Hasegawa’s bal-
lot. The Regional Director’s investigation revealed,
inter alia, that the Employer asked Hasegawa to delay
his departure for a new job until it could find a re-
placement, that the Employer offered him, as an incen-
tive, the same rate he would receive in his new job,
and that the Employer advertised for a replacement
prior to the election. The Regional Director concluded
that Hasegawa was working on the eligibility date and
on the date of the election and that, therefore, he was
eligible to vote under the Board’s eligibility test, as set
forth in Roy N. Lotspeich Publishing Co., 204 NLRB
517 (1973).
Even considering the matter of the alleged ‘‘bribe’’
in the context here of a challenged ballot, we find that
the Petitioner has not presented sufficient evidence to
warrant a hearing. See NLRB v. VSA, Inc., 24 F.3d
588, 596–598 (4th Cir. 1994), enfg. 309 NLRB No.
188 (Dec. 31, 1992) (not reported in Board volumes)
(a party’s disagreement with the interpretation or infer-
ences placed on facts by the Regional Director is not
sufficient to warrant a hearing). In this regard, we note
that the Regional Director’s findings of fact as to the
circumstances of the Employer’s arrangement with
Hasegawa are not contested by the Petitioner and are
not in conflict with any other findings in the Regional
Director’s report, or with any evidence submitted by
the Petitioner. Contrary to our colleague, we do not
agree that the Regional Director, in resolving this
issue, has made a credibility resolution. Rather, in
finding a hearing warranted here our colleague, at bot-
tom, relies on the Petitioner’s characterization of the
uncontested facts as amounting to a ‘‘bribe.’’
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 32 shall, within 14 days from the date of this De-
cision and Direction, open and count the ballot of Glen
Hasegawa. The Regional Director shall then serve on
the parties a revised tally of ballots and issue the ap-
propriate certification.
MEMBER FOX, dissenting.
Contrary to my colleagues and the Regional Direc-
tor, I find that the Petitioner could properly raise the
bribery issue as a challenge to the voting eligibility of
employee Glenn Hasegawa. See, e.g., Einhorn Enter-
prises, 279 NLRB 576, 596–597 (1986); Central De-
livery Service of Massachusetts, 225 NLRB 758, 759
(1976); Value City Furniture of Springdale, 222 NLRB
455, 460 (1975). I further find that the Petitioner has
presented sufficient evidence to warrant a hearing. In
recommending that the challenge be overruled, the Re-
gional Director has in essence credited the Employer’s
asserted explanation for Hasegawa’s remaining on the
Employer’s payroll until after the election at a higher
rate of pay. Such action by the Regional Director, in
the absence of a hearing, is error. See National Labor
Relations Board Rules and Regulations, Section
102.69(d); Frontier Hotel, 265 NLRB 343 fn. 4
(1982). Accordingly, I would direct a hearing on this
challenged ballot.
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