National Labor Relations Board v. Ara Services, Inc.

the conduct of the objections to N.L.R.B., Song, Atty., Lawrence J. Wil- regional director without requiring Lubbers, Counsel, A. liam Gen. John E. hearing, and we enforce conduct a Counsel, Jr., Higgins, Deputy Gen. Robert employer to bar- directing order Allen, Counsel, Acting E. Associate Gen. gain collectively. Moore, Deputy Gen. Elliott Associate Coun- Proceedings Before I. sel, Ferguson (argued), Atty., John H. catering industrial D.C., engaged in the Washington, petitioner. for ARA is locations, including a number of business at Jackson, Lewis, Krupman, Schnitzler & Lab- room of Bell dining the cafeteria and Buchsbaum, Ashworth, Norman R. Joe C. Hill, On Jersey. New Murray oratories Baltimore, Md., Kaplan (ar- and Roger S. Union, major- 24,1979 claiming October gued), City, respondent. New York for among employees at ity ARA support collec- as their facility, sought recognition Dec. Argued de- ARA bargaining representative. tive 9 the November ADAMS, GARTH, recognition, and on Before clined GIBBONS petition a representation filed Judges. Circuit stipulated Objection to a company support the Board. The was tendered No. 2. charge. 11, 1980, contains an January on Smith’s additional consent election stipulation appropriate defined the bar- statement, part, Woodruff’s relevant these, gaining unit of 69 members. Of 58 reads ballots, voting repre- cast union Fusco, pro- Paul and Enzo two Reisner Region sentation. The director for two occa- spokesmen union different thereupon tally furnished to the sions, voting took told place, before 5 days permitted of the ballots. Within the go along me that I should with the Union. 102.69(a), C.F.R. counsel for ARA up” Enzo said he’d “beat me if I did not following filed with him the ob- unverified join the told Union. Paul Reisner me jections to the conduct of the election: join “get he’d back at me” if I didn’t Union. Objection 1No. Union, officers, agents, sup-

porters and employ- adherents threatened The man a tall who was big guy, Union harm, ostracism, ees with social physical here for the vote said there would be an and reprisals against food, voted all-out that jobs, strike —no the representation. Union, union acting The prevented trucks would be from deliver- officers, through its agents and adher- able food and no one would be ents, the chilled inter- come to work. was when atmosphere present and Fusco fered with free the official exchange the of ideas Union made this comment. I advising yes. Fusco said me that better vote employees that was aware Fusco and some of the others told me which employees talking manage- were Union, that if I didn’t vote for the nobody representatives, ment thereby creating an my talk would be friend or to me. atmosphere of and coercion tension which interfered with the conduct of the elec- not say Woodruff’s statement does whether tion. or not he During voted the election. the investigation regional course of his di- Objection 2No. Woodruff, rector interviewed Fusco and Agent Board Bennett Muraskin failed to respect charge Reisner. With that exercise his authority and to affirmative- Woodruff was threatened with the loss of act ly so as to make it clear to the em- friends, Objections Report his that probative ed that “no evidence was sub- Fusco and Reissner were not [sic] mitted, investigation nor did the disclose adherents, prime Union and there is no evidence, that the any Petitioner’s [Union’s] evidence that Petitioner [Union] engaged any observer in conduct that was any alleged aware of misconduct attrib- the effect of interfering intended to or had uted to them nor condoned or ratified any employees’ in the elec- free choice actions. Further alleged their there is tion. ...” representative no evidence that any charge engaged Petitioner in Smith’s statement contains any [Union] me pro-Union girls misconduct. “several of the told in the NLRB if I voted for the Union 2International Ladiеs’ Garment Workers’ election, Union, AFL-CIO, me a giving the Union would be 214 NLRB 706 objection This was not birthday gift.” is the only Woodruff’s statement evidence made within permitted the time support Objection submitted ARA in 102.69(a), precedent C.F.R. but Board § No. 1. for the de- Except interlineation to consider permits regional director scribing pro-un- Reisner and Fusco as “two an in- matters uncovered in the course of spokesmen” ion it contains no information alleged objec- in vestigation specifically not about the connection of either to the Union Corp., tions to an election. Pure Chem See organizing or the effort. Thus the facts (election (1971) 192 NLRB 681 set aside on respecting developed their during status developed regional in di- regional director’s basis of facts uncontra- alleged objec- dicted rector’s in by any investigation, evidence submitted ARA. me, minute, part 1. The statement in relevant Ysebaert would tell “Wait a wait reads: minute,” voters, right in and front of [sic] Company’s during I was the observer charge voting making was in of the it seem she Mary NLRB election. Ann Ysebaert was the stopped procedure. agents never The Board Union observer. When the came charge voting appearing from to take her vote, say sorry, into “I’m but Ysebaert would Taylor, grill employ- [indecipherable]. Elaine your please, name I have to do this.” There ee, Mary Ann Ysebaert didn’t stated that nothing agents, were two said when election, run could not have seem to this talking gave she did all the impression and the voters Boulware, happened: Taylor Beulah told this to and not the Govern- that the Union prepares who sandwiches. running ment was the election. charge director in his investi- 1980 the unfair labor was filed. tion). regional an affidavit from Smith gation obtained counsel filed general promptly The Board’s was to be the donor that the Union denying summary judg- and moved for complaint admitting and birthday gift, excep- relied on its response ment. ARA’s (his gift reference to such belated birth- regional report tions to the director’s past) time was made face- day was some In granting motion for reconsideration. regional reported director tiously. August motion on general counsel’s not raise a the incident “does substantial 1980, the Board noted: setting issue would warrant aside the by Respondent All issues raised [ARA] election.” were or could have been proceeding 21, 1978, regional di- February On litigated prior representation pro- in the rector recommended to the Board that does not offer to ceeding, Respondent objections’ ARA’s be overruled in their en- hearing any newly adduce at a discovered tirety, and that Union certified as evidence, previously unavailable nor bargaining representative. Within the 10 allege any special does it circum- 102.69(e), days provided in 29 C.F.R. ARA require stances exist herein which would filed 13 to his exceptions which are the Board to reexamine the decision made A quoted margin.2 three-member representation proceeding. , panel of the Board reviewed the record It therefore held that ARA’s refusal to bar- light exceptions of ARA’s and brief and 158(a)(5). gain violated section adopted findings director’s recommendations. It certified the II.

bargaining April representative ARA’s motion for reconsideration was de- Objection ARA’s to Certification 1,May April nied on 1980. Meanwhile on 11, 1980, objects ARA enforcement ARA informed the Union that on two bargain collectively, April grounds: would not and on that the Board should have direct- (Report 2-4) 2. Pursuant to Section 102.69 of the Board’s 6. To the failure to set Services, Inc., Regulations, Objection Rules ARA Em aside the election on the basis of ployer above-captioned proceeding, by No. 1. counsel, undersigned excepts (Report 2-4) Region its to 7. To the failure at to order the evidentiary hearing Report Objections (the al an be conducted on the Director’s on “Re issues, port”), including substantial material matters as follows: credibility, by Objection of testimonial raised (Report 3) 1. To the failure at to find that No. 1. Petitioner, through agents, supporters the its (Report 6) 8. To the failure to find at employees and adherents threatened certain Agent the conduct of Board Muraskin was physical with harm' and social ostracism inadequate impression to create the that the they against representation. voted union Government and not Petitioner was in fact finding 4) (Report 2. To the erroneous at running the election. Employees Fusco and Reisner did not finding 6) (Report 9. To the at inaccurate apparent authority per- either act with or be that Petitioner’s observer did not influence by employees having ceived unit as the au- by the outcome of the election his actions thority to act on behalf of the Union when during the actual election. employees phys- threatened certain with (Report 5-6) 10. To the failure to at sus- ical harm and social ostracism. Objection supported by tain No. 2 as the by 3. To the erroneous conclusion the Re- evidence. gional 3) (Report Employer’s Director at (Report 5-6) To the failure to at set 11. Woodruff, proffered employee unit failed to Objection aside the election the basis of physical take the threats of harm and social 2.No. seriously. ostracism 5-6) (Report the order 12. To failure at (Report 5-6) 4. To the failure to find at evidentiary hearing be conducted on the an through agents attempted that the its Union important questions substantial and raised Employee to influence Smith to vote for the by Objection No. 2. gifts. promising him material (Report 6) To failure at to sustain (Report 2-4) 5. To the sustain failure election, Objections, both set aside the Objection supported the evi- No. 1 as evidentiary hearing and/or an be con- order dence. ducted. 478-79, Corp., ed to hold eviden- 376 U.S. regional Greyhound director an 894, 897, hearing, (1964). and that certification 11 L.Ed.2d 849 In- tiary S.Ct. reviewing without all the provides: made materials Act stead regional relied on director. an order of the Board made Whenever Hearing Evidentiary 160(c) Contention is pursuant A. section of this title part upon in whole or in facts based of that it is Disposition ARA’s contention following pur- an investigation certified pre-certification evidentiary entitled to (c) of and suant to subsection this section requires appreciation an of the hearing both or petition there is for enforcement scheme statutory governing representation order, review of such such certification proceedings, developed and of the standards shall and record of such by the Board respecting atmosphere transcript be included in the of the entire representation elections be con- shall filed required record to be under subsec- Labor ducted. Section 9 of National title, (e) or (f) tion of section 160 of governs Act selection Relations of collective court thereupon and the decree of the bargaining representatives. 29 U.S.C. enforcing, modifying, setting aside (1976). provides It § or in the order the Board part for whole of may petition bargain- certification of a ing representative. Upon filing upon of such shall made entered and a petition employer organi- testimony, proceedings labor set pleadings, case, as in this may, zation was done enter transcript. in such forth agreement. consent into a election 159(d). only This is the statu 29 U.S.C. § 159(c)(4); U.S.C. C.F.R. 102.62 § § judicial with tory provision dealing review If no agreement consent is made representation questions. of It does investigate “the petition Board shall irregularities a consent deal if it has reasonable cause to believe 9(c) Investigations election. under section question representation affecting that a are directed to such issues as the sub only commerce exists provide appro- shall for an stantiality support appro union priate upon notice. due hear- Such unit; priateness bargaining questions ing may be conducted officer or em- aby which are mooted consent election office, ployee who shall not agreement. Such elections are conducted any respect make recommendations with conformity regulations “in and rules 159(c)(1). thereto.” 29 U.S.C. While § Board.” decision 29 U.S.C. “hearing,” statute refers to a is clear that 159(c)(4). purpose merely adopted by the rules Under gather information to facilitate the Board’s elections, 29 conduct of of 1981 investigation. duty “It shall be the af- (1981), days 102.69 C.F.R. § “[w]ithin fully officer into all mat- inquire furnished, tally of ballots has been ter issues to full necessary ters and obtain a regional with di- any party may file the complete upon which Board and record the objections to the of the rector ... conduct or regional may discharge the director their of affecting or the results election conduct 9(c) of duties under section the act.” election, which shall contain a short 102.64(a) (1981) (emphasis origi- C.F.R. in § of the reasons therefor.” statement nal). representation question If a exists 102.69(a). If such are objections C.F.R. § “shall an the Board direct election secret shall, regional consistent filed “the director shall certify ballot and results thereof.” provisions 102.69(d) of investi- with § The Act 159(c)(1). contains § U.S.C. objections” report gate prepare provision judicial for review. Con- direct 102.69(c). That for the Board. 29 C.F.R. § gress made the choice of insulat- deliberate adminis- “may be on the basis of an report judicial those from proceedings direct or, to the if it investigation appears trative review so as to attrition of union prevent mate- regional director that substantial support caused commence- by delay exer- which, in the Boire v. rial factual issues exist bargaining. ment of collective discretion, cise reasonable he deter- any of his issue as to material fact.” Instead the regional mines Board may appropriately provided more be resolved director had discretion to determine whether or not hearing, after a he shall issue and cause to given fact re- issue of could be better be served on the hearing notice of solved investigation rather than a hearing on said issues before a officer.” 29 hearing. approach drafting That 102.69(d).3 C.F.R. § rule dealing challenges with to the conduct If the regional director exercises his of elections is consistent with the intention discretion in favor of a hearing, that hear which, Congress, 159(c), in section chose ing “shall be conducted in accordance with an inquisitorial procedure model of provisions 102.64, 102.65, §§ certification bargaining representatives. 102.66, applicable, insofar as except that at contrast, In Congress section provid- the close of such hearing, hearing offi ed for a classic proce- adversarial model of shall, cer if directed by di any “proceeding shall, dure in which so far rector, prepare and cause to be served on practicable, be conducted in accordance the parties resolving questions of with the rules of evidence applicable in the credibility containing findings of fact district courts of the United States under and recommendations as to disposition the rules of civil procedure for the district 102.69(e). issues.” 29 C.F.R. § courts of the United States.” 29 U.S.C. 102.64, cross-reference to sections 65 and 66 160(b) § procedures is to the conducting a section Following re 159(c) investigation. But whereas in a sec gional director must file a report tion 159(c) investigation the role of thе Board, to any party may file excep hearing officer is merely gather informa tions with a supporting brief. “In a case tion, not to resolve issues credibility or ..., involving a consent election if excep recommendations, make proce tions are filed ... and it appears to the permits dure hearing officer to do so if Board that such exceptions do not raise the regional director so elects. Thus a substantial and material issues respect second element of discretion is added to the election, the conduct or results of the regional director’s initial discretion with re decide the matter forthwith spect holding a hearing. upon record, may or make disposi option hearing of a with re tion of the If it appears case. to the Board spect objections conduct of an that such exceptions raise substantial and election, then, solely a creature issues, material factual the Board may di rulemaking authority. Nothing rect the regional director or other agent of the statute mandates it. Moreover the Board to issue ... a notice hearing drafting 29 102.69(d) C.F.R. the Board § on said exceptions before a officer.” was careful not to track the language 102.69(f). C.F.R. As in the case of a § 56(c), Fed.R.Civ.P. authorizing summary director, directed aby regional judgment only if “the pleadings, deposi Board has discretion to direct the hearing tions, interrogatories, answers to and ad officer to resolve questions credibility file, missions on together with the affida and make findings of fact and recommenda vits, if any, show that there is no genuine Id. Thus there is superimposed tions. amended 29 C.F.R. 102.- officer. Such shall be conducted 69(d) to read as respect follows: challenges to those regional which the director concludes raise (d) issuing objections a on or substantial and material factual issues. ballots, both, challenged following pro- оr Even if we were to conclude that the amended 102.67, ceedings 102.62(b) under or §§ or in regulation anticipated by should have been the issuing challenged a decision on or change ballots, Board that would not the outcome both, since following proceedings or under substantiality materiality 102.67, the decision as to regional the director act on the is still vested in the Director in the investigation basis of an administrative or upon hearing first instance. hearing the record of a before a

65 Co., Ins. 380 U.S. Metropolitan in NLRB v. regional discretion vested upon the (1965); L.Ed.2d 951 85 13 a level of discretion S.Ct. directors second 473, 84 Greyhound Corp., 376 Board, hearing or Boire v. U.S. to decide whether not a 894, 11 (1964); Pittsburgh 849 election L.Ed.2d its into S.Ct. will facilitate NLRB, 61 v. 313 U.S. S.Ct. Glass Co. irregularities. L.Ed. 1251 See also NLRB 85 in proce Reasons for the distinction (3d Cir.1966); Co., F.2d 408 Drug v. 359 Sun proceed models between certification dural Inc., Bakers, 45 Capital NLRB v. practice proceedings unfair labor ings and court, Cir.1965). (3d Nevertheless If respective rights to the involved. relate possible distinction considering without bargaining in majority appropriate a an 159(c) section issues and between repre bargaining unit chooses collective issues, an on the merits conduct considered right has no to with employer sentative to failing that Board erred in objection dis recognition. Thus essential hold atmosphere sur hold a about section 159 proceed in a certification pute In that we held rounding an election. case groups employ competing is between of to rely upon is entitled “[t]he is ees, object proceeding sole reaching its conclusion” expertise choice. safeguarding majority of free unnecessary. was NLRB v. Clear is or model inquisitorial investigatory An (3d 322 94 Company, Cheese F.2d field In an labor to that end. unfair well suited we have Cir.1963). Cheese Since Clearfield hand, proceeding, on practice some from authority assumed we havе is organization, employer, a labor dis to review the Board’s election source with the viola charged by government Indus dispositions. See Season-All pute obvi duty, Congress of a statutory tion (3d tries, NLRB, v. 654 F.2d 932 Cir. Inc. safeguards of ously believed that Inns, misconduct); Anchor 1981) (election Procedure, including Rules of Federal Civil Cir.1981) (3d v. Inc. 56(c), casting necessary. Rule And misconduct); Zeiglers Refuse Col (election 102.69(d) in terms of discretion C.F.R. § lectors, (3d v. Inc. F.2d investi to conduct rather than an misconduct); v. (election NLRB Cir.1981) simply give the Board chose to gation, (3d Dept., Products F.2d Campbell in regional neutral directors additional misconduct); Cir.1980) (election use, tool can their quisitorial which Bros., (3d Cir. Staiman discretion, making to aid in an informed vote); NLRB v. El-Ge 1972) (eligibility to whether, compet as to decision between (3d Cir. Co., 427 F.2d 903 Chip Potato ing groups employees, repre of the election eli- vote). The voter 1970) (eligibility voice made sents the It majority. membership cases, involve gibility which respect the same choice with to its consider which unit, issues bargaining involve exceptions to the director’s ation 159(c) in a arise section ordinarily would report. strong and thus have rather proceeding, 159(d) express provi- While section makes authority judicial claim for review review section judicial sion for limited 159(d). statutory authority Our section 159(c) investigations, makes no reference electioneering Board resolutions review arising respect to the review of issues with disputes practice in unfair labor misconduct procedures. Thus clear to election it is’not ap- less considerably is enforcement cases judicial face undertaking on the of the statute that Nevertheless our parent. interpre- in a 160 en- review intended section unreasonable do so involves a not sec- any interrelationship between proceeding respect forcement tation of In the arising 159(c)(4) 160(f). section issues other than those in a and section tion 159(c) investigation. objection by Court Supreme absence we authority, assume 159(d) cases all involve exercise construing section respect determinations, judicial form of review some bargaining unit in- available. Our 159(c) issue. election misconduct present the most section typical quiry scope is narrower: what is the of such agents of a union or an who employer may review when the Board decides not to re- have the wherewithal to effectuate them. quire evidentiary hearing. moreover, an Employees, are credited with ability, experience workplace, from in the To we put inquiry focus must give appropriate weight possibly im- nature charges consider the of the three on pulsive employees ‍​​‌​​​​​‌‌‌​‌‌​‌‌‌‌‌‌‌​​​​​‌‌‌​​​​‌‌‌‌​​​‌​‌​‌‌‌‍statements fellow relies, which ARA and the substantive law the heat campaign. of a NLRB v. Sauk to which are charges addressed. The 1127, Co., Valley Manufacturing 486 F.2d are of designed produce threats a vote in (9th Cir.1973); 1131 n. 5 see also NLRB v. union, favor of the promise and a designed 412; Corp., Aaron Bros. 563 F.2d at vote, to induce such a and of inadequate Div., v. Bostik Corp., USM 517 F.2d at 975. supervision balloting. The first two Perhaps important most reason for involve allegedly coercive electioneering scrutinizing employee mere misconduct may together. be considered lower applied standard than is to miscon- 1. The Coercion Claim by agents duct employer or a union is All of the law with respect to the expressions temper passion may atmosphere to be maintained in an election reality reflect in a contested campaign is Board-made under the lawmak election friction is inevitable. Given delegated to it authority by Congress. relations, nature of inter-employee Thus ordinarily the courts must defer to the Board cannot realistically expected policy judgments Board’s respecting the creаte totally frictionless election environ- conduct which will be deemed so coercive as ment. Polymers, See Inc. v. to interfere with employee free choice. 999, (2d Cir.1969), denied, F.2d cert. Traditionally the Board has been reluctant 1010, 570, 396 U.S. 90 S.Ct. 24 L.Ed.2d 502 to set aside elections because of misconduct (1970); NLRB v. Monroe Automotive parties, compared third agents Cir.1972), Co., 1329, Equip. (5th an employer See, or a union. e.g., NLRB v. denied, 928, rt. 412 U.S. 93 S.Ct. ce Aaron Corp., (9th Bros. (1973). Indeed, 37 L.Ed.2d 155 insis Cir.1977) (per curiam); NLRB v. Bostik ting that there give among be no and take Div., Corp., (6th USM 517 F.2d 971 employees the subject desirability Cir.1975); NLRB v. Cleaners, Inc., Staub bargaining collective would in itself be (2d Cir.1969), cert. an undue interference with em informed denied, 397 U.S. 90 S.Ct. ployee democracy. Thus the policy Board’s L.Ed.2d 649 One reason for the giving lesser weight to instances of approach Board’s is that coercion third-party misconduct in an electioneering employer or a labor organization in the context relationship bears rational choice of a bargaining representative is it Act, underlying policies of the and this practice, self an unfair labor prohibited by court must accept judgment. the Board’s 158(a)(1), (b)(1).4 section Another is that setting aside an election is an effective de Accepting judgment in this

terrent to misconduct an employer or a further, union, respect narrows the still inquiry while it is no deterrent to third par is, ties. this instance the director’s re therefore, There no assurance that port second assumes Fusco and Reisner election will be held in an im them, proved made the atmosphere. have threats attributable See NLRB v. Staub Cleaners, girls plant Inc. and that some of the Another reason is that Board, judicial concurrence, promised birthday gift. Smith a belated has al ways (1) questions accorded less Two remain: was an eviden weight to conduct which Fusco, is attributable whether tiary hearing required to neither the nor the as to emрloyer. Reisner, birthday girls Threats of fellow are and the were union (2) not, deemed to be agents; less coercive than those of were the threats or 158(b)(1) practice charge against 4. ARA did not file a section unfair labor the Union. apply own rules require, generally as to as a matter must promises the capricious, the election be set aside. If is not arbitrary, law that manner af- were to be answered question of discretion. second an abuse hearing appropriate be firmatively might There was no here. The such abuse issues, outstanding credibility to resolve challenges rule on election directs Board’s threats, and Reisner since Fusco denied director an election regional to refer part recanted of his unsworn and Smith if he challenge only to a officer statement. it and concludes raises “substantial contends the failure to ARA only factual issues.” The material material agen evidentiary hearing an as to hold issue raised the statements factual Reisner, Fusco, and the birth status of cy of Reis Woodruff and Smith was the status right, violated its day girls process due Fusco, ner, as birthday girls agents and equates it with the standards for which the union. The “evidence” of such only 56(c). hearings in evidentiary Fed.R.Civ.P. is the in Woo agency status interlineation reject that contention. The strict stan We pro-un “two druff’s statement words 56(c) Rule is derived not from the dard of and Smith’s attribution of spokesmen” ion amendment, clause of the fifth process due of a to “several of promise birthday gift from the seventh amendment. It could but girls.” union di pro regional changed respect proceedings with to be parte produced rector’s ex investigation trial is not What sort jury required. agency persons. evidence of status of these investigation due required by of factual is adopted Even if the rules had upon a number of varia process depends issue of fact” stan genuine “no material Friendly, Hearing, Some Kind of bles. See 56(c), it wheth of Rule is questionable dard (1975). Certainly 123 U.Pa.L.Rev. ARA, by furnishing er the statements procedure model of selected inquisitorial Smith, and such an issue Woodruff raised for certification matters in section Congress certainly status. But was agency even 159(c) process of the Act satisfies due regional not an abuse of discretion for officer, under 29 C.F.R. though no “substantial director to conclude that 102.64(a) merely reports, without resolv material factual as to that status issue” credibility making issues or recommen Board, reviewed raised. The when it was investigations A fortiori of elec dations. recom regional director’s entirely crea irregularities, tion which are mendation, required consider wheth regulation, require tures of do hearings 56(c) Rule evidentiary satisfying exceptions er ARA’s raised substantial governmental being policy standards. factual An examination material issues. employee is of bar implemented nothing free choice discloses that add them representative, not free gaining employer him. regional what the director had before from collective Board su bargaining. dom the certification Thus its decision decide and Board with no pervision regional the record question on made for a com provision employer abuse of cannot be held to be an director with plaints perfectly would consistent discretion. in There are process employers. due director Since process requires in which due stances allegedly properly treated an mode of agency an afford adversarial third-party state coercive statements as hearing, evidentiary and an procedure ments, only deny we could enforcement parte proc to an ex preference inquisitorial made assuming they believed that we an Determining ess. the basic fairness of the election. setting aside they requirеd election, however, instance. is not such an birth facetious Patently promise by in this At what we are dealing most As to is a trivial matter. day girls ad judge-made case non-constitutional rec Fusco, have of Reisner and we agency threats law respect ministrative can threats third conduct, agency ognized rule that specifically the we in this case. The result in Season- atmosphere apply of intimidation create such a fair election cannot be with that stan- probably and coercion that All is consistent Collectors, Refuse Inc. v. Zeiglers dard, held. Michem rule because of Cir.1981). NLRB, (3d 1000 In the by an of an em- electioneering agent that however, case, hearing there awas Zeigler during ployer polling place or a union at a level, and as autho- regional at the director setting aside balloting per ground is a se for 102.69(e), 29 C.F.R. by rized § Inc., Michem, 362 an election. NLRB credibility determinations. officer made (1968). regional The director’s witnesses, officer, having heard That comment on the con- “did not Season-All a general concluded that there was atmo- [agency] as to sta- flicting evidence Sadler’s The sphere of fear and intimidation. that Disregarding tus.” 654 F.2d Board, however, evidentiary sup- with no material fact issue vio- patently significant port, rejected credibility determinations rules, lated the Board’s and was abuse findings regula- and factual which its own Anything discretion. in the Season-All tions authorized the officer that it a opinion suggests announces Clearly Zeiglers make. involved an abuse different standard of review than we have rejecting of discretion the Board in applied in this in banc case must findings officer’s without explana- disregarded. future be evidentiary support. tion or In this in- stance, however, both the regional director Inadequate Supervision 2. The Claim and the that Board ruled if the threats were made they had no material effect on governing The Boаrd’s rules elections Woodruff, note, the election. we did not provides that secret ballot elections shall be allege that he was influenced re- supervision conducted under Considering respect- threats. that the law gional party may repre- director. be Any ing electioneering atmosphere is Board- sented of its selection. The observers law, made regional and that directors agents may challenge and Board and- the Board have far expertise more eligibility any person participate. judging the employee effect of threats on 102.69(a). Obviously proper, C.F.R. it is do, free choice than we say we cannot not necessary, per- and even for observers rulings these were an abuse of discretion. sonally acquainted every member of That being the case there was no need for bargaining require unit identifica- an evidentiary hearing to resolve the credi- tion. Thus the references in Colavito’s bility dispute Woodruff, between and Reis- statement about some of the activities of ner and Fusco over whether the threats agent the Union Ann Ysebaert Mary were made. making inquiries suggest do not con-

ARA contends that our decisions in duct any way improper. which is in Inns, (3d Anchor Inc. v. 644 F.2d 292 has held actions Cir.1981), Industries, Inc. v. Season-All its agents tending destroy confidence (3d Cir.1981), require 654 F.2d 932 compromise in election or to its processes different conclusion. we Anchor Inns setting for neutrality may be basis aside reviewed a record which there was noth Co., See, e.g., Packing an election. Glacier ing disclosing why ex director’s Inc., (1974); 210 NLRB 571 Kerona Plastics parte investigation was sufficient to over Co., (1972). But Extrusion NLRB come a facie case of strong prima coercion optimum practices the test is not whether of a change sufficient number of voters to followed, all the facts but whether on the result of the election. Board certifica election wаs held tion in the manner in which the case, inquiry, without further validity. raises a reasonable doubt as to its was an opinion abuse of discretion. The Inc., (1969). precise Polymers, not 174 NLRB respect scope of our review, re parte investigation but inconsist Here the Board’s ex should not be read as ent practice with the vealed that abuse standard Board’s standard of discretion summary counsel’s notice, general motion identification observ- respecting observers, mentioned. agents, instructions to contention judgment ers and was fol- eligible voters merits we not may and identification Whatever suggestion in Colavito’s vague lowed. v. Ochoa Fertilizer E.g., consider it. impression it was her statement 318, 322, 344, 347, Corp., 368 U.S. S.Ct. officiously acted too the Union observer L.Ed.2d 312 and material present substantial

does to the fairness of elec- factual issue as III. evidentiary hearing. requiring tion itself, not, as- the statement does Moreover Conclusion that a new suming accuracy, require its objections to certifi- of ARA’s Since both to exceptions be held. ARA’s the election merit, without the Union are cation of report and recommenda- regional director’s for its to it no other reason refusal tenders to Colavito’s statement. nothing tions adds will be enforced bargain, the Board’s order summarize, regional To the director in in full. report his and recommendation preparing to election in re- on ARA’s the ADAMS, Judge, concurring. Circuit rather parte investigation liance on his ex but majority, I believe concur not evidentiary hearing than an did abuse issues that certain raised dissent discretion, Board, considering his and the in merit additional comment. to that not exceptions report ARA’s did bottom, this turns on the rela- At case abuse its discretion. Both acted consistent- agen- an administrative tionship between with the standards set out rules ly and the standard of cy’s procedures internal governing challenges. appellаte judi- court. Because review Record Contention Incomplete B. inappropriate cial occa- provides review enforcement is objection ARA’s second to imposition of court-crafted sion for director, regional transmitting in procedures, I intra-agency rules regulating to report his and recommendation majority ruling order of join the (cid:127) Board, to include the affidavits or failed must Labor Relations Board National during course his statements taken be enforced. is the parte investigation. ex It arguments may be ad- Undoubtedly, position regional director has no vanced, for the perhaps persuasively, even obligation to include such materials in a proceedings rather use full adversarial objec- report parte investigation an ex investigations when represen- than agency Sausage Co., tions to an election. Odum alleged. Un- impropriety tation election 284, (1981). 256 NLRB 107 LRRM 1226 to preference rises the level procedural less interpretation That seems consistent however, imperative, of constitutional governing regulation. text 28 of the an investigation decision whether utilize 102.69(g). C.F.R. § full is best left to employ or to question We not decide the There can be the discretion NLRB. case, however, objection this because “[n]o mistaking Court’s instruc- Supreme urged that has before the Board not been tion constitutional constraints that “absent court, shall unless ... be considered circumstances the compelling or extremely objection neglect urge the failure or agencies should be free administrative extraordinary be because of shall excused procedure.” fashion their own rules of Ver- 160(e). circumstances.” 29 U.S.C. Nei Corp. Power v. mont Nuclear Yankee in its di exceptions ther 524, 1197, NRDC, 519, 98 435 U.S. S.Ct. rector’s in its for recon nor motion 1202, (1978). 460 55 L.Ed.2d order nor in sideration of the certification bar- deny enforcement of a mаyWe not unfair general its answer to the counsel’s merely pre- we would because gaining order practice opposition nor complaint, 70 result, Industries, even

fer another because we workers. be Season-All Inc. lieve could be sup (3d Cir.1981) (Ad- that the NLRA read to 654 942 F.2d port contrary ams, to that J., a conclusion adopted dissenting). years Almost four Rather, we are by the Board. mandated to have now since the passed employees the Board so long enforce orders of as “the ARA sought to avail themselves of ..., while may Board’s construction right bargaining guaranteed by to collective Act, is at required by permissi least the National Labor Relations Act. Given ble v. Transportation under it” sparseness challenge the factual — —, Management Corp., U.S. independent the fact that an 2469, 2475, (1983), 76 L.Ed.2d 667 S.Ct. cit augment disclosed the unverified nothing Weingarten, NRLB v. 420 U.S. I employee, join statement of one decline to 266-67, 959, 968, 43 L.Ed.2d 171 S.Ct. in an would make al- endeavor that v. Erie See NLRB Resistor Corp., ready process ‍​​‌​​​​​‌‌‌​‌‌​‌‌‌‌‌‌‌​​​​​‌‌‌​​​​‌‌‌‌​​​‌​‌​‌‌‌‍any pro- cumbersome more 221, 236, S.Ct. U.S. courts Appellate tracted. must be mindful (1963); L.Ed.2d Giacalone v. legal capacity of administrative Cir.1982). (3d delay statutory rights to frustrate af- forded under the NLRA. colleagues,

My dissenting particularly opinion, section III A their seek to substi- GARTH, Judge, dissenting, Circuit with tute the summary judgment standard HUNTER, BECKER, whom and WEIS Cir- drawn of the from Rule 56 Fed.R.Civ.Pro. cuit Judges, join. discretionary for the approach NLRB’s to of this evidentiary hearings nature. Such a I agree opinion cannot with the announc- standard a full require would evidentiary ing judgment of the court for at least hearing whenever colorable a claim of an First, major two opinion reasons. is election interference raised before the gives no to the that all recognition principle Board. The amended regulation, Board’s to elections, elections, representation including which great the dissent ascribes importance, shоuld be under laboratory conducted condi- provides only regional that the NLRB’s di- possible,”1 tions —“as so that nearly ideal rector “may act the basis of upon an admin- a free and may make fair choice istrative investigation upon the record of of a bargaining if representative they de- a hearing before a officer” and that cases, sire one. Thus it discounts those such to discretion is left di- decisions, including the Board’s own which rector’s determination whether the allega- have set aside elections where employees tions “raise substantial and material factual subjected have been to fear and intimida- 102.69(d) issues.” 29 C.F.R. In § Second, Gibbons, tion. Judge in announc- here, the situation there is no claim that the court, opinion ascribes to alleged by threats were made the union or Congress an to permit Regional intention representatives, Directors, Board, and then an almost makes clear that neither union nor its unreviewable in the determina- discretion representatives involved. were objections tion of raised to an election. The

Although opinion compounds by that error to frequently failing serve a hearings useful give a purpose, requiring hearing regard- proper recognition Board’s own less regulations setting promotes failing factual to announce by undue delay in the at the standard process discretionary administrative which deter- expense of of choice of the freedom minations be measured.2 viewpoint 1. Monmouth Center her Medical v. assertion that from as the Com- (3d Cir.1979). pany of observer the conduct the Union observ- gave impression er her the the election disagree Judge disposi- 2. I do not Gibbons’ with Union-controlled, agents was and the Board Company’s Objection, predi- tion of the second negate impression. Her never acted to upon employee cated Jane statement specifiс statement refers to misconduct Colavito, Company In observer. essence agent or either the Board the observer. her statement to no more than a bare amounts Woodruff’s objections respect A. on its vote. to me that crucial It is clear Woo- that, he opinion, states Judge Gibbons’ pro-union two druff’s statement —that repealed regulations under now spokesmen threatened him with violence NLRB,3 required Board to hold a for the and retaliation unless he voted un- hearing even if “substantial and material material ion —raised “substantial and issues This is factual issues” exist. so even if which, believed, of fact” would warrant the issue turns on credibility resolution of setting aside the election as a matter of determinations of the witnesses for the con- Further, apply law. if I were to even testing That parties. principle ignores the superseded now regulations existence at here, fact the election results issue filed, the time ARA’s I turned upon alleged one vote and conclude, the basis of only could irregularity involved threats of vio- opinions ap- reasoned of other courts lence and retaliation. peals, previous this court’s including deci- principles I that under the believe enunci which accepted sions have been relied Supreme Bradley ated Court circuits, upon by other that ARA enti- Board, Richmond School U.S. tled to a respect Woodruff’s 2006, 40 (1974) S.Ct. L.Ed.2d 476 and United charges. (5 U.S.) Peggy, States v. Cranch Schooner opinion Because Judge Gibbons’ fails to (1801), we are L.Ed. bound force, regulation adopts apply now apply regulations the revised repealed standard the now review of appeal, require case still on with the regulation are inconsistent disputed, when factual issues (see infra) interpretation rather own n. 5 and in- Septem than those in effect before that, adopted ber I also believe consistent with that pursuant 102.69(d) (1982), appeals, incorrectly C.F.R. and the fair courts concludes clause, did not process ness of the due that Woodruffs statement raise requirements ARA afforded material factual issues” hearing should have been a “substantial and disagree disposition investiga- Nor I with the the on the an administrative do of basis of or, Regional attempt appears claim there had been an tion if to the Director to bribe employee, Frank Smith. material factual issues one The record substantial and which, seriously of his reasonable that even Smith did not take exist discretion, in the exercise discloses may appro- representation more the that “if ... he determines voted for [he] hearing, priately he giving be a shall the ... the Union would be resolved after Union [him] birthday gift.” a issue and be served on a cause to Thus, reveals, my principal hearing notice of said issues before a as the text disa- on greement hearing Judge opinion with Gibbons’ an- officer. judgment nouncing 102.69(d) (1981). of the court is its 29 C.F.R. § 1981, Company’s major Objection, 14, September treatment of the Effective the Board “re- officers, Union, by agents, sup- procedural that “the its stated and its rules “to clarified” porters, adherents, investigations parte threatened make clear that ex are not physical against with harm ... if voted be used and material to resolve ‘substantial ” representation issues,’ .... particularly where the factual factual 45,922 Fed.Reg. credibility.” turn 46 issues on regulations 3. The at the in effect time ARA 15, 1981). provides: (September rule now The objections provided, perti- Services filed its issuing objections report or In chal- a on part: nent both, lenged ballots, following proceedings or 102.67, days tally 102.62(b) issuing or in a Within of has under or §§ 5 after ballots ballots, furnished, challenged any party may objections been decision or file with the both, objections following proceedings § under 102.- director ... to the con- or 67, affecting Regional act Director on the duct of the election or conduct election, which basis of an administrative or results of the shall contain upon hearing before a reasons of a short statement of the therefor. record Upon 102.69(a) (1981). filing be 29 officer. shall conducted C.F.R. Such § respect objections challenges objections, Regional or with those Director was required investigate pre- which the Director concludes raise pare report issues. Board. 29 substantial and material factual for the C.F.R. 102.- § 69(c) 102.69(d) (1982). (1981). prepared could That be 29 C.F.R. 72 Reisner, Thorpe to the union v. respect Housing Authority

with status 268, Durham, 518, 393 89 S.Ct. Fusco, respect City U.S. independently, 474 (1969), Supreme 21 L.Ed.2d Court threats, made, actually to whether the Peggy that the rule of Schooner plain made atmosphere rendering of fear created an “where the applies equal change force impossible, deny I en- fair election would by an agency acting is made administrative the Board’s forcement to order and remand authorization.” pursuant legislative hearing. It evidentiary the case for 282, supra, 393 at 89 at Thorpe, U.S. S.Ct. joined I have not these reasons Thorpe 526.4 also for the proposi- “stands opinion Judge announcing Gibbons’ even law intervening tion that where the judgment court and dis- respectfully explicitly it is to be does not recite sent. cases, given it is to be applied pending recognition Bradley, supra, and effect.” I. 715, Applying 94 at 2018. U.S. S.Ct. in Thorpe the standard enunciated to the A. case, it to me present is manifest that we ago, Over 180 Chief Justice Mar- years apply must in effect regulations that: explained shall September 15, 1981, as after amended.5 to the and be- subsequent judgment [I]f court, appellate fore the decision B. and positively changes law intervenes The Board itself us with an provided has governs, rule must be law interpretation regulation amended obligation its obeyed, or denied. 102.69(d) This (1982).6 interpreta- C.F.R. § Peggy, United Schooner Cranch States tion was made so as to make the Board’s 110, (5 U.S.) L.Ed. 49 application regulation consonant with has Supreme never Court deviated from of appeal. that of various courts Ash, See Cort v. teaching. 422 U.S. stated that: 74-77, 2086-87, L.Ed.2d 26 95 S.Ct. In N.L.R.B. v. Manufacturing Claxton (1975) is to (a apply court the law in effect Inc., Company, 103 LRRM decision, at the time it renders its unless (5th Cir.1980), court held that doing injustice so would result in manifest process requires due that a or there statutory legisla- is a direction or losing party when the files evi- conducted tive history contrary); Bradley v. that, facie, raises prima dence substantial Board, Richmond 711- School U.S. material would issues that warrant 716, 2006, 2016-19, 94 addition, S.Ct. 40 L.Ed.2d 476 setting aside the election. (1974) in the law (change given must the court held that the objecting when effect unless there was a clear indication right had to a hear- party established a that it to apply pending cases). was not in the ing, Regional “investiga- Director’s Thorpe Housing Authority City that, although 4. In Supreme the of of the Court held circular Durham, 268, 518, U.S. effecting change 89 21 L.Ed.2d S.Ct. the indicate it did not whether (1969), Department Housing the applied pending was to be cases or to to events Development (HUD) pro Urban ordered new issuance, was, transpired prior that had to prerequisite cedural for an eviction after it had nonetheless, applied anyone residing to be in to order, secured a state court eviction affirmed housing project promulga- date of the on the by Supreme the Court of the State of North Thorpe, supra, tion. 393 U.S. 89 S.Ct. Following by Carolina. a remand the U.S. Su at 526. preme proceedings Court for such further light directive, of the new court ad state Indeed, fashioning changes 5. these to the hered to its decision. It since held that regulations, them the Board described as no prior critical events had occurred to date of than a the rule then cur- more restatement of circular, rights of the had “[t]he 45,922 rently Fed.Reg. (Sep- in force. See 46 matured and had been determined before the 15, 1981). tember Authority Housing directive issued. City 468, 470, Thorpe, of Durham v. 271 N.C. supra note 6. See (1967). review, Upon 157 S.E.2d Regional was not a substitute which the Director concludes objections tion of the hearing may not be denied on substantial and material factual is- for it. The raise ex of new information obtained 102.69(d). the basis sues.” Section Regional Director.” parte by proceeding, supra, In this as noted Director Regional added that court Employer supplied has affidavits to the relevant informa- “must make available Regional Director which show that an inves- tion discovered in the course of his the victim of a threat on employee was the extent tigation, at least to [an purported his life from someone who to him objecting party] pointed has toward representative be a International. it, party whether it favors the successful came sometime after asserted threat objector regardless or the of whether expressed support the victim his for the objector’s it was referred to affi- his fellow Al- Employer employees. to up davits or is turned independently though suggests only the record two the investigation.” son, Miller employees, unit and his Claxton, opinion Due in to the part have known about the threat before supra, and other similar court decisions election, in the the Board has held it, proce- like the Board reexamined its threat, life a reality of industrial serious disposing postelection objec- dures for though single to a will employee, made tions to the conduct of elections. On affect the selection 15, 1981, September the Board amended inevitably a union as it will be discussed Regulations its Rules and at 29 CFR Sec- case, by them.3 In this we find that the pertaining pro- tions 102.68 and 102.69 record inconsistent statements contains applicable disposition objec- cedures respect to the circumstances sur- tions to an Therein the election. rounding alleged threat. The resolu- the courts acknowledged criticism Regional tion of these conflicts hearings failure to hold requires improper Director was when, in objections in a situation proceeding we remand this for further courts, opinions the “substan- shall remand hearing.4 Accordingly, we tial and material factual issues” stan- proceeding Director Regula- dards of the Board’s Rules and him on the Em- arrange required tions it to do so. The revisions ployer’s Objection 1. Regulations in the Board’s Rules and Inc., Stencils, 1109, 79 General 195 NLRB investigations make clear that ex parte LRRM 1608 are not be used to resolve “substantial Inns, Inc., Anchor Inn See Anchor d/b/a particularly material factual issues” Croix, St. Hotel of 106 LRRM where the factual issues turn on credibili- Manufacturing, (3d Cir.1981); Claxton supra. ty. Rather the rules specifically provide Co., Erie 261 N.L.R.B. No. “shall be conducted with Coke & Chemical Therefore, those 1374.7 respect challenges L.R.R.M. Circuit, in NLRB v. Claxton Manu- will underlie a future unfair 7. The Fifth and fact which Co., facturing Congress’ pre- (5th Cir.1980) practice 613 F.2d 1364 also labor determination. tradition, right hearing, process sense of due concluded that to a sumed Constitution, sup- thus face of “substantial and material factual is- the command of the adversary hearing required by process ports principle sues” was also the due id., 1365, point process See 1366. at some in the clause. 613 F.2d at Other must be held appeal genuinely conclu- are courts of have come to the same contested factual issues where regard regulations properly to the in existence sion with raised. Electrical, Thus, 15, September Union of Radio and Circuit International before NLRB, writing 1191, Judge Skelly Wright, for the District Machine Workers v. J. 418 F.2d also Pinetree Trans- (D.C.Cir.1969); that: see Columbia Circuit concluded 1196 740, (9th portation Co. v. 744 686 F.2d Regional Director’s and re- Cir.1982); Louis-Allis v. 463 F.2d Co. adversary prоceeding adju- port or is not an 512, Cir.1972); v. (7th NLRB Commercial sense, yet may it dication in the usual Letter, Inc., 109, Cir.1972); (8th 455 F.2d of fact or mixed law crucial issues determine that, conclusion under the Thus the outlined Gib- Judge analysis by Judge Gibbons’ case, has a unreviewa- Regional given virtually law in this bons first applicable ble status to the determinations of the Re- deny hearing Director could a even in the Board, second, Director and the gional face of “substantial and material issues of approving discretionary in this two-level re- fact,” must fall. As Board itself has view, provide any has failed to standard clear, made under the 1981 amendments8 to granted which the unbridled discretion regulations, Regional could Director Board, may Director and the Regional not resolve the factual conflict without an be measured and thus reviewed. Such adversary hearing po- between the Union’s pre- status is at variance with the tests hand, sition Company’s on the one and the appeal, scribed other courts of and in- Objection and Woodruff’s statement on the deed, by notwithstanding this court the ex- other. A hearing required is whenever the Judge opinion. forth in position set Gibbons’ objecting party establishes the existence of just preceding As I have in the explained factual of a disputes substantial and mate- section, not, even the Board itself did which, favor, rial nature if resolved in its not, either the presently would claim for setting would warrant aside the election. itself, Regional very gener- Director or which the discretionary ous determinations II. majority granted has now to each of them. Indeed, very it was the standard which the A. announced, various courts that led appeal Even if the in regulation force at the clarify procedures Board to its own time that objections ARA filed its election the .1982 and those regulations procedures, govern case, the resolution of this it noted, as we have did no more than restate plаin is to me that a hearing required principles inherent Board’s earlier in this ease because “substantial and mate- regulations. rial issues of fact” were ARA. raised Judge opinion Gibbons’ has construed B. 102.69(d) (1981) C.F.R. to allow the Re- § gional standard, Director to hold no more than an ex obtaining evidentia- parte inquiry in the broad ry hearing challenged, exercise of his where an election is discretion, even where “substantial and ma- explained by Ninth and Fifth Cir- terial” appear. Moreover, cuits, issues opinion his of the standard ad- representative would establish the Board’s discretion as hered to in the other circuits.

the scope of Regional Inc., (9th review over the Di- Systems, Advanced 681 F.2d 570 rector’s Cir.1982), exercise of his discretion. explained the court that: Co., (4th

NLRB v. Bata Shoe under the I Board’s clarification to which have Cir.) denied, text, cert. 389 U.S. permissible S.Ct. even referred was not f(1967). L.Ed.2d 265 then for such a to be denied. having adopted procedure significance amending The Board itself regula- 8. The the 1981 (29 102.69(d) (1982)) requiring tions so as to delete CFR an evi- § the clause “in the exercise dentiary hearing of his reasonable discretion” should not be in circumstances such as are regulation longer here, presented overlooked. The 1982 car- we do no more than insist that “discretionary” ries forward the clause found to its own internal rules of adhere regulation, in the 1981 but substitutes the re- Thus, contrary suggestion procedure. quirement shall be conducted “[a] concurring opinion Judge Adams’ found respect challenges to those not, 1), (typescript requirement does which the Director concludes raise view, any my principle found in offend Ver- substantial and material factual issues.” 29Cf. Corp. v. mont Yankee Nuclear Power Natural 102.69(d) (1981) 102.69(d) C.F.R. § Council, Inc., Defense 435 U.S. Resources (1982), Thus, supra. n. 3 even under 1197, 1202, 98 S.Ct. 55 L.Ed.2d 460 regulation the Re- discretion vested with Corp., See NLRB v. Permanent Label gional deny Director to where sub- J., 512, Cir.1981) (3d (Garth, concurring 532 еxisted, stantial and that material factual issues dissenting). and available, longer discretion is and indeed no

75 NLRB, Manufacturing Co. v. hearing, must make a 645 F.2d 506 party To obtain a a (5th Cir.1981) the court that: explained showing substantial prima facie of circuit, it is that when an In our settled would, if material factual issues Springs as makes objector Hickory true, setting aside the elec- warrant prima a case its by out facie affidavits If, however, .... there are substan- tion grant hearing Board a must disputes tial material factual be- that one is unwarranted conclude excep- tween the election and the up by matter turned the re- “considering tions, hearing a is required. director, ... gional weighing relative at 572. Pinetree Transporta Id., 681 F.2d making ‍​​‌​​​​​‌‌‌​‌‌​‌‌‌‌‌‌‌​​​​​‌‌‌​​​​‌‌‌‌​​​‌​‌​‌‌‌‍credibility ... factual data and NLRB, tion Co. v. (9th F.2d 740 Cir. 686 N.L.R.B. Claxton v. determinations.” that, 1982), “[b]y mean noted ‘material’ we Co., Manufacturing [supra, 613 F.2d at objecting par offered facts 1373], true, if as must ty, accepted warrant Id., Acknowledging F.2d that a 645 at 508. party favor conclusion in on every hearing required is not in case Id., validity issue of the election.” validity objec determine of election Inns, v. Anchor Inc. (citing tions, F.2d hearing 686 at 745 concluded that no is court if all NLRB, required “where the facts contended (3d Cir.1981));9 644 F.2d 292 see party ‘were objecting credited NLRB, v. May Department also 707 Stores is shown which would warrant set ground 430, 432 (9th Cir.1983); Scintilla Power F.2d ” Birmingham Or aside election.’ ting NLRB, Corp. v. (9th Cir.1983); 707 419 F.2d NLRB, v. 661, namental Iron Co. 615 F.2d Manufacturing NLRB v. Eskimo Radiator v. NLRB (5th Cir.1980), quoting part 663 in Co., v. NLRB (9th Cir.1982); 688 1315 F.2d Co., 821, Bata Shoe (4th Cir.) F.2d 826 377 Belcor, Inc., 856, (9th 652 F.2d 858-859 Cir. cert. denied 389 U.S. 917, 238, 19 88 S.Ct. 1981). v. Polyflex See NLRB 265 L.Ed.2d Circuit, applied The in the standard Fifth Co., Cir.1980); EDS- (5th 622 F.2d 128 announced in Glaxton su- Manufacturing, IDAB, NLRB, Inc. v. (5th 666 F.2d 971 pra, is almost to that in Industries, Inc., v. applied identical Smith Cir.1982); Hickory Cir.1968).10 Springs 889, (5th the Ninth F.2d This Circuit. court, 1970); Electrical, May Department 9. see International Stores NLRB, (9th Cir.1983) NLRB, explained 707 F.2d 430 Radio and Machine Workers v. 418 F.2d 1191, (D.C.Cir.1969) (the that: Board is re 1196-97 quired to hold a where substantial fac “question apply some circuits law” raised, where, “especially tual issues are review rather than an “abuse of discretion” here, relitigation does not Board allow context, is, review). largely in this This] validity of the election refusal circuits, semantic difference. court, like our Other follow”). bargain proceedings which unlimited, significant, give but not def enunciated in the Second and standard See, e.g., erence to the Board. NLRB v. Clax analogous closely 1365-66, Fourth Circuits is Co., Manufacturing ton 613 F.2d Inns, adopted by court Anchor Inc. v. our dified, (5th Cir.1980). 618 F.2d 396 mo Cir.1981) (3d 644 F.2d “[D]es Id. at 432 n. 1. given pite appropriately the broad discretion that, representation apart position It the NLRB in the conduct of tions, elec seems from the taken Judge opinion, accepted the case that a his it is ... it is nevertheless Gibbons Director, if, by prima party that the or the must is to a facie entitled evidence, objections pro- hold ceedings to election it demonstrates the existence of ‘sub which, raise substantial material stantial and material factual issues’ which, true, favor, require setting factual issues if taken as would resolved would setting representation warrant aside election. aside of the election.” NLRB v. Co., Spring Manufacturing Bristol F.2d Thus, District of Circuit has Columbia (2d 1978); NLRB v. Lance 706-707 Investigation Cir. see also “hearing held be held that a must when Service, Inc., (2d1 680 F.2d Cir. factu raise ‘substantial and material Gear, Inc., 1982); Nixon NLRB v. al issues’ which cannot be resolved on the basis (2d Cir.1981); NLRB v. Hale Manufactur of administrative without a hear 1979). (2d ing Corp., “A hear Cir. ing.” Amalgamated Clothing Workers unnecessary if all the facts ... where (D.C.Cir. America v. 76 Letter, Inc., 455 F.2d v. found NLRB Commercial the the same as standard is

standard 109, Cir.1972) (footnote omitted Inns, (8th 114 See, Anchor e.g., in our own cases. the Cir supplied). As Second emphasis supra. Spring in NLRB v. Bristol explained cuit a standard that adopting for The reasons Co., Manufacturing (2d 579 F.2d 704 Cir. Regional or the requires either 1978): substantial hearing a when Director to hold is clear. hearing right this purpose have issues are raised material factual permit- discovery limited very Given the the courts: by been well stated only it is when type, in cases of this ted in the certi- hearing granted a been Had to intro- opportunity are an parties given as it would have sufficed process fication witnesses and examine duce evidence opportuni- have had an parties would an in the conduct of improprieties However, ty present to evidence. in the case be revealed. As election deny hearing, to under decision summary judgment pursuant grants Di- Regional followed procedures manifestly 56, it would be to Fed.R.Civ.P. rector, an administra- represent does not entry judgment unjust permit issues, but can adjudication tive case, of an (or, this the enforcement be called a determination disputed when issues only order), NLRB settled. remain to be litigation Director to foreclose material fact point at that time. At some of the issues Id., Indeed, the need for a at 707. 579 F.2d process employ- in the administrative in cases like acute hearing particularly is opportunity er is entitled to have close, depend- one, where an election which he relies and present upon evidence vote, minor mis- “and even just one upon which the the evidence question summarily excused on cannot be conduct relies, and to submit this evidence have influenced that it could not ground Supply Henderson Trumbull the Board and this for consideration the election.” NLRB, 2, 1224, F.2d Corp. Region v. set 501 proceedings court to enforce or Where, here, (2d Cir.1974). 1230 order. aside the Board’s evidentiary hearing request be objecting party can er’s for for ‘were contended by prima only ground granted if “shows facie evi war credited no is shown which would ” material setting of substantial and v. Bata dence the existence rant aside the election.’ NLRB favor, which, Co., 821, Cir.), disputes in its (4th if resolved cert. factual Shoe 377 F.2d 826 setting denied, 917, 238, require of the election.” aside L.Ed.2d would 389 U.S. 88 S.Ct. 19 Whitney (quoting part Museum of (1967), quoting part NLRB v. v. Air 265 NLRB Control Cir.1980)), 19, 245, Art, (2d Inc., Petersburg, 23 636 F.2d 335 F.2d American Products St. ce 1150, 1016, denied, 1964); 71 (5th Newport U.S. 102 S.Ct. News rt. 454 249 Cir. see also NLRB, Dry Shipbuilding L.Ed.2d 304 v. 594 & Dock Co. announcing judg today’s opinion (4th 1979). Prior to F.2d 8 Cir. court, v. adopted this court stated in NLRB ment of the circuits have similar stan Other 1966), Co., (3d Co., Inc., Drug that: Fuelgas 408 Cir. Sun 359 F.2d dards. NLRB 529, 674 F.2d v. if (6th Cir.1982); entitled to such are 531 NLRB v. Tennessee Packers, Inc., Division, issues are Frosty material factual F.2d substantial and Morn 379 raised, clearly 172, denied, erred in (6th Cir.), if the Board has U.S. 177-78 cert. 389 Katz, 703, denying be en- (1967); its order will not 705 701 F.2d v. clear, however, equally 1983) (Board’s (7th It is can stand forced. Cir. determination required support if no such only will not if there is substantial evidence existed, Company either because failed to dem issues the conclusion that the overturning assumed the prima and the Board have director onstrate a facie case for objecting [i.e., Company’s allegations factual offer of the truth of the that] reasonably con- sufficient, credited, party, have or because result in over alleged not con- would turning election.); Welding that the facts Metal cluded Bauer & setting 314, justification elec- NLRB, legal stitute Fabricators Inc. v. 676 F.2d Inc., Stores, (8th Cir.1982); Target tion aside. NLRB v. Inns, 414; Id., compare Inc. (8th Cir.1977); Anchor 359 F.2d at NLRB v. F.2d Cir.1981); (3d Oldsmobile, Inc., 644 F.2d Griffith 868-869 Department, 623 Co., Campbell (8th Cir.1972); Products NLRB v. Seal Inc. v. Crown Cork & Cir.198f0). (3d (10th Cir.) (Petition- of discretion grant which that broad by is based Director’s determination Regional in future that Reisner reviewed. Thus may the determination be tested or in on part Woodruff, and that exercises, Fusco were credible the Board’s determinations where not to be employee, denied, was the threatened courts to be enforced or sought are of affidavits sub on the basis believed contained analysis find the undoubtedly will me that it is clear to parties, mitted announcing judgment opinion re fundamental fairness considerations unworkable, which and one the court to be op Company given quired inconsistent and ir- inevitably will lead to to subject Reisner and Fusco to portunity decisions.11 panel reconcilable rigors of cross-examination.” cleansing “the Co., Manufacturing NLRB v. Winburn Tile C. 44, 47 (8th Cir.1981). NLRB v. See F.2d then be asked: if a The must question Co., (3d 359 F.2d 414-415 Drug Sun alleged by the facts hearing had established Inns, NLRB, Inc. v. Cir.1966); Anchor Woodruff, the Re- or if Company Cir.1981); v. Ten (3d Division, those facts as Packers, accepted Director had Frosty gional Inc. Morn nessee Cir.1967). true, challenged conduct warrant (6th 177-182 would the 379 F.2d This an- the election aside? court setting Moreover, in de- Judge opinion Gibbons’ in a unequivocally that question swered established from the standard parting Company in which the opinion recent Inns, cases, Co., (Sun Drug Anchor prior our harm to physical claimed that threats Campbell Depart- Products and NLRB representation election. voters tainted ment, (3d Cir.1980)) and 623 F.2d possibility We held that if a substantial courts, parameters no for provides to an em- threats were made existed which it claims is vest- the broad discretion the free and poisoning thus ployee-voter, Director and the Board. Regional ed in the is entitled to employee fair choice which an opinion identify any principles does the Nor Quoting attempts explain of fact. Judge opinion stantial and material issues to Gibbons’ Products, Campbell supra, in from our decision Anchor Inns and Season-All our earlier cases of explained Cir.1981) (3d that: the Anchor Inns court 654 F.2d 932 Industries v. evidentiary was, party hear- declaring practically to an unstat A is entitled that it for objection reasons, raises substantial and where its in those an “abuse of discretion” ed corollary, As a of fact.... denied material issues Director to have cases necessary hearing. hearing evidentiary where the Board as- objecting is an the Typescript contentions, party’s However, prin I can find no sumes the truth at 29. that, cipled way distinguish of law as- of Anchor as a matter the facts and then rules Inns, challenged alleged, Judge suming an con- claims that it was facts where Gibbons deny hearing, setting from aside the elec- abuse of disсretion duct does not warrant opin case, Judge where Gibbons facts of this tion. Inns, supra, the Board did not abuse dis at 296. More- ion finds that Anchor evidentiary by failing over, ARA an than cretion afford court did no more the Season-Ail infra, objections. hearing Campbell Part III. See Prod- apply on its out in the standard set Inns, evidentiary required determining an Anchor hearing, Anchor Inns ucts Division and analyze rely upon required not evidentiary does even was that an holding. discretion as the basis for its that case. holding attempt to read that case as significant in all three cases—An It is wholly applied, Season-All, abuse of discretion standard Inns, present an case—at and the chor analysis. holding Anchor Inns distorts the question found: was the is least one common employee’s responsible for an seeking Judge opinion, recon- Gibbons’ Thus, alleged by employer? analysis misconduct as present re- Inns with his cile Anchor Season-All, an evidentia Inns and in precise in Anchor re- is cites: spect not “[Anchor Jims] required the Union review, ry to determine scope of our but should company employee: in An Victor status of a the abuse of dis- be read as inconsistent with Inns, The three apply Type- in Season-All. chor and Sadler we in this case.” cretion standard script indistinguishable. is as ARA cases are thus forth in those at 29. The standard set evidentiary hearing to de however, cases, entitled to clearer. much could not have been Fusco, of Reisner and quite “precise- status termine the union Inns stated The court Anchor employers in employees, evidentiary as were two ARA ly” the courts will insist objection Anchor Inns and Season-All. party’s sub- raises when make, must be the election set aside and the threats affected the outcome of the election, holding new election held. so we stated: a new election must be held. Collectors, holding representation Zeiglers Refuse Inc. v. purpose (3d Cir.1981). electiоns 1004-05 provide whereby means fairly workers freely choose D. bargaining representative their if indeed Therefore, only I can conclude that they want one. See NLRB v. A.J. Tower Co., we set out in Drug Camp standard Sun Co., 324, 324, 327, U.S. S.Ct. [67 Department, bell Products and Anchor 91 L.Ed. A representation 322] Inns, is the only appropriate standard to be election should be “a in which laboratory denials of applied reviewing evidentiary conducted, an experiment may under hearings pursuant regulations to the in ex nearly possible, conditions as ideal as September istence before 1981. Conse determine the uninhibited desires of the quently, it is manifest to me that ARA was employees.” Corp., General Shoe entitled to a if it raised “substantial (1948) quoted in Mon- and material factual issues” before the Re NLRB, mouth Medical Center v. gional objections, Director in its or before (3d Cir.1979). The Board has an exceptions the Board in its to the Regional obligation to insure that an election is Director’s under the report regulations as held “under such conditions as will be 15, 1981, prior September existed conducive sort of free and untram- after that date. As the discussion below meled choice representatives contem- plain, makes ARA raised such “substantial plated by the Act.” Methodist Home v. and material factual issues” before the Re 1173, 1183(4th Cir.1979). gional allegations, Director. ARA’s factual ... Not every election that fails to believed, setting would warrant aside the achieve perfection aside, should be set grounds election on the that threats of vio otherwise the employees’ rep choice of a lence had Zieglers tainted election. resentative might never be accomplished, Refuse, such, supra. As Board was because a never-ending series of chal required to have afforded ARA an eviden- lenges to elections could be foreseen. tiary hearing on its with respect Though wе are reluctant to accept less- to Woodruff’s vote. than-perfect conditions in the election process, so, we will do only but where no III. coercive conduct has poisoned the fair the certification During proceedings in and free choice which employees are enti here, election, question objected ARA to the Hence, tled to make. extreme care must claiming conduct which coerced employees. be taken that the laboratory conditions It supported objection by a statement have not become so employ tainted that Woodruff, of an employee, Kevin which ees have based their upon vote not was filed with the Director. conviction, upon but fear or upon any other improperly induced consideration. In its application enforcement The Board and the empha courts have that the Regional contends Director sized that the existence of coercive at alleged assumed the truth of the facts as mosphere, ARA, regardless of how such an at objection and that ARA’s and Woo- about, mosphere came is the critical fact druff’s statement did not a prima establish upon which the Board should focus in facie setting case which would warrant determining whether a fair and free elec- aside the election or would entitle tion impossible. was hearing. According Board, Diamond State ARA to a Co., Poultry (1953); 107 NLRB 6 physical alleged Cross threats of harm Baking Co. v. prima 1348 ARA did not establish a facie case (1st Cir.1971). Thus, if it is determined since there was no evidence that the em- that a possibility charged intimidating substantial existed that with the con- ployees him, stating that threat made after or acted agents were Union duct disclosed opinion announc- had learned Woodruff had the Union. The Reisner behest of accepted the court has to a judgment camрaign supervisor.” letter union arguments uncritically. these at 6. Typescript report concluded Regional Director’s A. suffi- statement was not that Woodruff employee statement of The handwritten objection because support cient ARA’s ARA, Woodruff, submitted Kevin as nor made Fusco none of threats part: in relevant

reads could be attributed the Union. Reisner Fusco, pro-un- Enso two Paul Reisner and states: His two occa- spokesmen, ion different investigation revealed that neither sions, voting place, took told before the nor identified Fusco ‍​​‌​​​​​‌‌‌​‌‌​‌‌‌‌‌‌‌​​​​​‌‌‌​​​​‌‌‌‌​​​‌​‌​‌‌‌‍Reissner [sic] with the go along me that I should Union. partisans pre- prominent up”me if I did not Enso said he’d “beat or col- period, neither distributed Paul told me the Union. Reisner join or acted as lected authorization cards I the join back at me” if didn’t “get he’d other Employees election observers.... Union. have [sic], both and Reissner than Fusco dishwasher, Connors, a that I told John having ini- been identified as established me “get had threatened that he’d Reisner Union], distribut- tial contact with [the join me” the Union. back at if I didn’t returning authoriza- collecting and ing, in the election. voted Connors Petitioner, and cards on of tion behalf might back get was worried the Union I serving organiz- as active members an powerful have a Un- they at me because committee.... man, big, guy, tall who ion. The Union nor Reiss- ... I find that neither Fusco vote, would be here for the said there was at agents were Petitioner ner [sic] food, jobs, that all-out strike —no an therefore, herein, and any time material from de- prevented the trucks would be their be held liable for Petitioner cannot able to livering food and no one would be if even made. alleged statements present was when come to work. Fusco (A. 12-13). made this comment. the Union official yes. said to that I better vote Fusco me However, claimed that Woodruff me of the others told Fusco some specific by were “Union threats voiced Union, nobody that if I didn’t vote for allegation was at an spokesmen.” Such or talk me. my would be friend Sue a substantial factual least sufficient to raise was told me with Fusco when he Nicastro Fusco, Reisner and as to the status of issue against if I I’d be a social outcast voted Woo- by identified spokesmen the two also with them. the Union. Duke was Moreover, Objec- Company’s druff.12 3A-35).

(A. that specifically claimed tion “[u]nion ... agents threatened by its officers addition, Judge opinion [and] as Gibbons’ harm” and other physical employees Woo- reports, “When interviewed correctly against the Union. voted reprisals that charge apparently druff reiterated least, the of Reis- Thus, issue very him He also up. Fusco threatened to beat agents Reisner, and Fusco's status that an ner’s upon charge enlarged Company’s submissions.13 chef, at was raised threatened back get assistant evidentiary entitling employer to an 12. In ATR Wire v. 671 F.2d issue & Cable Co. claiming hearing. (6th Cir.1982), employer, F.2d at 190. that propo- employees were harassed “union nents,” representation Regional to a filed also leaves Director’s 13. The Circuit, observing implicit questions that election. Sixth in Woo- unanswered disputed directly identity salient fact that was the Union as to the “[o]ne druff’s statement question agency,” spoke held an all-out strike was who [union] official question present factual Fusco a substantial was when constituted whether official statement, more, without 1. that he Woodruff’s Fusco denied was a Union representative official or authorized readily requirements satisfied the for ob- the Union. taining evidentiary hearing. “In order Fusco, admitting 2. conversations while evidentiary hearing, to obtain an the objec- Woodruff, denied threatening any tor’s must proffer prima of evidence facie co-workers, including Woodruff. setting warrant the election. The aside supported is Fusco’s denial proffer conclusory vague; not be or it employees. unidentified must events point specific specific threatening 4. Reissner denied Anchor-Inns, 297; people.” [sic] F.2d at see Woodruff, he admitted although knowing Transportation also Pinetree Co. revealed Woodruff had union affairs (9th Cir.1982); 686 F.2d NLRB v. to a supervisor advising admitted Co., Inc., Manufacturing Claxton wrong Woodruff to do so. (5th Cir.1980); NLRB v. Nixon acting 5. Reissner denied as a Un- [sic] Gear, Inc., (2d Cir.1981). representative. ion specifically Woodruff identified the “union 6. “Neither nor Reissner Fusco [sic] spokesmen” and the involved threats they prominent union parti- identified as used. He to three referred different occa- period.” sans in pre-election sions and named who were (A. 11-13). present. His statement could hardly be “conclusory vague.” characterized as In- position with the taken difficulty deed, Director, Board, and then the Anchor Inns statement submitted clear findings manifest. It is by the Company merely supported Director, having made been Regional inference that Company employee was a predicated which had upon testimony never agent union was there deemed sufficient to been tested cross-examination which mandate evidentiary hearing. an See An- giving had been without ARA formulated Inns, Season-All, chor at 297. In evidence, adduce opportunity to Inns, which followed Anchor where the the weight findings cannot be accorded Company objected that an agent of the made after in which evidentiary hearing an Union had engaged electioneering out- both For exam- participated. have side the polls, we the employee’s held ple, questions occur to following me: status, having disputed, been could not be Would Fusco’s that he denial threatened resolved without an evidentiary hearing in Woodruff be had Fusco persuasive as been which participate, Season-All could examine subjected to cross-examination? Who were witnesses, present evidence. the employees present were at who action, In the instant the Regional Di- was their testimony? conversation and what rector in his never found that actually say What did to Reisner Woodruff Woodruff, threats alleged by had fact he, Reisner, after had learned that Woo- Rather, not been made. with no input from druff revealing was union affairs to a su- ARA, he found that neither Fusco nor Reis- pervisor? Was Reisner’s denial that he had agent ner was an of the Union and there- “laundered” threatened Woodruff because fore that the could not Union be held liable questioning his was carried out only by for their alleged threats even if made. Nor Regional any Director without other wit- did the Regional Director or the Board ever nesses, Woodruff, including present? What question address the as to whether the Un- were activities or Fusco’s and Reisner’s sta- ion had adopted or ratified Fusco’s and tus with the Who was the union? (see Reisner’s conduct n. 13 supra). The official at the time present who was Woo- Regional Director in his report recites the druff threatened? What claims he was ac- following on which he testimony tions, based his he take to assure any, did Woodruff finding: behind, not the Union was and did not Woodruff, thereby adopting ratifying their conduct. Reisner threatened or condone, the threats pinned the threats made? And what Union for evidentiary Di- can be had. parameters Regional charged, were the revealed that nei- I investigation respect, rector’s In this believe both Reisner un- prominent and, ther Fusco nor were importantly, Judge more Gibbons Region- ion From whom did the partisans? has failed focus on the crucial opinion his to al seek his information? What Director question While there can be no issue. What they they asked? did answer?14 can be set aside where the Un- an election voters, it is ion itself has threatened questions these and the an- Obviously, not be sus- also true thаt election will would impact only upon swers to them not by pro-union employ- tained where threats Reisner’s with the Un- Fusco’s and status ees, agents, who are not union officials or ion, would also Woodruff’s but bear on atmosphere or reprisal create of fear of the threats which he perceptions report- Thus, a fair rendering impossible. ed. Unfortunately, transcript with no question presented by was Woo- ARA, the available for Board or the review- statement, (and was per- druff’s whether he court, the answer these and similar fear present) others could vote free of haps will questions related never be known. coercion in the face of intimidation Moreover, had even Di- Regional alleged spokesmen. two union in de- rector’s been disclosed tail, the issue of findings previously spoken his would still be flawed be- We have weight responsibility cause he had not assumed the truth of union and the nor allegations findings Zeiglers ARA’s were his be accorded. In Refuse Col- should product partici- of a which ARA Inc. v. lectors

pated. allegations ARA’s supporting (3d Cir.1981), controlling we held that statements factual is- presented substantial was factor where fear or intimidation bearing vote, sues on Fusco’s and Reisner’s status charged by about Inns, agents. Union, union See Anchor rather culpability but Director, by failing 296. The held. whether a fair election could be the truth of erred allegations, assume those chal- representation election was Zeiglers, ARA, in resolving the issues raised here, of threats lenged, as it was because so, solely parte where he did based on his ex vot- allegedly prospective employee made investigation, through here, however, instead an eviden- ers. Unlike the situation Inns, tiary hearing. supra. Anchor Regional See Director recom- Zeiglers, held evidentiary mended that B. the claims coercion. on taking after evidence recommended deficiency An even more critical in both officer election, that though Board’s even he found Regional Director’s and the a new could be attrib- allegations, alleged treatment of ARA’s and the none of the threats did not that the Union. The Board endorsement of treatment contained uted to recommenda- opinion, Hearing is the erroneous Officer’s Judge accept Gibbons’ objections, tion, employer’s can be overruled the responsibility that unless assumption ARA, Cir.1982). noted, (9th light previously In of the deficiencies As I have neither Board, adverted, privy just nor we have been to whatever I and in to which have the record may impermissible been reflected in the affidavits or Regional have light Director’s Regional taken Di- other statements factfinding, fact parte I am troubled ex proofs rector. Such were not transmitted relevant did all the the Board not have the Board. upon which Director materials by failing ARA to include these contends ruling. v. his See ATR Wire & Cable based fur- affidavits or statements in the materials 188, Cir.1982) (“[T]he NLRB, (6th 671 F.2d 190 Board, prop- nished to the the Board could not adopting Re- abuses its discretion erly Regional Director’s consider or rule on the gional Director fails to Director’s if the e.g. Divi- determination. See Wire Prestolite upon to the Board all the evidence transmit NLRB, Cir.1979); (6th sion F.2d v. 302 relies). the Director Inc., Systems, 681 F.2d v. Advanced 168, the Union which had prevailed and certified allegations of coercion sup- challenged election. porters and adherents a hearing warranted employer’s objections election.) We ordered the election set aside and Foods 639 F.2d at Cir.1967). Accord Methodist Home v. the threats were attributable to the Union. denied the of the record which disclosed that none of ment. responsibility one of many factors that the Board must appraise in determining whether a fair and free election was itself rather than to thе rank and file election is hereby rendered impossi- such conditions existed and that a free ble.’ ment shown to be attributable to the union once “We are not [W]e ^[*] In ” said, do not find the factor of union doing NLRB, that all coercive acts must be supporters. ^[*] ‘The important to be so, impressed we ^[*] quoting Home Town petition pivotal. addressed the aspect impossible.... As the Board has ^[*] with the argu- (4th for enforce- It merely fact is that ^[*] Cir.1979). (5th ^[*] itself has held that responsibility (emphasis added). gaining representative. such conditions existed and that a free fear it was not. The election was held in such employees and that their conduct cannot representatives the election was conducted under such be attributed either to the Employer or to created by untrammeled choice of contemplated by the Act. We hold that a general atmosphere of confusion and circumstances and under such conditions the unions. The important as were conducive to the sort of free and Finally, that the fear and disorder The issue before the Board is whether rational, reprisal we individual is uncoerced selection of a bar- thereby emphasized as to render impossible dispositive. the factor of union rendered impossible. It is not material fact have and non- is that been 1006, quoting 639 F.2d at Diamond State addition, quoted we with approval Poultry, (1958) (footnote 107 NLRB from Chief Judge opinion Aldrich’s in Cross omitted). Baking Co. v. (1st Cir.1971): Zeiglers Since we have again reaffirmed question, however, is not the culpa- union, bility of the but whether an atmo- establishing maintaining [I]n sphere of fear and coercion was created “laboratory conditions” conducive to an in fact. It does not follow fear election, no conduct disruptive or destruc- would be less effective if it had an unoffi- tive of the exercise of a voter’s free Indeed, cial origin. we can visualize situ- tolerated, choice can be regardless of ations where it might be more effective. whether the actions are those of a union If union instigated violence, officials anti- agent or a mere employee. union employees might gain adherents to Season-All, 654 F.2d at 940 rid, (emphasis add

get all, once and for of a belligerent ed). I find it union difficult to believe that by voting it, against whereas if the atmosphere join was members of this court product who the instant of co-em- ployees, the opinion rest of the employees announcing judgment of the might feel they were going court, to be left reject with a intend to the fundamental disagreeable situation whatever should election, principle of a free and fair by happen election, and hence had sweeping statement that “[a]nything in the best learn to live with it. Season-All which opinion suggests that it announces a 639 different standard of review F.2d at 1007. See also NLRB v. Clax ton than we have Mfg., applied 613 in this in banc case (5th Cir.), 1371 clarified, (5th Cir.1980). (Even F.2d 396 must in the future At disregarded.” be though Union won a wide by margin, 277- 68. aced and had cast his vote out of fear

Thus, assuming arguendo even conviction, majority the Union’s finding rather than Director correct Regional When, could be sustained. as is Reisner were not union not Fusco and here, objections case involve an ex- threatening their conduct agents, election, “even tremely close minor miscon- intimidating possibly Woodruff and summarily duct cannot be excused on the tolerated, particu- be could not employees, it could have ground that not influenced a where one vote larly only situation Supply election.” Henderson Trumbull election.15 change the outcome of the could (2d Corp. v. Accord NLRB v. Gear Cir.1974). Nixon C. Inc., (2d Cir.1981). however, that since the Woo- argued, It is druff statement describes isolated incidents IV. involving threatening statements “vague” rights One of the fundamental under it is sufficient by employees mere Labor Relations Act which the National prima argu- a facie case. This establish chargеd is the protecting, ignores prior ment own deci- their employees’ right choose collective set aside on the sions have elections representative, to refrain bargaining by pro-union made employ- basis of threats bargaining from collective entirely, alleged to those in the Woodruff ees similar so I believe that Board has choose.16 See, e.g., Diamond Poul- statement. State recognized right by ruling that sub- Co., (1953) (election 107 NLRB 3 set try material factual must be stantial and issues employees already aside because of an un- Judge an adversary hearing. resolved in told plant ionized in several instances Dia- however, has failed to ac- opinion, Gibbons’ employees vote mond for CIO “or case, in this principle knowledge something happen”); would Sonoco has to furnish a workable stan- also failed Rico, (1974) (election NLRB Puerto dard which future election by set aside when union adherents threatened may be measured. four occasions if other physical violence on Moreover, union). importance, plu- and of a equal did not vote for the case, addition, of re- court in this has rality upheld evidence of few threats of the (decided by election one prisals against employee may representation directed one vote) which, charged, has been “general sufficient create atmo- been has be re- threats of intimidation and sphere by fear and coercion” that warrants infected process. setting by tainting aside an election decided one taliation entire Co., so, It has without the fact of requiring vote. House Meat done See Steak adver- (1973) (election those established charges of union vote sary hearing set two time-tested and tradi- of 4-3 aside when union adherents —our determining “get to “kill” or with em- tional method of truth. threatened even” ployee). Thus, enforcement of deny I would сase, is remand this case my my

Crucial to dissent in this Board’s order would evidentiary hearing that should recognition very margin narrow —one initially which decided the outcome of the ‍​​‌​​​​​‌‌‌​‌‌​‌‌‌‌‌‌‌​​​​​‌‌‌​​​​‌‌‌‌​​​‌​‌​‌‌‌‍ARA have been held indeed, that sub- apparent If had felt men- Director it became election. Woodruff when Moreover, Cross, Citing Baking discharge unlike 453 F.2d 1346 in Cross. Cross action, (1st Cir.1971) argued the Board had had conducted instant against impact alleged threats Woodruff were vitia- Reisner to determine resigned prior repre- ted because Reisner by pro-union employees intimidation reliance on sentation election. employer. Baking misplaced. Cross could not be more company discharged pro-union Cross System, Peoples Inc. v. 16. Gas employee allegedly two others. who assaulted (D.C.Cir.1980). possi- voluntary resignation Reisner’s could bly neutralizing have the as did the same effect material I stantial and facts in issue. dissent respectfully

therefore from

opinion announcing judgment

court.

UNITED STATES of America LOGAN, J.

Patrick Michael Graner.

Appeal of Michael GRANER.

No. 82-5509.

United States Court of Appeals,

Third Circuit.

Argued March 1983.

Decided Sept. notes ployees that election con- being “admitted, however, Woodruff that ducted by the Board and threat of not losing second friends was tak- inwas actual charge voting ar- seriously, bantering en due to the nature of rangements but allowed Union’s des- statement, and further claimed to be ignated observer to appear running to be unsure if himself was when Fusco serious the election process, thereby interfering making imputed the statements to him.” election, with the creating the impression re- apparently When interviewed Woodruff Government was in control charge iterated the that Fusco threatened substantially affecting and the outcome upon to beat him He up. enlarged also election. Reisner, charge chef, an assistant These unverified resulted in an him, get stating back threatened to investigation regional director. See after this threat was made Reisner had 102.69(c)(1). C.F.R. § union learned Woodruff had disclosed a campаign to a supervisor. letter During regional course of the di- rector’s investigation ARA furnished unver- investigation course During the ified handwritten statements by interviewed, three bar- were both Fusco and Reisner gaining employees, Woodruff, unit Kevin making alleged both denied threats. and Frank not, however, Smith and June Colavito. The regional state- director re- The did ment of Instead, Woodruff was tendered in his re- support credibility solve this issue. of Objection No. while that of observes: port Colavito in the mar- quoted revealed that neither Colavito’s statement is were Fusco nor Reissner identified gin.1 specific It refers to no misconduct [sic] pre- prominent partisans as the elec- agent supervising either the Board neither distributed or col- period, election In conclusory tion or the Union observer. authorization cards or acted as lected manner it that from her viewpoint asserts Further, observers. Reissner company as a observer the Union observer to the date of the resigned prior [sic] officiously give impres- acted so employment election and Fusco’s termi- control, sion the election was under Union shortly nated thereafter. oth- Employees agents negate and the Board failed to [sic], er Fusco and Reissner than both director’s investi- impression. having have been identified as estab- gation determined that the election notices lished initial contact with Petitioner [Un- printed by informing ion], collecting re- distributing, voters that the election was under turning authorization cards on behalf of aegis, duly timely posted; serving Petitioner as active [Union] that observers for the were instruct- of an organizing members committee. ed as to their duties and were issued and overt on behalf of Petition- activity Such wore identifying badges during the elec- er such other employees is [Union] tion; agents that the Board also wore iden- generally agen- not sufficient to establish tifying badges; and that both observers cy thereby holding Petitioner re- [Union] scrupulously agents’ followed the Board in- sponsible for the alleged wrongdoings of structions. The Director conclud- regard, without more.2 In this

Case Details

Case Name: National Labor Relations Board v. Ara Services, Inc.

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 27, 1983

Citation: 717 F.2d 57

Docket Number: 81-1701

Court Abbreviation: 3rd Cir.