1 - National Labor Relations Board

128 Thirty-fourth Annual Report of the National Labor Relations Board
2. Circumstances Requiring an Evidentiary
Hearing on Election Issues
Judicial decisions have long recognized that the Board is not
required in every instance to hold an evidentiary hearing to
resolve issues raised by objections to election conduct and challenges
to ballots, albeit the standard as to when such a hearing
is required is sometimes difficult to apply. 2° The Board's Rules
and Regulations 21 authorize resolution of objections and challenges
upon the basis of an administrative investigation unless
"substantial and material factual issues exist which can be resolved
only after a hearing." This standard was discussed by
the Fifth Circuit in Smith Industries, 22 where the court equated
the Board's administrative standard with the constitutional
standard under the Due Process Clause : a hearing is required
where it is necessary to preserve a party's rights, but if there
is nothing to hear, then a hearing is a senseless and useless
formality. The standard, in the court's view, is not unlike that
applied by the court in determining whether summary judgment
is appropriate in a case which would ordinarily go to the jury.
Summary judgment should be granted, the court said, only
when it is quite clear what the truth is ; if an inquiry into the
surrounding facts and circumstances is necessary, summary
judgment should not be granted until the facts and circumstances
have been sufficiently developed to enable the court to be reasonably
certain that it is making a correct determination of the
question of law. Even where the basic facts are not in dispute,
summary judgment may be improper if the parties disagree
as to the inferences to be drawn from these facts. Finally, the
court noted summary judgment is improper when an issue requires
determination of state of mind. Applying this definition
of the standard to the case before it, the court concluded that
the Board should have held a full hearing, since the employer's
objections to the election raised issues of fact such that the
truth was not clear, the proper conclusions of law were not
obvious, and one issue to be resolved in deciding whether to
set aside the election was the subjective effect of the union's
alleged misrepresentations and threats on the minds of the
voters.
Although most cases involve the right to a hearing of the
" See Thirty-second Annual Report (1967), P. 146, and Thirty-third Annual Report (1968),
p. 140.
21 Sec. 102.69 (c).
22 N.L.R.S. v. Smith Industries, 408 F.2d 889.