1 - National Labor Relations Board

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Enforcement Litigation 129 party against whom the regional director's decision falls, one case considered by the courts involved the circumstances under which the party prevailing before the regional director must be accorded a hearing before the Board may reverse the regional director. In that case 23 the regional director had overruled the union's objections to an election, based on alleged misrepresentations by the employer, after an administrative investigation and without a hearing. The union, in seeking review of this decision, alleged facts which the Board found required that the election be set aside. The Board rejected the employer's request for a hearing on the union's allegations on the ground that the employer, in opposing the union's request for review of the regional director's decision, had not substantially controverted them. Following the rerun election, which the union won, the employer filed objections on the ground that the Board's erroneous decision with respect to the first election had affected the outcome of the second. These objections were rejected without a hearing in the representation proceeding, nor was the employer permitted to litigate the issue in the subsequent unfair labor practice proceeding. The court, while recognized that a party seeking review of a regional director's adverse decision must offer specific evidence which prima facie would warrant setting aside that decision in order to obtain an evidentiary hearing, held that the same rule does not apply to the party in whose favor the regional director has ruled, especially where, as here, the regional director has not made findings of fact concerning the other party's allegations, but has merely found such allegations to be insufficient, as a matter of law, to warrant setting aside the election. In the customary situation, where the objecting party is challenging specific factual findings by the regional director, it is properly required to make a preliminary showing that a hearing will not be a waste of time. In the instant case, however, the Board simply accepted the union's allegations as true without requiring the union to present any evidence to support them. If the allegations were to be treated as competent and material evidence under such circumstances, the employer, in the court's view, should have had an opportunity to answer them at some point before the Board's final determination. The court remanded the case to the Board in order that such an opportunity could be provided. The litigability of issues raised by challenges to ballots when the same issue could have been raised at the preelection hearing was passed upon by the Third Circuit in the Howard Johnson 28 Bausch & Lomb v. N.L.R.B., 404 F.2d 1222 (C.A. 2).
130 Thirty-fourth Annual Report of the National Labor Relations Board case. 24 The Board had directed an election in a bargaining unit composed of two employees and at the election the employer challenged both ballots, contending that one of the employees was a supervisor—an argument not raised at the preelection hearing— and that the other employee could not, alone, constitute an appropriate unit. The regional director, without an evidentiary hearing, rejected the challenges on the ground that the record could not be reopened on the basis of challenges turning on contentions which could have been, but were not, made at the preelection hearing. The Board denied review and in the subsequent unfair labor practice proceeding granted summary judgment on the ground that the supervisory status of the individual in question had been fully litigated in the representation proceeding. Contrary to the Board, the court held that the employer's allegations raised a substantial question as to the supervisory status of the individual in question, and that a hearing on this issue should have been held. In the court's view, the issue had not been fully litigated at the preelection hearing, even if some of the evidence introduced at that hearing was relevant to a determination of that issue ; the entire thrust of that hearing was focused on other issues involving the appropriateness of the two-man unit rather than a larger unit. It found nothing in the Board's rules or decisions to support the regional director's conclusion that raising the issue by challenging the voter's ballot was untimely and, presumably, any delay which might result from allowing issues to be raised by way of challenges to ballots could be avoided by proper exercise of the regional director's discretion to proceed either by investigation or by hearing. The court noted that in this instance the employer's proffered evidence was never considered either at a hearing or in an investigation, and that the record did not show any unjustifiable delay on his part. Under these circumstances, it concluded that the Board's discretion did not allow it to avoid deciding the issue altogether ; the statutory provisions excluding supervisors from the definition of "employee" could not be avoided on procedural grounds. 3. Election Conduct of Board Agent Two cases decided by the Fifth Circuit during the report year involved challenges to elections based upon the allegedly irregular conduct of Board agents during the elections. In one case,25 "N.L.R.B. v. Howard Johnson Co., 398 F.2d 435. ° Delta Drilling Co. v. N.L.R.B., 406 F.2d 109.
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TMR.TY-FOURM ANNUAL REPORT
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NATIONAL LABOR RELATIONS BOARD Memb
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7 TABLE OF CONTENTS CHAPTER I. Oper
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Table of Contents ix Page 1. Preser
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PERCENT PERCENT 100 100 1111111 90
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II Jurisdiction of the Board The Bo
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V Representation Cases The Act requ
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VI Unfair Labor Practices The Board
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Table 3A.—Formal Actions Taken in
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it! All C cases CA cases CB cases C
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Stage of disposition ' Table 8.-Dis
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Table 11A.—Analysis of Elections
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Table 13.-Final Outcome of Represen
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Participating unions AFL-CIO v. AFL
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Table 14.-Valid Votes Cast in Repre
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Participating unions AFL-CIO v. AFL
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