1 - National Labor Relations Board

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.