NLRB v. Griffith Oldsmobile, Inc., 71-1100.

• Decision Date: 22 February 1972
• Docket Number: No. 71-1100.,71-1100.
• Citation: 455 F.2d 867
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GRIFFITH OLDSMOBILE, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

455 F.2d 867 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GRIFFITH OLDSMOBILE, INC., Respondent.

No. 71-1100.

United States Court of Appeals, Eighth Circuit.

February 22, 1972.

Arnold Ordman, Gen. Counsel; Dominick L. Manoli, Associate Gen. Counsel; Marcel Mallet-Prevost, Asst. Gen. Counsel; Charles N. Steele and Steven R. Semler, Attys., National Labor Relations Board, Washington, D. C., filed appendix and brief for petitioner.

William Alexander, Jr., Atlanta, Ga., filed brief for respondent.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

The National Labor Relations Board petitions this Court for enforcement of its order requiring Griffith Oldsmobile, Inc., to bargain with District Lodge 71, I.A.M., AFL-CIO. The Board's decision and order are reported at 184 N.L.R.B. No. 85, 74 L.R.R.M. 1702 (1970).

On May 13, 1969, the Union won a Board-conducted election by a six-to-four vote. Thereafter, Griffith filed objections to the conduct of the election, alleging that lack of election secrecy and improper pre-election threats had affected the results of the balloting.

The Board's Regional Director conducted an administrative investigation of Griffith's objections and afforded the parties an opportunity to submit evidence.

On January 6, 1970, the Director found the objections to be without merit. He recommended that the Board "overrule the Employer's objections in their entirety and without hearing * * * and certify the Union as the exclusive bargaining representative of all employees in the unit."

The Company filed exceptions to the Director's report and requested that the Board either set aside the election or order a hearing. The Board found that the Company raised no material or substantive issues of fact or law warranting reversal of the Director. It certified the Union as the bargaining agent.

Thereafter, the Union requested Griffith to bargain. Griffith refused. The Union filed unfair labor practice charges. On March 11, 1970, a complaint was issued charging the Company with violations of § 8(a) (1) and (5) of the National Labor Relations Act. Griffith admitted the refusal to bargain, but contended that the Board had erred in certifying the Union and that it was not, therefore, obligated to bargain. Griffith again relied on the argument that lack of election secrecy and improper pre-election threats had affected the results of the election. The General Counsel moved for summary judgment on the grounds that the issues raised by Griffith had been fully litigated and determined adversely to the Company in the representation case. The Examiner granted summary judgment and the Board affirmed. This proceeding followed.

Griffith argues on this appeal that, by failing to grant a hearing on the Company's objections to the election at some stage of the proceedings, the Board violated both its own regulations and the due process clause of the United States Constitution. Griffith argues further that, in any event, the Board's findings are not supported by substantial evidence on the record as a whole.

Board regulations permit a Regional Director to determine the validity of objections to an election by an administrative investigation, unless it appears to the Regional Director that substantial and material factual issues exist which can be resolved only by a hearing. Furthermore, once an issue is resolved by the Board in a representation proceeding under its Section 9 powers, the Board is not ordinarily required, absent newly discovered evidence, to reconsider the same issue and evidence in an ensuing unfair labor practice proceeding under Section 10 of the Act. Finally, a decision of a Regional Director, if not set aside by the Board, is entitled to the same weight in subsequent appeals as a Board determination.¹

The initial question we must consider is whether Griffith, in its objections to the election, raised substantial and material factual issues necessitating a hearing.

To raise such issues,

"* * * it is incumbent upon the party seeking a hearing to clearly demonstrate that factual issues exist which can only be resolved by an evidentiary hearing. The exceptions must state the specific findings that are controverted and must show what evidence will be presented to support a contrary finding or conclusion. * * * Mere disagreement with the Regional Director\'s reasoning and conclusions do not raise `substantial and material factual issues.\' This is not to say that a party cannot except to the inferences and conclusions drawn by the Regional Director, but that such disagreement, in itself, cannot be the basis for demanding a hearing. To request a hearing a party must, in its exceptions, define its disagreements and make an offer of proof to support findings contrary to those of the Regional Director. The Board is entitled to rely on the report of the Regional Director in the absence of specific assertions of error, substantiated by offers of proof.

"The purpose behind the rule which requires a hearing only when `substantial and material factual issues\' are raised is to avoid lengthy and protracted proceedings, and eliminate unnecessary delays in certifying the results of an election. If a hearing is required to be held on all exceptions to an election or report of a Regional Director, it would unduly lengthen and prolong labor unrest, contrary to the very purposes of the National Labor Relations Act. * * *"

N.L.R.B. v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172, at 178 (6th Cir.), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967). See, Baumritter Corporation v. N.L.R.B., 386 F.2d 117 (1st Cir. 1967). Cf. N.L.R.B. v. Difco Laboratories, Inc., 389 F.2d 663 (6th Cir.), cert. denied, 393 U.S. 828, 89 S.Ct. 91, 21 L.Ed.2d 98 (1968).

Here, the only witnesses to the alleged pre-election threats were those brought forward by the Company. The sole question for the Director was, therefore, what inferences and conclusions could be drawn from their testimony. By its objections, Griffith did nothing more than question the interpretation and inferences placed upon the facts by the Regional Director. Thus, the Board was wholly within its rights in refusing to grant a hearing on the objections, either initially or at the time the unfair labor practice charges were heard.

Conflicting evidence was presented to the Regional Director with respect to the lack of election secrecy, but Griffith's testimony on this point was so insubstantial that the Regional Director properly found that no real factual question was raised.²

We are left, then, with the question of whether there is substantial evidence on the record as a whole to support the Board's findings.

Without question, the Board properly found that the secrecy of the ballot had not been compromised.

We must, however, consider in some detail Griffith's allegation that Union adherents engaged in a systematic course of coercion which made a fair election impossible.

In support of this contention, Griffith produced an employee who testified that, approximately a week and a half before the election, he was approached by three unidentified men. One of the men gave the employee a union card and stated that the employee had better sign it; that if he didn't want to be fired, he had better sign a card and give the man $10.00; that if the employee knew what was good for him, he would join the Union; and that if he did not sign now, it would cost him $250 to join at a later date—if the Union members would even permit him to join.

The employee further testified that a few days later, he was again stopped by three men, one of whom had been involved in the preceding incident. The men asked the employee if he wanted to give them $10.00 and sign the card. They further told him that if he did not do so, he would no longer be working in the automobile business in Kansas City, and that it would not be healthy for him if he did not join the Union. The employee was unable to identify any of the men.

A second employee stated that he received a telephone call from an unidentified man who cursed him and stated that if he did not join the Union, he would not be able to work in the automobile business in Kansas City.

Both employees testified that other employees on the job frequently asked them to join, and that these other employees stated that if the two employees didn't join now, they might later have to pay a higher initiation fee.

On the basis of the above facts, the Regional Director found:

"* * * There is no evidence whatever that the Petitioner was responsible for the actions and statements of the three men involved, none of whom has been identified. Similarly, there is no

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