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National Labor Relations Board v. Silverman's Men's Wear Inc.

decided as amended august 17 1981.: August 6, 1981.



Before Adams, Rosenn, and Higginbotham, Circuit Judges.

Author: Per Curiam


The National Labor Relations Board ("NLRB" or "Board") applies for enforcement of a bargaining order issued to Silverman's Men's Wear, Inc. ("Company" or "Employer"). 29 U.S.C. § 160(e). The order*fn1 directs the Company to recognize and bargain with General Warehousemen and Employees' Union Local 636 ("Union") as the lawfully certified collective bargaining representative of the Company's employees at its Warrendale, Pennsylvania, warehouse and distribution center. The Company admits refusal to bargain, but defends against the unfair labor practice charge on the ground that the Board's Regional Director should have held a hearing on the Company's objections to the election which led to the Union's certification.*fn2 Because we believe that one of the objections necessitated a hearing, we deny enforcement.


The bargaining unit at the Company's distribution warehouse in Warrendale consists of 56 employees, 26 of whom were on layoff status at the time of the election. Pursuant to a Stipulation for Certification upon Consent Election, members of the unit voted by secret ballot on May 31, 1979, following approximately two months of campaigning. The Union won, 29 to 23, with two challenged ballots. The employer filed objections to the election, alleging that the Union's conduct in the waning days of the campaign had substantially disrupted the atmosphere of free and fair choice in which elections should be held. Although the Company originally filed five objections, only three have been preserved for our review.

First, the Employer claimed that the Union's Secretary-Treasurer, Robert Baird, significantly misrepresented to approximately 20 employees present at a meeting on May 25, 1979, the wage scales the Union had negotiated for its members at neighboring warehouse and distribution facilities. Second, the Company charged that at the same meeting Baird had infected the election atmosphere with religious prejudice and intolerance when he referred to Mark Silverman, a Company vice-president, as a "stingy Jew." Finally, the Employer alleged that Baird and other Union officials had engaged in unlawful electioneering on the day of election.

The Company proffered witnesses in support of its allegations. The Regional Director interviewed these witnesses and, finding the objections to have raised no "substantial and material factual issues," declined to hold a hearing. 29 C.F.R. § 102.69(d) (1980). On the basis of his investigation, he recommended that the Board overrule the objections and certify the results of the election. The Board adopted that recommendation.

After the election was certified, the Union demanded that the Company bargain collectively with it concerning the terms and conditions of employment at the Warrendale facility. The Company refused and an unfair labor practice charge was filed. The Board entered summary judgment for the Union, concluding that all of the Company's claims had been fully litigated and resolved during the representation proceedings. 250 N.L.R.B. 1388 (1980). This application for enforcement followed.


In order to obtain a hearing on its objections to conduct affecting the outcome of a Board-conducted representation election,

the objector's proffer of evidence must prima facie warrant setting aside the election. The proffer may not be conclusory or vague; it must point to specific events and specific people. On the other hand, an evidentiary hearing is not required when, if all the evidence proffered by the objecting party is accepted as true, no ground is produced which would warrant setting aside the election.

Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 296 (3d Cir. 1981). "Courts will insist on an evidentiary hearing when a party's objection raises substantial and material issues of fact." Id. (citing NLRB v. Campbell Products Department, 623 F.2d 876, 879 (3d Cir. 1980)). In the instant case, the Regional Director accepted, in support of the Company's objections, statements he obtained during interviews with proffered employees who allegedly witnessed the Union misconduct. As a court we must decide whether this proffered evidence raised substantial and material factual issues, so as to require a hearing. Vitek Electronics, Inc. v. NLRB, 653 F.2d 785, at 790 (3d Cir. 1981); NLRB v. Sun Drug Co., 359 F.2d 408, 415 (3d Cir. 1966).

With respect to the first objection, alleging material misrepresentations of fact, the Regional Director compared the statements of the Company's "witnesses" with the allegations contained in the objection and concluded that the statements did not support the allegations. As to the second and third objections, unlawful appeals to religious prejudice and Union electioneering at the polls, the Regional Director, assuming the truth of both the statements of the Company-proffered employees ...

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