denying a request for an evidentiary hearing on the issue "whether there was a substantial and material question of fact" because "(t
How later courts described this case
- denying a request for an evidentiary hearing on the issue "whether there was a substantial and material question of fact" because "(t
- An evidentiary hearing is not required when, “if all the facts supporting the position of the objecting party were credited, no ground is shown for setting aside the election.”
- “right to produce evidence or conduct cross-examination material to the issue”
Written by the judges who cited it.
The opinion
J. SPENCER BELL, Circuit Judge *
(dissenting):
Once again my colleagues invade an area which I think is peculiarly within the expertise of the Board to overthrow a result they do not like. It is, I think, quibbling to use the two points they have chosen to find the Board clearly in error on the representation issue. The first is that the union misrepresented the fact that New York union contracts offered clinical services to the families of union members. There was no evidence that this representation in fact changed a vote, and certainly the Board is in better position to judge than this court which has only the opinion of company counsel to support its conclusion. The second is that the leaflet addressed to the company beginning “In your New York union contracts” misled the employees. The majority’s opinion is speculation, and if I were going to speculate I would assume that after a long and bitter campaign, the employees would all know whether the company had in fact signed advantageous contracts with the union at other plants. Finally, the reversal of the Board with respect to the mechanics of the election is utterly without justification. There was not a scintilla of evidence that the persons excluded from voting were company adherents. If mistakes there were, the Board was justified in assuming they cut both ways. In NLRB v. Jesse Jones Sausage Co., 309 F.2d 664, 667 (4 Cir. 1962), this court said “* * * it is not for this court, to exercise discretion as to ‘whether or not the election should be set aside for irregularities in procedure.’ ”
Judge Bell prepared this opinion before his death on Márch 19,1967.