Reichart Furniture Company v. National Labor Relations Board

MERRITT, Circuit Judge,

concurring.

I agree with the result reached by the Court in this case, but I do not think the opinion adequately articulates the distinction between this case and Prestolite Wire Division v. N. L. R. B., 592 F.2d 302 (6th Cir. 1979); N. L. R. B. v. Curtis Noll Corp., 634 F.2d 1027 (6th Cir. 1980) and N. L. R. B. v. North Electric Company, Plant No. 10, 644 F.2d 580 (6th Cir. 1981). In those cases this Court suggested that the N.L.R.B.’s own rules appear to require, and due process demands, that where a substantial ques *399 tion is raised by an employer regarding the fairness of a representation proceeding, the Regional Director must include in the record transmitted to the Board “documentary evidence” gathered by the Regional Director in connection with his investigation. Section 102.69(g) states that “the Regional Director shall transmit the record to the Board,” and that the record shall include “documentary evidence” in addition to certain other papers. In N. L. R. B. v. North Electric Co., supra, we rejected “the Board’s position that it does not have to review the documentary evidence” stating that this position is “an abdication of its responsibilities under the National Labor Relations Act.” (P. 584). This is the position of our Court stated in Prestolite and Curtis Noll as well.

I would not enforce this principle in the present case, however, because the company’s arguments are insubstantial and in most instances frivolous. Its argument that remarks by the Board’s agent during the election interfered with the election process and its claim that the Union made misrepresentations concerning its constitution and bylaws are to my mind frivolous. I do not see anything in the briefs or in the record that makes out a colorable claim. If the situation were otherwise, however, and the case presented real questions concerning the fairness of the representation proceeding, I cannot at the present time see how either the Board or this Court could review the fairness of the election without having before us the documentary evidence on which the Regional Director based his decision. In the instant case the company has used a “shotgun” approach and has failed to proffer or suggest the probability of any facts that would warrant setting the election aside under applicable legal standards. For this reason I concur in the decision of the Court that the Board was excused from enforcing its rule requiring that all documentary evidence gathered by the Regional Director be made a part of the record.