Season-All Industries, Inc. v. National Labor Relations Board

ADAMS, Circuit Judge,

dissenting.

I agree with the majority that our recent decision in Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir. 1981), establishes the governing legal standard for determining when the Board should conduct an evidentiary hearing concerning allegations of election misconduct. I believe, however, that in this case Season-All did not satisfy the threshold requirement of Anchor Inns.

According to Anchor Inns, unsubstantiated allegations by the party objecting to an election will not suffice to compel the Board to undertake a hearing. Rather, “to obtain an evidentiary hearing, 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.” 644 F.2d 292, 296 .

Although hearings generally serve a useful purpose, requiring a hearing in the absence of a factual predicate warranting such an inquiry provokes unnecessary delay in the administrative process at the expense of the choice of a majority of the workers. Furthermore, we must be mindful of the admonition by the Supreme Court in Ver *943 mont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 , 98 S.Ct. 1197, 1202 , 55 L.Ed.2d 460 (1978), that “absent constitutional constraints or extremely compelling circumstances the administrative agencies should be free to fashion their own rules of procedure.” Under the majority opinion, the Board’s rule that there should be a hearing only when the objecting party specifically substantiates its allegations is, in effect, abrogated. In its stead the majority would substitute a court-crafted rule that there must be a hearing even when the allegations are vague and unsupported.

The issue on which Season-All requests a hearing involves Sadler’s status with the union. 1 Thus, under Anchor Inns, we must ascertain whether the employer proffered “substantial and material” evidence that Sadler was a union agent. The. offerings by Season-All on this issue are, at best, conclusory and vague, and they fall short of being substantial. In its complaint, Season-All contended that “Sadler, an agent of the [IAM], engaged in electioneering....” (emphasis added). The employer then detailed the content of the statements that purportedly constituted electioneering. As to the allegations of union agency, the critical issue in this appeal, the company merely came forward with a single, vague item of evidence to support the claims of union agency. Season-All asserted that Sadler stated he was at the polling place because he was “for the union.” 2 This enigmatic statement suggests that Sadler supported the union, rather than that Sadler held a position with the union.

The majority concludes that Season-All satisfied the requirements in Anchor Inns of concreteness and substantiality when it “referred to specific events (time, place and conversations) and specifically identified Sadler as the person whose conduct was being challenged.” Maj. op., typescript at 940. But, these allegations by Season-All pertain only to the question of whether Sadler’s comments were coercive; they are not apposite to the question of Sadler’s position within the union.

All that Season-All offered on this crucial issue were the cryptic statement adverted to earlier and the conclusory allegation that Sadler was an agent. To warrant a hearing on the question of Sadler’s status, Anchor Inns requires more substantial evidence than this. Also relevant here is the observation in Anchor Inns that “it would of course serve no useful purpose to require the Board to hold hearings when the evidence proffered will not affect the validity of the election.” 644 F.2d at 296 . The proffered evidence — that Sadler said he was “for the union” — is not of sufficient import to affect the election certification. Moreover, after an investigation the Regional Director found no evidence that Sadler either held a position with the union or had been designated by the union to police the polling area.

When the evidence produced by Season-All in the present case is measured against the substantiality requirement of Anchor Inns, it appears that the Board did not err when it declined to hold a hearing on the question of Sadler’s union position. Inasmuch as I am bound by Anchor Inns, decided only a few months ago, I respectfully dissent from the portion oí the majority opinion that directs the Board to hold a hearing.

. The NLRB rule advanced in Milchem, Inc., 170 NLRB 362 , would apply only if Sadler is found to have been a representative of the union. In Milchem it was undisputed that the person who made the allegedly improper remarks was a union official, so the Board devised a rule to cover statements by parties to the election. This rule is largely inapposite to the narrow procedural issue presented in this case, because the inquiry into Sadler’s union status is distinct from and preliminary to any consideration of Milchem.

. As the majority correctly points out, it was not until the unfair labor practice proceedings, a year after the election, and well after the Board had considered the need to hold a hearing, that Season-All, in objecting to the General Counsel’s motion for summary judgment, alleged for the first time that Sadler had held himself out to the company as a member of a union committee, even though he was not on the official list of union representatives. (A.324).