Reichart Furniture Company v. National Labor Relations Board ( 1981 )

PER CURIAM.

On receipt and consideration of a petition for review and a cross-application for enforcement of an order of the National Labor Relations Board cited at 238 N.L.R.B. 1578 (1978), this court notes that the threshold question in this case is whether or not the Board erred in overruling the Company’s objections to the validity of the representation election at which the Union¹ prevailed by a vote of 15 to 9.

Subsequent to the election, the Company filed timely objections as to which the Regional Director conducted an administrative investigation, affording the Company full opportunity to proffer proof supporting the allegations and to provide additional information and clarification to aid in the Board’s own investigation. Subsequent thereto, the Regional Director issued his report overruling the objections in their entirety and recommending that the Board certify the Union as the exclusive bargaining representative of the Company’s employees. The Company thereupon filed timely exceptions to the Regional Director’s report and sought a hearing on its objections. After considering the Regional Director’s report and the Company’s exceptions, affidavits and documents in support of its exceptions and its brief, the Board adopted the Regional Director’s findings, conclusions and recommendations and certified the Union as the bargaining representative of the Company’s employees.

Thereafter, the Union requested bargaining, which the Company refused, and the present unfair labor practice charge was filed contending that the Company’s refusal to bargain violated Sections 8(a)(5) and (1) of the National Labor Relations Act. The Board specifically held that issues not raised by the Company in the prior representation proceeding were not “properly litigable in this unfair labor practice proceeding.” 238 N.L.R.B. at 1579. Further, the Board reaffirmed its determination in the representation proceeding that the Company had failed to raise “substantial or material issues warranting a hearing” (id.) and granted summary judgment requiring the Company to cease and desist from refusing to bargain with the Union or continue to violate the National Labor Relations Act.

On examination of the briefs and record in this case, the court holds that the Board was acting within its appropriate discretion in denying a hearing since no challenge to the election advanced by the Company presented a substantial challenge to the fairness of the election. In NLRB v. Tennessee Packers, Inc., 379 F.2d 172, 177, 178 (6th Cir. 1967), cert. denied, 389 U.S. 958, this court said:

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[es] 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.

(Citations omitted.)

These principles have never been overruled in this court and in fact were reaffirmed in Prestolite Wire Division v. NLRB, 592 F.2d 302, 306 (6th Cir. 1979).

As this court sees this record, it fails to present factual issues and offers of proof thereon which demand an evidentiary hearing before the Board. This conclusion serves to distinguish this case from Prestolite Wire, supra, and NLRB v. North Electric Co., 644 F.2d 580 (6th Cir. 1981).

1 . The contesting parties in the election were respectively the Retail Clerks International Union, AFL-CIO (the Union) and the Independent Furniture Workers of the Ohio Valley or TriState Area (the Intervenor).