Erie Coke & Chemical Company

ERIE COKE & CHEMICAL COMPANY Erie Coke & Chemical Company and United Steel- workers of America, Petitioner. Case 8-RC- 12322 April 8, 1982 DECISION AND ORDER DIRECTING HEARING BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered objections to an elec- tion held on January 22, 1981,1 and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and briefs, and hereby adopts the Regional Director's findings2 and recommenda- tions, except as modified herein. The Regional Director recommended that the Employer's Objection 1 be overruled. The Em- ployer excepts, contending that the Regional Di- rector erred in applying the law, and that the Re- gional Director improperly resolved conflicts in testimony. We find merit in the exceptions, and ac- cordingly we shall direct that a hearing be held on Objection 1 for the following reasons. In N.L.R.B. v. Claxton Manufacturing Company, Inc., 613 F.2d 1364 (5th Cir. 1980), the court held that due process requires that a hearing be con- ducted when the losing party files evidence that, prima facie, raises substantial and material issues that would warrant setting aside the election. In addition, the court held that when the objecting party had established a right to a hearing, the Re- gional Director's "investigation of the objections was not a substitute for it. The hearing may not be denied on the basis of new information obtained ex parte by the Regional Director." The court added that the Regional Director "must make available relevant information discovered in the course of his investigation, at least to the extent that [an object- ing party] has pointed him toward it, whether it favors the successful party or the objector and re- gardless of whether it was referred to by the objec- tor's affidavits or is independently turned up by the investigation." Due in part to the opinion in Claxton, supra, and other similar court decisions like it, the Board reex- amined its procedures for disposing of postelection The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally was 43 for, and 42 against, the Petitioner. There were no challenged ballots. 'In the absence of exceptions thereto, we adopt, pro forma, the Re- gional Director's recommendations to overrule Employer's Objections 2 and 3. objections to the conduct of elections. On Septem- ber 15, 1981, the Board amended its Rules and Regulations at 29 CFR Sections 102.68 and 102.69 pertaining to procedures applicable to disposition of objections to an election. Therein the Board ac- knowledged the criticism by the courts of the Board's failure to hold hearings on election objec- tions in a situation when, in the opinions of the courts, the "substantial and material factual issues" standards of the Board's Rules and Regulations re- quired it to do so. The revisions in the Board's Rules and Regulations make clear that ex parte in- vestigations are not to be used to resolve "substan- tial and material factual issues" particularly where the factual issues turn on credibility. Rather the rules specifically provide that a hearing "shall be conducted with respect to those objections or chal- lenges which the Regional Director concludes raise substantial and material factual issues." Section 102.69(d). In this proceeding, as noted supra, the Employer has supplied affidavits to the Regional Director which show that an employee was the victim of a threat on his life from someone who purported to be a representative of the International. The assert- ed threat came sometime after the victim expressed his support for the Employer to his fellow employ- ees. Although the record suggests that only two unit employees, Miller and his son, may have known about the threat before the election, the Board has held that in the reality of industrial life a serious threat, though made to a single employee, will affect other employees in the selection of a union as it will be inevitably discussed by them.3 In this case, we find that the record contains incon- sistent statements with respect to the circumstances surrounding the alleged threat. The resolution of these conflicts by the Regional Director was im- proper and requires that we remand this proceed- ing for further hearing. 4 Accordingly, we shall remand this proceeding to the Regional Director for him to arrange a hearing on the Employer's Objection 1. ORDER It is hereby ordered that a hearing be held before a duly designated hearing officer for the purpose of receiving evidence to resolve the issues raised by the Employer's Objection 1. IT IS FURTHER ORDERED that the hearing officer designated for the purpose of conducting such hearing shall prepare and cause to be served on the 'General Stencils Inc. 195 NLRB 1109 (1972). See Anchor Inns& Inc., d/b/a Anchor Inn Hotel of St Croix. 644 F.2d 292 (3d Cir. 1981); Claxton Manufacturing supra. 261 NLRB No. 8 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties a report containing resolutions of credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said objection. Within 10 days from the date of issuance of such report, either party may file with the Board in Washington, D.C., eight copies of exceptions there- to. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other parties and shall file a copy with the Regional Director. If no exceptions are filed there- to, the Board will adopt the recommendations of the hearing officer. IT IS FURTHER ORDERED that the above-entitled matter be, and it hereby is, referred to the Regional Director for Region 8 for the purpose of arranging such hearing, and that the said Regional Director be, and hereby is, authorized to issue notice there- of. 26