Full opinion text
OPINION ANNOUNCING THE JUDGMENT OF THE COURT GIBBONS, Circuit Judge: This case is before us on the application of the National Labor Relations Board (the Board) to enforce its order finding that ARA Services, Inc. (ARA) violated section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) (1976), by refusing to recognize and bargain with Local 1111, United Food and Commercial Workers International Union, AFL-CIO (the Union). That Union has been certified as the bargaining representative for ARA employees in a representation proceeding conducted pursuant to section 9 of the Act. 29 U.S.C. § 159 (1976). The employer concedes the refusal to bargain, but urges that the Board erred in overruling its objections to the conduct of a Board supervised election. The case requires our consideration of the scope of this court’s review of the Board’s review of a regional director’s report on objections to the conduct of elections, in particular a regional director’s decision to issue such a report on the basis of an administrative investigation rather than a hearing. We conclude that the Board did not abuse its discretion when it overruled objections to the conduct of the election without requiring that the regional director conduct a hearing, and we enforce the Board’s order directing the employer to bargain collectively. I. Proceedings Before the NLRB ARA is engaged in the industrial catering business at a number of locations, including the cafeteria and dining room of Bell Laboratories in Murray Hill, New Jersey. On October 24,1979 the Union, claiming majority support among ARA employees at that facility, sought recognition as their collective bargaining representative. ARA declined recognition, and on November 9 the Union filed a representation petition with the Board. The company stipulated to a consent election on January 11, 1980, and the stipulation defined the appropriate bargaining unit of 69 members. Of these, 58 cast ballots, with 30 voting for union representation. The regional director for Region 22 thereupon furnished to the parties a tally of the ballots. Within the 5 days permitted by 29 C.F.R. § 102.69(a), counsel for ARA filed with him the following unverified objections to the conduct of the election: Objection No. 1 The Union, by its officers, agents, supporters and adherents threatened employees with physical harm, social ostracism, and other reprisals if they voted against union representation. The Union, acting through its officers, agents and adherents, chilled the atmosphere and interfered with the free exchange of ideas by advising employees that it was aware of which employees were talking to management representatives, thereby creating an atmosphere of coercion and tension which interfered with the conduct of the election. Objection No. 2 Board Agent Bennett Muraskin failed to exercise his authority and to affirmatively act so as to make it clear to the employees that the election was being conducted by the Board and that the Board was in actual charge of the voting arrangements but allowed the Union’s designated observer to appear to be running the election process, thereby interfering with the election, creating the impression that the Government was not in control and substantially affecting the outcome of the election. These unverified objections resulted in an investigation by the regional director. See 29 C.F.R. § 102.69(c)(1). During the course of the regional director’s investigation ARA furnished unverified handwritten statements by three bargaining unit employees, Kevin Woodruff, Frank Smith and June Colavito. The statement of Woodruff was tendered in support of Objection No. 1, while that of Colavito was tendered in support of Objection No. 2. Smith’s contains an additional charge. Woodruff’s statement, in relevant part, reads Paul Reisner and Enzo Fusco, two pro-union spokesmen on two different occasions, before the voting took place, told me that I should go along with the Union. Enzo said he’d “beat me up” if I did not join the Union. Paul Reisner told me he’d “get back at me” if I didn’t join the Union. The Union man a big tall guy, who was here for the vote said there would be an all-out strike — no food, no jobs, that the trucks would be prevented from delivering food and no one would be able to come to work. Fusco was present when the Union official made this comment. Fusco said to me that I better vote yes. Fusco and some of the others told me that if I didn’t vote for the Union, nobody would be my friend or talk to me. Woodruff’s statement does not say whether or not he voted in the election. During the course of his investigation the regional director interviewed Woodruff, Fusco and Reisner. With respect to the charge that Woodruff was threatened with the loss of friends, his Report on Objections notes that Woodruff “admitted, however, that the second threat of losing friends was not taken seriously, due to the bantering nature of the statement, and further claimed to be unsure if Fusco himself was serious when making the statements imputed to him.” When interviewed Woodruff apparently reiterated the charge that Fusco threatened to beat him up. He also enlarged upon the charge that Reisner, an assistant chef, threatened to get back at him, stating that this threat was made after Reisner had learned Woodruff had disclosed a union campaign letter to a supervisor. During the course of the investigation both Fusco and Reisner were interviewed, and both denied making the alleged threats. The regional director did not, however, resolve this credibility issue. Instead, his report observes: The investigation revealed that neither Fusco nor Reissner [sic] were identified as prominent Union partisans in the pre-election period, neither distributed or collected authorization cards or acted as election observers. Further, Reissner [sic] resigned prior to the date of the election and Fusco’s employment terminated shortly thereafter. Employees other than both Fusco and Reissner [sic], have been identified as having established initial contact with Petitioner [Union], distributing, collecting and returning authorization cards on behalf of Petitioner [Union] and serving as active members of an organizing committee. Such overt activity on behalf of Petitioner [Union] by such other employees is generally not sufficient to establish agency thereby holding Petitioner [Union] responsible for the alleged wrongdoings of employees without more. In this regard, Fusco and Reissner [sic] were not the prime Union adherents, and there is no evidence that the Petitioner [Union] was aware of any alleged misconduct attributed to them nor condoned or ratified any of their alleged actions. Further there is no evidence that any representative of Petitioner [Union] engaged in any other misconduct. Woodruff’s statement is the only evidence submitted by ARA in support of Objection No. 1. Except for the interlineation describing Reisner and Fusco as “two pro-union spokesmen” it contains no information about the connection of either to the Union or the organizing effort. Thus the facts respecting their status developed during the regional director’s investigation is uncontra-dicted by any evidence submitted by ARA. Colavito’s statement is quoted in the margin. It refers to no specific misconduct by either the Board agent supervising the election or the Union observer. In a conclusory manner it asserts that from her viewpoint as a company observer the Union observer acted so officiously as to give the impression the election was under Union control, and the Board agents failed to negate that impression. The regional director’s investigation determined that the election notices printed by the Board and informing the voters that the election was under the Board’s aegis, were duly and timely posted; that observers for the parties were instructed as to their duties and were issued and wore identifying badges during the election; that the Board agents also wore identifying badges; and that both observers scrupulously followed the Board agents’ instructions. The Regional Director concluded that “no probative evidence was submitted, nor did the investigation disclose any evidence, that the Petitioner’s [Union’s] observer engaged in any conduct that was intended to or had the effect of interfering with the employees’ free choice in the election. ...” Smith’s statement contains the charge that “several of the pro-Union girls told me that if I voted for the Union in the NLRB election, the Union would be giving me a birthday gift.” This objection was not made within the time permitted by 29 C.F.R. § 102.69(a), but Board precedent permits the regional director to consider matters uncovered in the course of an investigation not specifically alleged in objections to an election. See Pure Chem Corp., 192 NLRB 681 (1971) (election set aside on basis of facts developed in regional director’s investigation, not alleged in objection). The regional director in his investigation obtained an affidavit from Smith denying that the Union was to be the donor of the birthday gift, and admitting that the reference to such a belated gift (his birthday was some time past) was made facetiously. The regional director reported that the incident “does not raise a substantial issue which would warrant setting aside the election.” On February 21, 1978, the regional director recommended to the Board that ARA’s objections’ be overruled in their entirety, and that the Union be certified as bargaining representative. Within the 10 days provided in 29 C.F.R. § 102.69(e), ARA filed 13 exceptions to his report which are quoted in the margin. A three-member panel of the Board reviewed , the record in light of ARA’s exceptions and brief and adopted the regional director’s findings and recommendations. It certified the Union as bargaining representative on April 3, 1980. ARA’s motion for reconsideration was denied on May 1, 1980. Meanwhile on April 11, 1980, ARA informed the Union that it would not bargain collectively, and on April 17, 1980 the unfair labor charge was filed. The Board’s general counsel promptly filed a complaint and moved for summary judgment. ARA’s response relied on its exceptions to the regional director’s report and motion for reconsideration. In granting the general counsel’s motion on August 12, 1980, the Board noted: All issues raised by Respondent [ARA] in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. It therefore held that ARA’s refusal to bargain violated section 158(a)(5). II. ARA’s Objection to Certification ARA objects to enforcement on two grounds: that the Board should have directed the regional director to hold an eviden-tiary hearing, and that its certification was made without reviewing all the materials relied on by the regional director. A. The Evidentiary Hearing Contention Disposition of ARA’s contention that it is entitled to a pre-certification evidentiary hearing requires an appreciation both of the statutory scheme governing representation proceedings, and of the standards developed by the Board respecting the atmosphere in which representation elections shall be conducted. Section 9 of the National Labor Relations Act governs selection of collective bargaining representatives. 29 U.S.C. § 159 (1976). It provides that employees may petition for certification of a bargaining representative. Upon the filing of such a petition an employer and a labor organization may, as was done in this case, enter into a consent election agreement. 29 U.S.C. § 159(c)(4); 29 C.F.R. § 102.62 (1981). If no consent agreement is made “the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto.” 29 U.S.C. § 159(c)(1). While the statute refers to a “hearing,” it is clear that the purpose of that hearing is merely to gather information to facilitate the Board’s investigation. “It shall be the duty of the hearing officer to inquire fully into all matters and issues necessary to obtain a full and complete record upon which the Board or the regional director may discharge their duties under section 9(c) of the act.” 29 C.F.R. § 102.64(a) (1981) (emphasis in original). If a representation question exists the Board “shall direct an election by secret ballot and shall certify the results thereof.” 29 U.S.C. § 159(c)(1). The Act contains no provision for direct judicial review. Congress made the deliberate choice of insulating those proceedings from direct judicial review so as to prevent attrition of union support caused by delay in the commencement of collective bargaining. Boire v. Greyhound Corp., 376 U.S. 473, 478-79, 84 S.Ct. 894, 897, 11 L.Ed.2d 849 (1964). Instead the Act provides: Whenever an order of the Board made pursuant to section 160(c) of this title is based in whole or in part upon facts certified following an investigation pursuant to subsection (c) of this section and there is a petition for the enforcement or review of such order, such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed under subsection (e) or (f) of section 160 of this title, and thereupon the decree of the court enforcing, modifying, or setting aside in whole or in part the order of the Board shall be made and entered upon the pleadings, testimony, and proceedings set forth in such transcript. 29 U.S.C. § 159(d). This is the only statutory provision dealing with judicial review of representation questions. It does not deal with election irregularities in a consent election. Investigations under section 9(c) are directed only to such issues as the substantiality of union support and the appropriateness of the bargaining unit; questions which are mooted by a consent election agreement. Such elections are conducted “in conformity with regulations and rules of decision of the Board.” 29 U.S.C. § 159(c)(4). Under the rules adopted by the Board as of 1981 for the conduct of elections, 29 C.F.R. § 102.69 (1981), “[w]ithin 5 days after the tally of ballots has been furnished, any party may file with the regional director ... objections to the conduct of the election or conduct affecting the results of the election, which shall contain a short statement of the reasons therefor.” 29 C.F.R. § 102.69(a). If such objections are filed “the regional director shall, consistent with the provisions of § 102.69(d) investigate such objections” and prepare a report for the Board. 29 C.F.R. § 102.69(c). That report “may be on the basis of an administrative investigation or, if it appears to the regional director that substantial and material factual issues exist which, in the exercise of his reasonable discretion, he determines may more appropriately be resolved after a hearing, he shall issue and cause to be served on the parties a notice of hearing on said issues before a hearing officer.” 29 C.F.R. § 102.69(d). If the regional director exercises his discretion in favor of a hearing, that hearing “shall be conducted in accordance with the provisions of §§ 102.64, 102.65, and 102.66, insofar as applicable, except that at the close of such hearing, the hearing officer shall, if directed by the regional director, prepare and cause to be served on the parties a report resolving questions of credibility and containing findings of fact and recommendations as to the disposition of the issues.” 29 C.F.R. § 102.69(e). The cross-reference to sections 102.64, 65 and 66 is to the procedures for conducting a section 159(c) investigation. But whereas in a section 159(c) investigation the role of the hearing officer is merely to gather information, not to resolve credibility issues or make recommendations, the election procedure permits the hearing officer to do so if the regional director so elects. Thus a second element of discretion is added to the regional director’s initial discretion with respect to holding a hearing. The option of a hearing with respect to objections to the conduct of an election, then, is solely a creature of the Board’s rulemaking authority. Nothing in the statute mandates it. Moreover in drafting 29 C.F.R. § 102.69(d) the Board was careful not to track the language of Fed.R.Civ.P. 56(c), authorizing summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Instead the Board provided that the regional director had discretion to determine whether or not a given issue of fact could be better resolved by an investigation rather than a hearing. That approach in drafting the rule dealing with challenges to the conduct of elections is consistent with the intention of Congress, which, in section 159(c), chose an inquisitorial model of procedure in the certification of bargaining representatives. In section 160, by contrast, Congress provided for a classic adversarial model of procedure in which any “proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States.” 29 U.S.C. § 160(b) (1976). Following an investigation the regional director must file a report to the Board, to which any party may file exceptions with a supporting brief. “In a case involving a consent election ..., if exceptions are filed ... and it appears to the Board that such exceptions do not raise substantial and material issues with respect to the conduct or results of the election, the Board may decide the matter forthwith upon the record, or may make other disposition of the case. If it appears to the Board that such exceptions raise substantial and material factual issues, the Board may direct the regional director or other agent of the Board to issue ... a notice of hearing on said exceptions before a hearing officer.” 29 C.F.R. § 102.69(f). As in the case of a hearing directed by a regional director, the Board has discretion to direct the hearing officer to resolve questions of credibility and make findings of fact and recommendations. Id. Thus there is superimposed upon the discretion vested in the regional directors a second level of discretion in the Board, to decide whether or not a hearing will facilitate its investigation into election irregularities. Reasons for the distinction in procedural models between certification proceedings and unfair labor practice proceedings relate to the respective rights involved. If a majority in an appropriate bargaining unit chooses a collective bargaining representative the employer has no right to withhold recognition. Thus the essential dispute in a section 159 certification proceeding is between competing groups of employees, and the sole object of the proceeding is the safeguarding of majority free choice. An inquisitorial or investigatory model is well suited to that end. In an unfair labor practice proceeding, on the other hand, the employer, or a labor organization, is charged by the government with the violation of a statutory duty, and Congress obviously believed that the safeguards of the Federal Rules of Civil Procedure, including Rule 56(c), were necessary. And in casting 29 C.F.R. § 102.69(d) in terms of discretion to conduct a hearing rather than an investigation, the Board chose simply to give the neutral regional directors an additional inquisitorial tool which they can use, in their discretion, to aid in making an informed decision as to whether, as between competing groups of employees, the election represents the voice of the majority. It made the same choice with respect to its consideration of exceptions to the regional director’s report. While section 159(d) makes express provision for limited judicial review of section 159(c) investigations, it makes no reference to the review of issues arising with respect to election procedures. Thus it is’ not clear on the face of the statute that judicial review was intended in a section 160 enforcement proceeding with respect to any issues other than those arising in a section 159(c) investigation. The Supreme Court cases construing section 159(d) all involve bargaining unit determinations, which present the most typical section 159(c) issue. NLRB v. Metropolitan Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965); Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964); Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941). See also NLRB v. Sun Drug Co., 359 F.2d 408 (3d Cir.1966); NLRB v. Capital Bakers, Inc., 351 F.2d 45 (3d Cir.1965). Nevertheless this court, without considering the possible distinction between section 159(c) issues and election conduct issues, considered on the merits an objection that the Board erred in failing to hold a hearing about the atmosphere surrounding an election. In that case we held that “[t]he Board is entitled to rely upon its expertise in reaching its conclusion” that a hearing was unnecessary. NLRB v. Clearfield Cheese Company, 322 F.2d 89, 94 (3d Cir.1963). Since Clearfield Cheese we have assumed that we have authority from some source to review the Board’s election dispute dispositions. See Season-All Industries, Inc. v. NLRB, 654 F.2d 932 (3d Cir.1981) (election misconduct); Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir.1981) (election misconduct); Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000 (3d Cir.1981) (election misconduct); NLRB v. Campbell Products Dept., 623 F.2d 876 (3d Cir.1980) (election misconduct); NLRB v. Staiman Bros., 466 F.2d 564 (3d Cir.1972) (eligibility to vote); NLRB v. El-Ge Potato Chip Co., 427 F.2d 903 (3d Cir.1970) (eligibility to vote). The voter eligibility cases, which involve membership in the bargaining unit, involve issues which would ordinarily arise in a section 159(c) proceeding, and thus have a rather strong claim for judicial review on the authority of section 159(d). Our statutory authority to review Board resolutions of electioneering misconduct disputes in unfair labor practice enforcement cases is considerably less apparent. Nevertheless our undertaking to do so involves a not unreasonable interpretation of the interrelationship between section 159(c)(4) and section 160(f). In the absence of an objection by the Board to the exercise of that authority, we assume that some form of judicial review with respect to election misconduct is available. Our inquiry is narrower: what is the scope of such review when the Board decides not to require an evidentiary hearing. To put that inquiry in focus we must consider the nature of the three charges on which ARA relies, and the substantive law to which they are addressed. The charges are of threats designed to produce a vote in favor of the union, and a promise designed to induce such a vote, and of inadequate supervision of the balloting. The first two involve allegedly coercive electioneering and may be considered together. 1. The Coercion Claim All of the law with respect to the atmosphere to be maintained in an election campaign is Board-made under the lawmaking authority delegated to it by Congress. Thus the courts must ordinarily defer to the Board’s policy judgments respecting the conduct which will be deemed so coercive as to interfere with employee free choice. Traditionally the Board has been reluctant to set aside elections because of misconduct by third parties, as compared with agents of an employer or a union. See, e.g., NLRB v. Aaron Bros. Corp., 563 F.2d 409, 412 (9th Cir.1977) (per curiam); NLRB v. Bostik Div., USM Corp., 517 F.2d 971 (6th Cir.1975); NLRB v. Staub Cleaners, Inc., 418 F.2d 1086, 1088 (2d Cir.1969), cert. denied, 397 U.S. 1038, 90 S.Ct. 1357, 25 L.Ed.2d 649 (1970). One reason for the Board’s approach is that coercion by an employer or a labor organization in the choice of a bargaining representative is itself an unfair labor practice, prohibited by section 158(a)(1), (b)(1). Another is that setting aside an election is an effective deterrent to misconduct by an employer or a union, while it is no deterrent to third parties. There is, therefore, no assurance that a second election will be held in an improved atmosphere. See NLRB v. Staub Cleaners, Inc. Another reason is that the Board, with judicial concurrence, has always accorded less weight to conduct which is attributable to neither the Union nor the employer. Threats of fellow employees are deemed to be less coercive than those of agents of a union or an employer who may have the wherewithal to effectuate them. Employees, moreover, are credited with the ability, from experience in the workplace, to give appropriate weight to possibly impulsive statements of fellow employees in the heat of a campaign. NLRB v. Sauk Valley Manufacturing Co., 486 F.2d 1127, 1131 n. 5 (9th Cir.1973); see also NLRB v. Aaron Bros. Corp., 563 F.2d at 412; NLRB v. Bostik Div., USM Corp., 517 F.2d at 975. Perhaps the most important reason for scrutinizing mere employee misconduct by a lower standard than is applied to misconduct by agents of an employer or a union is that expressions of temper and passion may reflect the reality that in a contested election friction is inevitable. Given the nature of inter-employee relations, the Board cannot realistically be expected to create a totally frictionless election environment. See Polymers, Inc. v. NLRB, 414 F.2d 999, 1004 (2d Cir.1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 570, 24 L.Ed.2d 502 (1970); NLRB v. Monroe Automotive Equip. Co., 470 F.2d 1329, 1332 (5th Cir.1972), cert. denied, 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 155 (1973). Indeed, insisting that there be no give and take among employees on the subject of the desirability of collective bargaining would in itself be an undue interference with informed employee democracy. Thus the Board’s policy of giving lesser weight to instances of third-party misconduct in an electioneering context bears a rational relationship to the underlying policies of the Act, and this court must accept the Board’s judgment. Accepting the Board’s judgment in this respect narrows the inquiry still further, for in this instance the regional director’s report assumes that Fusco and Reisner may have made the threats attributable to them, and that some of the girls in the plant promised Smith a belated birthday gift. Two questions remain: (1) was an evidentiary hearing required as to whether Fusco, Reisner, and the birthday girls were union agents; and (2) if not, were the threats or promises such as to require, as a matter of law that the election be set aside. If the second question were to be answered affirmatively a hearing might be appropriate to resolve outstanding credibility issues, since Fusco and Reisner denied the threats, and Smith recanted part of his unsworn statement. ARA contends that the failure to hold an evidentiary hearing as to the agency status of Reisner, Fusco, and the birthday girls violated its due process right, which it equates with the standards for evidentiary hearings in Fed.R.Civ.P. 56(c). We reject that contention. The strict standard of Rule 56(c) is derived not from the due process clause of the fifth amendment, but from the seventh amendment. It could be changed with respect to proceedings in which jury trial is not required. What sort of factual investigation is required by due process depends upon a number of variables. See Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267 (1975). Certainly the inquisitorial model of procedure selected by Congress for certification matters in section 159(c) of the Act satisfies due process even though the hearing officer, under 29 C.F.R. § 102.64(a) merely reports, without resolving credibility issues or making recommendations. A fortiori investigations of election irregularities, which are entirely creatures of Board regulation, do not require evidentiary hearings satisfying Rule 56(c) standards. The governmental policy being implemented is employee free choice of bargaining representative, not employer freedom from collective bargaining. Board supervision and Board investigation with no provision for a hearing on employer complaints would be perfectly consistent with due process for employers. There are instances in which due process requires that an agency afford an adversarial mode of procedure and an evidentiary hearing, in preference to an ex parte inquisitorial process. Determining the basic fairness of an election, however, is not such an instance. At most what we are dealing with in this case is non-constitutional judge-made administrative law with respect to agency conduct, specifically the rule that an agency must generally apply its own rules in a manner that is not arbitrary, capricious, or an abuse of discretion. There was no such abuse here. The Board’s rule on election challenges directs the regional director to refer an election challenge to a hearing officer only if he concludes that it raises “substantial and material factual issues.” The only material factual issue raised by the statements of Woodruff and Smith was the status of Reisner, Fusco, and the birthday girls as agents of the union. The only “evidence” of such agency status is the interlineation in Woodruff’s statement of the words “two pro-union spokesmen” and Smith’s attribution of the promise of a birthday gift to “several of the pro union girls.” The regional director’s ex parte investigation produced no evidence of agency status of these persons. Even if the Board’s rules had adopted the “no genuine issue of material fact” standard of Rule 56(c), it is questionable whether ARA, by furnishing the statements of Woodruff and Smith, raised such an issue as to agency status. But certainly it was not an abuse of discretion for the regional director to conclude that no “substantial and material factual issue” as to that status was raised. The Board, when it reviewed the regional director’s report and recommendation, was required to consider whether ARA’s exceptions raised substantial and material factual issues. An examination of them discloses that they add nothing to what the regional director had before him. Thus its decision to decide the certification question on the record made by the regional director cannot be held to be an abuse of discretion. Since the regional director and the Board properly treated the allegedly coercive statements as third-party statements, we could deny enforcement only if we believed that assuming they were made they required setting aside the election. Patently the facetious promise by the birthday girls is a trivial matter. As to the threats of Reisner and Fusco, we have recognized that threats by third parties can create such an atmosphere of intimidation and coercion that a fair election cannot be held. Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000 (3d Cir.1981). In the Zeigler case, however, there was a hearing at the regional director level, and as authorized by 29 C.F.R. § 102.69(e), the hearing officer made credibility determinations. That officer, having heard the witnesses, concluded that there was a general atmosphere of fear and intimidation. The Board, however, with no evidentiary support, rejected the credibility determinations and factual findings which its own regulations authorized the hearing officer to make. Clearly Zeiglers involved an abuse of discretion by the Board in rejecting the hearing officer’s findings without explanation or evidentiary support. In this instance, however, both the regional director and the Board ruled that if the threats were made they had no material effect on the election. Woodruff, we note, did not allege that he was influenced by the threats. Considering that the law respecting electioneering atmosphere is Board-made law, and that the regional directors and- the Board have far more expertise in judging the effect of threats on employee free choice than we do, we cannot say that these rulings were an abuse of discretion. That being the case there was no need for an evidentiary hearing to resolve the credibility dispute between Woodruff, and Reis-ner and Fusco over whether the threats were made. ARA contends that our decisions in Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir.1981), and Season-All Industries, Inc. v. NLRB, 654 F.2d 932 (3d Cir.1981), require a different conclusion. In Anchor Inns we reviewed a record in which there was nothing disclosing why the regional director’s ex parte investigation was sufficient to overcome a strong prima facie case of coercion of a sufficient number of voters to change the result of the election. Board certification in that case, without further inquiry, was an abuse of discretion. The opinion is not precise with respect to the scope of our review, but should not be read as inconsistent with the abuse of discretion standard we apply in this case. The result in Season-All probably is consistent with that standard, because of the Board’s Michem rule that electioneering by an agent of an employer or a union at a polling place during balloting is a per se ground for setting aside an election. Michem, Inc., 170 NLRB 362 (1968). The regional director’s report in Season-All “did not comment on the conflicting evidence as to Sadler’s [agency] status.” 654 F.2d at 937. Disregarding that patently significant material fact issue violated the Board’s rules, and was an abuse of discretion. Anything in the Season-All opinion which suggests that it announces a different standard of review than we have applied in this in banc case must in the future be disregarded. 2. The Inadequate Supervision Claim The Board’s rules governing elections provides that secret ballot elections shall be conducted under the supervision of a regional director. Any party may be represented by observers of its selection. The parties and Board agents may challenge the eligibility of any person to participate. 29 C.F.R. § 102.69(a). Obviously it is proper, and even necessary, for observers not personally acquainted with every member of the bargaining unit to require identification. Thus the references in Colavito’s statement about some of the activities of the Union agent Mary Ann Ysebaert in making such inquiries do not suggest conduct which is in any way improper. The Board has held that actions by its agents tending to destroy confidence in election processes or to compromise its neutrality may be a basis for setting aside an election. See, e.g., Glacier Packing Co., Inc., 210 NLRB 571 (1974); Kerona Plastics Extrusion Co., 196 NLRB 1120 (1972). But the test is not whether optimum practices were followed, but whether on all the facts the manner in which the election was held raises a reasonable doubt as to its validity. Polymers, Inc., 174 NLRB 282, 283 (1969). Here the Board’s ex parte investigation revealed that the Board’s standard practice respecting notice, identification of observers and agents, instructions to observers, and identification of eligible voters was followed. The vague suggestion in Colavito’s statement that it was her impression that the Union observer acted too officiously does not present a substantial and material factual issue as to the fairness of the election requiring an evidentiary hearing. Moreover the statement does not, itself, assuming its accuracy, require that a new election be held. ARA’s exceptions to the regional director’s report and recommendations adds nothing to Colavito’s statement. To summarize, the regional director in preparing his report and recommendation on ARA’s objections to the election in reliance on his ex parte investigation rather than an evidentiary hearing did not abuse his discretion, and the Board, in considering ARA’s exceptions to that report did not abuse its discretion. Both acted consistently with the standards set out in the rules governing election challenges. B. The Incomplete Record Contention ARA’s second objection to enforcement is that the regional director, in transmitting his report and recommendation to the Board, failed to include the affidavits or • statements taken during the course of his ex parte investigation. It is the Board’s position that the regional director has no obligation to include such materials in a report on an ex parte investigation of objections to an election. Odum Sausage Co., 256 NLRB 284, 107 LRRM 1226 (1981). That interpretation seems consistent with the text of the governing regulation. 28 C.F.R. § 102.69(g). We may not decide the question in this case, however, because “[n]o objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” 29 U.S.C. § 160(e). Neither in its exceptions to the regional director’s report nor in its motion for reconsideration of the certification order nor in its answer to the general counsel’s unfair practice complaint, nor in its opposition to the general counsel’s motion for summary judgment was this contention mentioned. Whatever may be its merits we may not consider it. E.g., NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 322, 82 S.Ct. 344, 347, 7 L.Ed.2d 312 (1961). III. Conclusion Since both of ARA’s objections to certification of the Union are without merit, and it tenders no other reason for its refusal to bargain, the Board’s order will be enforced in full. International Ladies’ Garment Workers’ Union, AFL-CIO, 214 NLRB 706 (1974). . The statement in relevant part reads: I was the Company’s observer during the NLRB election. Mary Ann Ysebaert was the Union observer. When the employees came into vote, Ysebaert would say “I’m sorry, but your name please, I have to do this.” There were two NLRB agents, they said nothing when she did all the talking and gave the voters the impression that the Union and not the Government was running the election. Ysebaert would tell me, “Wait a minute, wait and [sic] minute,” right in front of the voters, making it seem she was in charge of the voting procedure. The Board agents never stopped her from appearing to take charge of the voting [indecipherable]. Elaine Taylor, a grill employee, stated that if Mary Ann Ysebaert didn’t seem to run the election, this could not have happened: Taylor told this to Beulah Boulware, who prepares sandwiches. . Pursuant to Section 102.69 of the Board’s Rules and Regulations, ARA Services, Inc., Employer in the above-captioned proceeding, by its undersigned counsel, excepts to the Regional Director’s Report on Objections (the “Report”), as follows: 1. To the failure (Report at 3) to find that the Petitioner, through its agents, supporters and adherents threatened certain employees with physical harm' and social ostracism if they voted against union representation. 2. To the erroneous finding (Report at 4) that Employees Fusco and Reisner did not either act with apparent authority or be perceived by unit employees as having the authority to act on behalf of the Union when they threatened certain employees with physical harm and social ostracism. 3. To the erroneous conclusion by the Regional Director (Report at 3) that Employer’s proffered unit employee Woodruff, failed to take the threats of physical harm and social ostracism seriously. 4. To the failure to find (Report at 5-6) that the Union through its agents attempted to influence Employee Smith to vote for the Union by promising him material gifts. 5. To the failure to (Report at 2-4) sustain Objection No. 1 as supported by the evidence. 6. To the failure (Report at 2-4) to set aside the election on the basis of Objection No. 1. 7. To the failure (Report at 2-4) to order an evidentiary hearing be conducted on the substantial material issues, including matters of testimonial credibility, raised by Objection No. 1. 8. To the failure to find (Report at 6) that the conduct of Board Agent Muraskin was inadequate to create the impression that the Government and not Petitioner was in fact running the election. 9. To the inaccurate finding (Report at 6) that Petitioner’s observer did not influence the outcome of the election by his actions during the actual election. 10. To the failure to (Report at 5-6) sustain Objection No. 2 as supported by the evidence. 11. To the failure to (Report at 5-6) set aside the election on the basis of Objection No. 2. 12. To the failure (Report at 5-6) to order an evidentiary hearing be conducted on the substantial and important questions raised by Objection No. 2. 13. To the failure (Report at 6) to sustain both Objections, set aside the election, and/or order an evidentiary hearing be conducted. . In 1982, the Board amended 29 C.F.R. § 102.-69(d) to read as follows: (d) In issuing a report on objections or challenged ballots, or both, following proceedings under §§ 102.62(b) or 102.67, or in issuing a decision on objections or challenged ballots, or both, following proceedings under § 102.67, the regional director may act on the basis of an administrative investigation or upon the record of a hearing before a hearing officer. Such hearing shall be conducted with respect to those objections or challenges which the regional director concludes raise substantial and material factual issues. Even if we were to conclude that the amended regulation should have been anticipated by the Board that would not change the outcome since the decision as to substantiality and materiality is still vested in the Regional Director in the first instance. . ARA did not file a section 158(b)(1) unfair labor practice charge against the Union.
ADAMS, Circuit Judge, concurring. I concur with the majority, but believe that certain issues raised by the dissent merit additional comment. At bottom, this case turns on the relationship between an administrative agency’s internal procedures and the standard of review by an appellate court. Because judicial review provides an inappropriate occasion for the imposition of court-crafted rules regulating intra-agency procedures, I join the majority in ruling that the order of the National Labor Relations Board must be enforced. Undoubtedly, arguments may be advanced, perhaps even persuasively, for the use of full adversarial proceedings rather than agency investigations when representation election impropriety is alleged. Unless procedural preference rises to the level of constitutional imperative, however, the decision whether to utilize an investigation or to employ a full hearing is best left to the discretion of the NLRB. There can be no mistaking the Supreme Court’s instruction that “absent constitutional constraints or extremely compelling circumstances the administrative agencies should be free to fashion their own rules of procedure.” Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). We may not deny enforcement of a bargaining order merely because we would prefer another result, or even because we believe that the NLRA could be read to support a conclusion contrary to that adopted by the Board. Rather, we are mandated to enforce orders of the Board so long as “the Board’s construction ..., while it may not be required by the Act, is at least permissible under it” NLRB v. Transportation Management Corp., — U.S. —, 103 S.Ct. 2469, 2475, 76 L.Ed.2d 667 (1983), citing NRLB v. Weingarten, 420 U.S. 251, 266-67, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975). See NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963); Giacalone v. NLRB, 682 F.2d 427, 430 (3d Cir.1982). My dissenting colleagues, particularly in section III A of their opinion, seek to substitute the summary judgment standard drawn from Rule 56 of the Fed.R.Civ.Pro. for the NLRB’s discretionary approach to evidentiary hearings of this nature. Such a standard would require a full evidentiary hearing whenever a colorable claim of an election interference is raised before the Board. The Board’s amended regulation, to which the dissent ascribes great importance, provides only that the NLRB’s regional director “may act upon the basis of an administrative investigation or upon the record of a hearing before a hearing officer” and that such discretion is left to the regional director’s determination whether the allegations “raise substantial and material factual issues.” 29 C.F.R. § 102.69(d) (1982). In the situation here, there is no claim that the alleged threats were made by the union or its representatives, and the investigation makes it clear that neither the union nor its representatives were involved. Although hearings frequently serve a useful purpose, requiring a hearing regardless of the factual setting promotes undue delay in the administrative process at the expense of the freedom of choice of the workers. Season-All Industries, Inc. v. NLRB, 654 F.2d 932, 942 (3d Cir.1981) (Adams, J., dissenting). Almost four years have now passed since the employees of ARA sought to avail themselves of the right to collective bargaining guaranteed by the National Labor Relations Act. Given the sparseness of the factual challenge and the fact that an independent investigation disclosed nothing to augment the unverified statement of one employee, I decline to join in an endeavor that would make this already cumbersome process any more protracted. Appellate courts must be mindful of the capacity of legal and administrative delay to frustrate the statutory rights afforded employees under the NLRA.
GARTH, Circuit Judge, dissenting, with whom HUNTER, WEIS and BECKER, Circuit Judges, join. I cannot agree with the opinion announcing the judgment of the court for at least two major reasons. First, that opinion gives no recognition to the principle that all elections, including representation elections, should be conducted under laboratory conditions — “as nearly ideal as possible,” so that employees may make a free and fair choice of a bargaining representative if they desire one. Thus it discounts those cases, including the Board’s own decisions, which have set aside elections where employees have been subjected to fear and intimidation. Second, Judge Gibbons, in announcing the opinion of the court, ascribes to Congress an intention to permit Regional Directors, and then the Board, an almost unreviewable discretion in the determination of objections raised to an election. The opinion compounds that error by failing to give proper recognition to the Board’s own regulations and by failing to announce a standard by which such discretionary determinations may be measured. A. In Judge Gibbons’ opinion, he states that, under now repealed regulations of the NLRB, the Board is not required to hold a hearing even if “substantial and material factual issues” exist. This is so even if resolution of the issue turns on credibility determinations of the witnesses for the contesting parties. That principle ignores the fact that the election results at issue here, turned upon one vote and that the alleged election irregularity involved threats of violence and retaliation. I believe that under the principles enunciated by the Supreme Court in Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974) and United States v. Schooner Peggy, 1 Cranch (5 U.S.) 103, 2 L.Ed. 49 (1801), we are bound to apply the revised regulations of the Board to a case still on appeal, which require a hearing when factual issues are disputed, rather than those in effect before September 15, 1981. I also believe that, pursuant to 29 C.F.R. § 102.69(d) (1982), and the fairness requirements of the due process clause, ARA should have been afforded a hearing on its objections with respect to Woodruff’s crucial vote. It is clear to me that Woo-druff’s statement — that two pro-union spokesmen threatened him with violence and retaliation unless he voted for the union — raised “substantial and material issues of fact” which, if believed, would warrant setting aside the election as a matter of law. Further, even if I were to apply the now superseded regulations in existence at the time ARA’s objections were filed, I could only conclude, on the basis of the reasoned opinions of other courts of appeals, including this court’s previous decisions which have been accepted and relied upon by other circuits, that ARA was entitled to a hearing with respect to Woodruff’s charges. Because Judge Gibbons’ opinion fails to apply the regulation now in force, adopts a standard of review of the now repealed regulation inconsistent with the Board’s own interpretation (see n. 5 infra) and inconsistent with that adopted by other courts of appeals, and incorrectly concludes that Woodruffs statement did not raise “substantial and material factual issues” with respect to the union status of Reisner, and Fusco, or independently, with respect to whether the threats, if actually made, created an atmosphere of fear rendering a fair election impossible, I would deny enforcement to the Board’s order and remand the case for an evidentiary hearing. It is for these reasons that I have not joined Judge Gibbons’ opinion announcing the judgment of the court and respectfully dissent. I. A. Over 180 years ago, Chief Justice Marshall explained that: [I]f subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. United States v. Schooner Peggy, 1 Cranch (5 U.S.) 103, 110, 2 L.Ed. 49 (1801). The Supreme Court has never deviated from this teaching. See Cort v. Ash, 422 U.S. 66, 74-77, 95 S.Ct. 2080, 2086-87, 45 L.Ed.2d 26 (1975) (a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is a statutory direction or legislative history to the contrary); Bradley v. Richmond School Board, 416 U.S. 696, 711-716, 94 S.Ct. 2006, 2016-19, 40 L.Ed.2d 476 (1974) (change in the law must be given effect unless there was a clear indication that it was not to apply in pending cases). In Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), the Supreme Court made plain that the rule of Schooner Peggy applies with equal force “where the change is made by an administrative agency acting pursuant to legislative authorization.” Thorpe, supra, 393 U.S. at 282, 89 S.Ct. at 526. Thorpe also “stands for the proposition that even where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect.” Bradley, supra, 416 U.S. at 715, 94 S.Ct. at 2018. Applying the standard enunciated in Thorpe to the present case, it is manifest to me that we must apply the Board regulations in effect after September 15, 1981, as amended. B. The Board itself has provided us with an interpretation of the amended regulation 29 C.F.R. § 102.69(d) (1982). This interpretation was made so as to make the Board’s application of its regulation consonant with that of the various courts of appeal. The Board stated that: In N.L.R.B. v. Claxton Manufacturing Company, Inc., 613 F.2d 1364, 103 LRRM 2980 (5th Cir.1980), the court held that due process requires that a hearing be conducted 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 Regional 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 objecting party] has pointed him toward it, whether it favors the successful party or the objector and regardless of whether it was referred to by the objector’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 reexamined its procedures for disposing of postelection objections to the conduct of elections. On September 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 acknowledged the criticism by the courts of the Board’s failure to hold hearings on election objections in a situation when, in the opinions of the courts, the “substantial and material factual issues” standards of the Board’s Rules and Regulations required it to do so. The revisions in the Board’s Rules and Regulations make clear that ex parte investigations are not to be used to resolve “substantial 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 challenges 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 asserted threat came sometime after the victim expressed his support for the Employer to his fellow employees. 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. In this case, we find that the record contains inconsistent statements with respect to the circumstances surrounding the alleged threat. The resolution of these conflicts by the Regional Director was improper and requires that we remand this proceeding for further hearing. Accordingly, we shall remand this proceeding to the Regional Director for him to arrange a hearing on the Employer’s Objection 1. Erie Coke & Chemical Co., 261 N.L.R.B. No. 8, 109 L.R.R.M. 1373, 1374. Therefore, Judge Gibbons’ conclusion that, under the law applicable in this case, the Regional Director could deny a hearing even in the face of “substantial and material issues of fact,” must fall. As the Board itself has made clear, under the 1981 amendments to the regulations, the Regional Director could not resolve the factual conflict without an adversary hearing between the Union’s position on the one hand, and the Company’s Objection and Woodruff’s statement on the other. A hearing is required whenever the objecting party establishes the existence of factual disputes of a substantial and material nature which, if resolved in its favor, would warrant setting aside the election. II. A. Even if the regulation in force at the time that ARA filed its election objections were to govern the resolution of this case, it is plain to me that a hearing was required in this ease because “substantial and material issues of fact” were raised by ARA. Judge Gibbons’ opinion has construed 29 C.F.R. § 102.69(d) (1981) to allow the Regional Director to hold no more than an ex parte inquiry in the broad exercise of his discretion, even where “substantial and material” issues appear. Moreover, his opinion would establish the Board’s discretion as the scope of review over the Regional Director’s exercise of his discretion. Thus the analysis outlined by Judge Gibbons has first given a virtually unreviewa-ble status to the determinations of the Regional Director and the Board, and second, in approving this two-level discretionary review, has failed to provide any standard by which the unbridled discretion granted to the Regional Director and the Board, may be measured and thus reviewed. Such a status is at variance with the tests prescribed by other courts of appeal, and indeed, by this court notwithstanding the exposition set forth in Judge Gibbons’ opinion. As I have just explained in the preceding section, even the Board itself did not, and presently would not, claim for either the Regional Director or itself, the very generous discretionary determinations which the majority has now granted to each of them. Indeed, it was the very standard which the various courts of appeal announced, that led the Board to clarify its own procedures in the .1982 regulations and those procedures, as we have noted, did no more than restate the principles inherent in the Board’s earlier regulations. B. The standard, for obtaining an evidentia-ry hearing where an election is challenged, as explained by the Ninth and Fifth Circuits, is representative of the standard adhered to in the other circuits. In NLRB v. Advanced Systems, Inc., 681 F.2d 570 (9th Cir.1982), the court explained that: To obtain a hearing, a party must make a prima facie showing of substantial and material factual issues that would, if true, warrant setting aside the election .... If, however, there are substantial and material factual disputes between the election report and the exceptions, a hearing is required. Id., 681 F.2d at 572. Pinetree Transportation Co. v. NLRB, 686 F.2d 740 (9th Cir.1982), noted that, “[b]y ‘material’ we mean that the facts offered by the objecting party, if accepted as true, must warrant a conclusion in favor of that party on the issue of the validity of the election.” Id., 686 F.2d at 745 (citing Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir.1981)); see also May Department Stores v. NLRB, 707 F.2d 430, 432 (9th Cir.1983); Scintilla Power Corp. v. NLRB, 707 F.2d 419 (9th Cir.1983); NLRB v. Eskimo Radiator Manufacturing Co., 688 F.2d 1315 (9th Cir.1982); NLRB v. Belcor, Inc., 652 F.2d 856, 858-859 (9th Cir.1981). The standard applied in the Fifth Circuit, announced in Glaxton Manufacturing, supra, is almost identical to that applied in the Ninth Circuit. In Hickory Springs Manufacturing Co. v. NLRB, 645 F.2d 506 (5th Cir.1981) the court explained that: In our circuit, it is settled that when an objector such as Hickory Springs makes out a prima facie case by its affidavits the Board must grant a hearing and may not conclude that one is unwarranted by “considering matter turned up by the regional director, ... weighing the relative factual data and ... making credibility determinations.” N.L.R.B. v. Claxton Manufacturing Co., [supra, 613 F.2d at 1373], Id., 645 F.2d at 508. Acknowledging that a hearing is not required in every case to determine the validity of election objections, the court concluded that no hearing is required “where if all the facts contended for by the objecting party ‘were credited no ground is shown which would warrant setting aside the election.’ ” Birmingham Ornamental Iron Co. v. NLRB, 615 F.2d 661, 663 (5th Cir.1980), quoting in part NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir.) cert. denied 389 U.S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967). See NLRB v. Polyflex Co., 622 F.2d 128 (5th Cir.1980); ED