We review the Board's denial of an evidentiary hearing for an abuse of discretion. See NLRB v. Shrader's, Inc., 928 F.2d 194 (6th Cir. 1991). Recently, in Office Depot, Inc. v. NLRB, ___ F.3d ___, 1999 WL 556443 At *4 (6th Cir. Aug 2, 1999), we held that "only when objecting parties show the existence of `substantial and material factual issues'" is a hearing required, citing 29 C.F.R. § 102.69(d) and Tennessee Packers v. Frosty Morn Div., 379 F.2d 172, 177-78 (6th Cir. 1967).
To make this showing, the Union must demonstrate that "unlawful conduct occurred which interfered with employees' exercise of free choice to such an extent that it materially affected the result of the election." NLRB v. Shrader's, Inc., 928 F.2d 194, 196 (6th Cir. 1991). The Board exercises primary responsibility in controlling certification elections.
In order to satisfy its burden, the objecting party must demonstrate that "unlawful conduct occurred which interfered with employees' exercise of free choice to such an extent that it materially affected the result of the election." NLRB v. Shrader's, Inc., 928 F.2d 194, 196 (6th Cir. 1991). Because the "Board has broad discretion to determine whether the circumstances of an election have allowed the employees to exercise free choice in deciding whether to be represented by a union," NLRB v. Duriron Co., Inc., 978 F.2d 254, 256-57 (6th Cir. 1992), the Board's findings with respect to whether an election reflected the "fair and free choice" of the employees "will not be disturbed on appeal where there is substantial evidence in the record as a whole to support its conclusions."
To meet this burden, "the objecting party must demonstrate that `unlawful conduct occurred which interfered with employees' exercise of free choice to such an extent that it materially affected the result of the election.'" Contech Div., SPX Corp. v. NLRB, 164 F.3d 297, 305 (6th Cir. 1998) (quoting NLRB v. Shrader's, Inc., 928 F.2d 194, 196 (6th Cir. 1991)), cert. denied, 120 S.Ct. 64 (1999). While the Board strives to achieve "laboratory conditions" during representation elections, we have recognized that this can be an elusive goal, and so "elections are not automatically voided whenever they fall short of perfection."
A party seeking to overturn a representation election bears the burden of demonstrating that "unlawful conduct occurred which interfered with employees' exercise of free choice to such an extent that it materially affected the results of the election." NLRB v. Shrader's Inc., 928 F.2d 194, 196 (6th Cir. 1991). To overturn an election "based upon the misconduct of third parties," Multi-Flow must demonstrate that the "`misconduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible.'"
To establish that the representation election violated § 8(b)(1)(A) of the National Labor Relations Act, Precision bears the burden of demonstrating that "unlawful conduct occurred which interfered with employees' exercise of free choice to such an extent that it materially affected the results of the election." NLRB v. Shrader's Inc., 928 F.2d 194, 196 (6th Cir. 1991). The Board will overturn an election based upon the misconduct of third parties only if that "misconduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible."
In order to satisfy its burden, the objecting party must demonstrate that "unlawful conduct occurred which interfered with employees' exercise of free choice to such an extent that it materially affected the result of the election." NLRB v. Shrader's, Inc., 928 F.2d 194, 196 (6th Cir. 1991). Because the Board has "broad discretion to determine whether the circumstances of an election have allowed the employees to exercise free choice in deciding whether to be represented by a union," Duriron, 978 F.2d at 256-57, "[t]he Board's findings with respect to whether an election reflected the `fair and free choice' of the employees `will not be disturbed on appeal where there is substantial evidence . . . to support its conclusions.'"
In order to satisfy its burden, the objecting party must demonstrate that "unlawful conduct occurred which interfered with employees' exercise of free choice to such an extent that it materially affected the result of the election." NLRB v. Shrader's, Inc., 928 F.2d 194, 196 (6th Cir. 1991). On the other hand, for the Board to set aside the results of an election, "[i]t is not necessary that conduct which interferes with the freedom of choice in an election actually constitute an unfair labor practice."
The union could not reasonably assert that it sought to recompense the employee for union work; the union owed the employee no money. Finally, in NLRB v. Shrader's, Inc., 928 F.2d 194 (6th Cir. 1991), we held that an employer had shown a prima facie case for invalidating an election because the union had offered union-embossed hats and T-shirts to employees either as a "bribe or reward for voting for the union." Id. at 196.
Because it is the party that seeks to overturn the results of the representation election, Colquest bears the burden of demonstrating that there exist material issues of fact concerning whether the objectionable conduct affected the results of the election. See NLRB v. Shrader's, Inc., 928 F.2d 194, 196 (6th Cir. 1991). Specific evidence that the unlawful acts occurred is required; it must establish that the NLRB could reasonably infer that the conduct interfered with the voters' exercise of free choice.