Knoch, Castle, and Fairchild, Circuit Judges.
FAIRCHILD, Circuit Judge:
Macomb Pottery Company seeks review of the National Labor Relations Board finding that the company refused to recognize and bargain collectively with International Brotherhood of Operative Potters, AFL-CIO, and ordering the company to do so.
In an election February 11, 1965, the company's production and maintenance employees voted 73 to 57 (with one additional ballot being void and four challenged) for representation by this union. The board certified the union July 21, 1965, but the company has refused to recognize and bargain with it. These facts are undisputed. The only issue raised by the company's answer to the unfair labor practice complaint was, in essence, that the board should have declared the election invalid and should not have certified the union.
After the election, the company had filed timely objections, stating that conditions created by the union "made impossible a sober, informed exercise by the employees of their right to vote in said election without coercion and restraint." The regional director conducted an investigation, and made a report, recommending that the objections be overruled. The company filed exceptions, attacking the reasoning and conclusions of the regional director, but not asserting the existence of any particular evidence to refute the conclusions drawn. The board adopted the regional director's recommendations and certified the union.
On September 28, 1965, the board issued a complaint, alleging refusal to bargain. The company answered, challenging the election and certification. The general counsel moved for "summary judgment on the pleadings." The trial examiner ordered the company to show cause why the motion should not be granted, and to set forth a summary of any evidence, newly discovered or not available during the representation proceeding, which the company would proffer to attack the certification. The order stated that its purpose was to enable the examiner to determine whether there was any factual issue necessitating the taking of evidence. The company produced no summary of evidence, but replied that it had a statutory right to a hearing and that a motion for summary judgment cannot be granted in an unfair labor practice proceeding.
The examiner concluded there were no matters requiring a hearing, granted the motion for judgment on the pleadings, and recommended an order which the board adopted, and is now under review.
The position of the board is that the company's objections to the election have been adequately litigated and determined, albeit without a hearing, in the representation case. The examiner in the unfair labor practice proceeding afforded an opportunity for the company to produce newly-discovered or previously unavailable evidence, if material. The company apparently was unable to produce such evidence; at least it declined to furnish the invited summary. Thereupon the examiner granted the general counsel's motion. The validity of this procedure has been decided or assumed in at least two cases.*fn1 Although 29 U.S.C.A. § 160, the statute governing the unfair labor practice proceeding, does require "a notice of hearing" and provides to the person complained of the right "to appear in person or otherwise and give testimony," it cannot logically mean that an evidentiary hearing must be held in a case where there is no issue of fact.
29 U.S.C.A. § 159 governs the representation proceeding and subs. (d) thereof provides that where there is a petition for enforcement or review of an order in an unfair labor practice proceeding, based upon facts certified after a representation proceeding, the record in the representation proceeding shall be included in the record filed in court. Thus review of the propriety of the certification is accomplished by a review of the record in the representation proceeding, the certification having, as here, been relied on as a verity in the unfair labor practice proceeding.
29 U.S.C.A. § 159 does not require a hearing in the representation proceeding upon objections filed after an election. The board's rules require a hearing on such objections only "if it appears to the regional director that substantial and material factual issues exist which can be resolved only after a hearing.*fn2
The general standard for judicial review of a certification is whether the board abused its discretion.*fn3 And where the challenge is based, as here, upon the fact that the objections were disposed of without hearing, the question is whether the objecting party's exceptions to the report or findings of the regional director show that there were substantial and material issues of fact which could be resolved only after a hearing.
As stated by the ninth circuit:
"'These exceptions do not directly meet or mention any of the facts found by the Regional Director and raise no factual issues whatsoever. They do not suggest what new facts a hearing would develop or what if any evidence would be produced. They simply question the ultimate interpretation placed by the Director upon certain conduct. A hearing apparently would not deal with matters of factual proof ...