On the day of the election, about two and a half hours before it began, representatives of the company made a round of the stores and addressed the employees, who were relieved of their duties and assembled for the purpose, and urged them to vote against the union. The company operated five retail grocery stores in Virginia near the City of Washington, whose 66 employees were found by the Board to constitute an appropriate bargaining unit and the Board directed that an election be held to determine their wishes as to bargaining representatives. The facts, although inadequately set forth in the report of the Regional Director who conducted the election, are not in dispute. Because we cannot police the details surrounding every election, and because we believe that in the absence of excessive acts employees can be taken to have expressed their true convictions in the secrecy of the polling booth, the Board has exercised this power sparingly. When a record reveals conduct so glaring that it is almost certain to have impaired employees' freedom of choice, we have set an election aside and directed a new one. For this reason the Board has sometimes set elections aside in unconsolidated representation cases, in the absence of any charges or proof of unfair labor practice.
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An election can serve its true purpose only if the surrounding conditions enable employees to register a free and untrammeled choice for or against a bargaining representative. "Conduct that creates an atmosphere which renders improbable a free choice will sometimes warrant invalidating an election, even though that conduct may not constitute an unfair labor practice. For the courts to substitute their judgment for that of the Board in such matters would be for them to undertake an impossible task and entirely to misconceive their function under the statute." * * * it certainly was for the Board and not the courts to exercise the discretion as to when the election should be held, upon what payroll eligibility to vote should be determined and whether or not the election should be set aside for irregularities in procedure. In so far as the certification involves the exercise of discretion, that is a matter with which we are powerless to interfere so long as the Board acts within the limits of the law. ยง 160, the certification must be sustained in so far as fact questions are concerned, if the fact findings of the Board made in connection therewith are based upon substantial evidence. this court said: "The determination of bargaining representatives under the act is a matter that Congress has entrusted to the Board, not to the courts and when, as here, a certification is called in question in connection with a petition to enforce or review an order of the Board under section 10, 29 U.S.C.A. National Plastic Products Co., 175 F.2d 755, 758. Interference in those matters constituted error on the part of the court below." In N. 704, in which an election was invalidated by the Board, "The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone.
Whether a representation election has been conducted under conditions compatible with the exercise of a free choice by the employees, is a matter which Congress has committed to the discretion of the Board.
427) but we need not consider this modification of the rule, as it is perfectly clear that the action of the Board cannot be condemned as arbitrary or unreasonable under the original rule which it applied.
Since then the rule has been modified so that it is now held that an election is invalidated if either side addresses the employees on company time and premises within 24 hours of an election, irrespective of the opportunity to reply (see Peerless Plywood Co. The election was accordingly set aside on the basis of the rule which the Board was enforcing at the time to the effect that an election would not be allowed to stand if the employer immediately preceding the election had addressed the employees on company time and on company premises without allowing the union an adequate opportunity to reply.