The opinion
MEDINA, Circuit Judge
(concurring).
I concur but with some misgivings. That the Board has been given a wide discretion in its supervision of elections under the Act seems wise and is probably all but indispensable, if a fair and proper regard is to be had for the great variety of local conditions under which these elections are held. There is substantial evidence to support the findings; and in all probability the reference to the 100 foot rule which obtains under the New York Election Law, McK.Consol. Laws, c. 17, Sections 161, 193, subds. 2, 4, was brought in after the event as a sort of make-weight. That it has no bearing on the case seems evident, as the elections conducted under the Act are of a character essentially different from those to which the New York statute is applicable, and one of the important safeguards provided in the statutory scheme under consideration is the exercise by the Board of a discretion which takes account of the particular circumstances under which each of these elections is held. Giving any consideration whatever to such rules of thumb may well cause confusion and possible injustice, with little or no benefit to employer or employee.
When Gozier, a representative of the employer, complained to the Board agent the record shows that the Board agent “sent for the Union Representative and, having both the Union Representative and Mr. Gozier before her, stated to both of them in substance that it was up to both parties to conduct themselves so there would not be any grounds for valid objection to the election.” This was a strange procedure, as no suggestion was then or later made that the employer had done anything whatever to coerce or influence the employees. Its conduct had evidently been beyond reproach. This remark by the Board agent has been interpreted as an indication that she had considered the complaint, made whatever inquiry was necessary, and had reached the conclusion that there had been no improper conduct by the union representative. But it surely could have been interpreted differently by those who were participating in the election, especially as the union representative returned at once to, and remained for some little time in the position where he had previously been seen in his car talking to the men as they came out of the plant and proceeded up the path to the voting place. Perhaps the comment was intended as some evidence of impartiality. If so the choice of expression was, to say the least, unfortunate and misleading. But this falls short of any showing that the Board failed to exercise its discretion.