Before DUFFY, KNOCH and SWYGERT, Circuit Judges.
KNOCH, C.J.: This matter is before us on the petition of Rockwell Manufacturing Company, Kearney Division, hereinafter called "Rockwell," to review*fn1 and set aside the decision and order*fn2 of the National Labor Relations Board.
The Board found that Rockwell violated § 8(a)(5) of the National Labor Relations Act, by refusing to recognize and to bargain with United Steelworkers of America, AFL-CIO, hereinafter called the "Union," as the authorized representative of Rockwell's employees, and by granting unilateral benefits to Rockwell employees; and that Rockwell further violated § 8(a)(1) by coercive interrogation of employees concerning their union activities and sympathies, and by threatening reprisals or promising benefits to induce abstention from such activity.
In its answer, the Board has requested enforcement of its order. No jurisdictional issue is presented.
On February 19, 1962, the Union filed a representation petition with the Board seeking certification as bargaining agent for Rockwell's employees.
On March 6, 1962, Rockwell and the Union entered into a Stipulation for Certification upon Consent Election to be held March 21, 1962, at Rockwell's plant in Kearney, Nebraska.
We need not detail the facts on which the Board bases its finding of § 8(a)(1) violation through interrogation, prior to the election, as Rockwell states it will not contest these findings, although in Rockwell's opinion, the Board did not correctly resolve the issues of credibility involved in assessing and weighing the testimony.
The election was held, and the Union won by 50 to 49, with one ballot held to be void. Rockwell filed timely objections to the election, alleging that a general atmosphere of anxiety had been created among the employees prior to the election, by Union suggestions to use force in enlisting members, threats of physical harm to non-Union supporters, and Union instruction in making paint bombs for possible use against the latter.
These objections were investigated by the Board's Regional Director who recommended they be overruled. Rockwell filed exceptions to this report. The Board sustained the Regional Director's recommendations and certified the Union.
Rockwell posted a notice to its employees indicating that it would not bargain with the Union because it felt that it had been denied due process and proper hearing on the matter of Union intimidation; that Rockwell would force the matter into the federal courts by refusing to accept the Board's decision in an effort to protect the interests of its employees.
Accordingly Rockwell refused to meet and bargain with the Union. In November, 1962, certain wage increases, an additional paid holiday, and some medical benefits were granted unilaterally without notice to or consultation with the Union. Rockwell explains that it was precluded from consulting with the Union as it hoped by non-recognition to secure a hearing on its charges that the Union had been guilty of coercion of Rockwell's employees in the preelection period.
The Board asserts that in its objections Rockwell raised no issue which would justify setting aside the election. Whether to set aside an election because of incidents during the campaign period is a matter for the sound discretion of the Board. As has been frequently remarked:
Several of the incidents on which Rockwell's objections rested occurred during the critical period, i.e. after the consent to election. After certification of the Union, the Board changed its procedures, effective prospectively only, to consider (as grounds for setting aside a consent election) such ...