PARKER, Chief Judge.
This is a petition to enforce an order óf the National Labor Relations Board directing the Shirlington Supermarket and its subsidiaries to bargain with a union which had been chosen and certified as a bargaining representative of their employees. No unfair labor practice other than the refusal to bargain is involved in the case. The refusal to bargain was. based upon the fact that the union had lost a representation election on September 6, 1952, which the Board had set aside, the employer contending that this action of the Board was void and that the subsequent election of February 7, 1953, at which the union won, was likewise void bfecause held within twelve months of the first election. The only question in the case is whether the action of the Board in setting aside the first election was so unreasonable as to amount to an abuse of discretion on its part in the exercise of the power vested in it to supervise and conduct representation elections.
The facts are that the Regional Director of the Board, who investigated the election upon complaint of the union, filed a report in which he recommended that the election be set aside on the basis, of the following finding:
“Investigation reveals that eligible employees were temporarily relieved of their duties, assembled, and addressed on company time and [651]*651property by employer-representatives who, inter-alia, urged the employees to vote against the Union. These speeches began approximately 1% hours before the start of the election and in some instances were being delivered while the election was actually in progress.
“In the opinion of the undersigned, the timing of the speeches denied a substantially equal opportunity for presentation of the Union’s views and was tantamount to a refusal to consider a request by the Union to reply. Nor was the timing of the employer’s speeches counteracted by the absence of evidence as to a no-solicitation rule or the opportunities which the Union may have had to present its views to the employees under such circumstances.”
The Board’s reasoning in setting aside the election was as follows:
“The Regional Director found that eligible employees were temporarily relieved of their duties, assembled, and addressed on company time and property by employer-representatives who, inter-alia, urged the employees to vote against the Union; and that these speeches began approximately 2y2 hours before the start of the election and in some instances were being delivered while the election was actually in progress. As to these findings, the Employer denies only that these speeches in some instances were being delivered while the election was actually in progress.
“Even accepting the employer’s denial, we find, as the Regional Director did, that the time of the speeches denied a substantially equal opportunity for presentation of the Union’s views and was tantamount to a refusal to consider a request by the Union to reply; and that the timing of the employer’s speeches was not counteracted by the absence of evidence as to a no-solicitation rule or the opportunities which the Union may have had to present its views to the employees under other circumstances. We find further, as we have under similar circumstances, that such conduct by the Employer was discriminatory and prejudiced that atmosphere we believe is essential to a fair exercise of their franchise by the voters.”
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. See Bonwit Teller, 96 N.L.R.B. 608. 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. et al., 107 N.L.R.B. 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. 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. N. L. R. B. v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322. As said in N. L. R. B. v. Waterman Steamship Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 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. Interference in those matters constituted error on the part of the court below.” In N. L. R. B. v. National Plastic Products Co., 175 F.2d 755, 758. this court said:
[652]*652“The determination of bargaining representátives 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. § 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. 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. * * * 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. 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.”
The question before us is, not whether the action of the- employer may be condemned as an unfair labor practice, but whether it furnished sufficient ground for the action of the Board in setting aside the election. While an unfair labor practice might or might not be ground upon which the Board would be justified in acting in invalidating an election, infringement of rules adopted to secure a fair and untrammeled expression by the employees would unquestionably furnish such ground. As was said by the Board in the case of General Shoe Corporation, 77 N.L.R.B. 124, 126, 127:
“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. 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.
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PARKER, Chief Judge.
This is a petition to enforce an order óf the National Labor Relations Board directing the Shirlington Supermarket and its subsidiaries to bargain with a union which had been chosen and certified as a bargaining representative of their employees. No unfair labor practice other than the refusal to bargain is involved in the case. The refusal to bargain was. based upon the fact that the union had lost a representation election on September 6, 1952, which the Board had set aside, the employer contending that this action of the Board was void and that the subsequent election of February 7, 1953, at which the union won, was likewise void bfecause held within twelve months of the first election. The only question in the case is whether the action of the Board in setting aside the first election was so unreasonable as to amount to an abuse of discretion on its part in the exercise of the power vested in it to supervise and conduct representation elections.
The facts are that the Regional Director of the Board, who investigated the election upon complaint of the union, filed a report in which he recommended that the election be set aside on the basis, of the following finding:
“Investigation reveals that eligible employees were temporarily relieved of their duties, assembled, and addressed on company time and [651]*651property by employer-representatives who, inter-alia, urged the employees to vote against the Union. These speeches began approximately 1% hours before the start of the election and in some instances were being delivered while the election was actually in progress.
“In the opinion of the undersigned, the timing of the speeches denied a substantially equal opportunity for presentation of the Union’s views and was tantamount to a refusal to consider a request by the Union to reply. Nor was the timing of the employer’s speeches counteracted by the absence of evidence as to a no-solicitation rule or the opportunities which the Union may have had to present its views to the employees under such circumstances.”
The Board’s reasoning in setting aside the election was as follows:
“The Regional Director found that eligible employees were temporarily relieved of their duties, assembled, and addressed on company time and property by employer-representatives who, inter-alia, urged the employees to vote against the Union; and that these speeches began approximately 2y2 hours before the start of the election and in some instances were being delivered while the election was actually in progress. As to these findings, the Employer denies only that these speeches in some instances were being delivered while the election was actually in progress.
“Even accepting the employer’s denial, we find, as the Regional Director did, that the time of the speeches denied a substantially equal opportunity for presentation of the Union’s views and was tantamount to a refusal to consider a request by the Union to reply; and that the timing of the employer’s speeches was not counteracted by the absence of evidence as to a no-solicitation rule or the opportunities which the Union may have had to present its views to the employees under other circumstances. We find further, as we have under similar circumstances, that such conduct by the Employer was discriminatory and prejudiced that atmosphere we believe is essential to a fair exercise of their franchise by the voters.”
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. See Bonwit Teller, 96 N.L.R.B. 608. 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. et al., 107 N.L.R.B. 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. 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. N. L. R. B. v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322. As said in N. L. R. B. v. Waterman Steamship Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 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. Interference in those matters constituted error on the part of the court below.” In N. L. R. B. v. National Plastic Products Co., 175 F.2d 755, 758. this court said:
[652]*652“The determination of bargaining representátives 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. § 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. 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. * * * 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. 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.”
The question before us is, not whether the action of the- employer may be condemned as an unfair labor practice, but whether it furnished sufficient ground for the action of the Board in setting aside the election. While an unfair labor practice might or might not be ground upon which the Board would be justified in acting in invalidating an election, infringement of rules adopted to secure a fair and untrammeled expression by the employees would unquestionably furnish such ground. As was said by the Board in the case of General Shoe Corporation, 77 N.L.R.B. 124, 126, 127:
“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. 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. 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. 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. 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. The question is one of degree.
“We think that the Board should apply no different standards in those occasional representation cases which happen to be consolidated with unfair labor practice proceedings for purposes of hearing and decision. On this record, therefore, although the respondent’s activities immediately before the election, as described in the Intermediate Report, are not held to constitute unfair labor practices within the meaning of the amended Act, certain of them created an atmosphere calculated to prevent a free and untrammeled choice by the employees.”
See also N. L. R. B. v. National Container Corp., 2 Cir., 211 F.2d 525; The Hills Bros. Co. et al., 100 N.L.R.B. 964.
Directly in point is the decision of the Court of Appeals of the Ninth Circuit in Foreman & Clark, Inc., v. N. L. R. B., 215 F.2d 396, 410, certiorari denied 348 U.S. 887, 75 S.Ct. 207, a case practically on all fours with the case at bar, where the court said:
[653]*653“Under the facts of this case, however, viewed in the light of the decisions applicable thereto, we agree with the Board’s determination that that tailor-shop employees constitute an appropriate bargaining unit, and with its decision to set aside the first election because of the Company’s last minute campaign speeches during working hours, under the circumstances already detailed. The latter decision was a proper exercise of the Board’s ‘wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.’ National Labor Relations Board v. A. J. Tower Co., supra, 329 U.S. at page 330, 67 S.Ct. at page 328.”
The fact that the Board no longer follows the holding of the Bonwit Teller case, to the effect that a non-coercive speech by an employer without adequate opportunity to reply is to be condemned as an unfair labor practice, is no reason why it should not hold such a speech prejudicial to a fair election and set aside the result of the election on that ground. The question here is not one of free speech or of unfair labor practices, but of the Board’s judgment in holding last minute, one-sided appeals to employees on company time and property prejudicial to a fair election and setting the election aside for that reason. The soundness of the Board’s judgment would seem to be demonstrated by the fact that the result of the election was different when the practices which the Board regarded as prejudicial were not engaged in. Certainly, we would not be justified in setting aside its action as an abuse of discretion in the light of the circumstances before us.
The order of the Board will be enforced.
Order enforced.