Lumbard, Chief Judge, Feinberg, Circuit Judge, and Timbers, District Judge.*fn*
This case presents chiefly the question whether the National Labor Relations Board should have set aside a representation election because of alleged irregularities in its conduct, the Board having concluded that "desirable election standards were met and that no reasonable possibility of irregularity inhered in the conduct of this election."*fn1 Subordinate questions presented are whether the Board should have held a hearing on the company's objections to the election and whether the Board was justified in refusing the company's request to inspect a Board document entitled "A Guide to the Conduct of Elections."
Polymers, Inc., a Vermont corporation engaged at Middlebury in the manufacture, sale and distribution of synthetic fibers, has petitioned for review of an order of the Board which directed it to cease and desist from refusing to bargain collectively with Teamsters, Chauffeurs, and Warehousemen's Local 597, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The Board has cross-petitioned for enforcement of its bargaining order. The key issue is whether the Board's certification of the union is valid; if so, the company's admitted refusal to bargain violated Section 8(a)(5) and (1) of the Act.
We hold that the Board did not abuse its discretion in finding, without a hearing, that the alleged irregularities in the conduct of the representation election, considered in light of all the facts and circumstances surrounding the election, did not raise a reasonable possibility of irregularity and thus did not require that the election be set aside. We also hold under the circumstances of this case that the Board was justified in refusing to produce the Guide.
Accordingly, we deny the petition of the company to set aside the order of the Board, and we enforce the Board's order.
The essential facts regarding the conduct of the election are not in dispute. A split session election was held on November 15, 1966 at the company's plant in Middlebury. After the first morning session, the ballot box was sealed, taped and signatures were affixed. The Board agent in charge of the election then placed the box in the rear of his station wagon, along with a leather brief case containing blank ballots. The station wagon was locked. The agent, along with the company and union observers, walked to a nearby diner for coffee. The ballot box and blank ballots remained in the locked station wagon parked 50 to 75 feet from the diner during the 30 to 45 minute period that the agent and observers were in the diner.
After the midmorning voting session, the ballot box again was sealed and signatures were affixed. The Board agent placed it under a sweater in the rear of his station wagon which he again locked. Taking the brief case with the blank ballots along with him, he remained away from the station wagon from approximately 11 A.M. to 2 P.M.
No objections were interposed, nor suspicions voiced, by the company to these procedures until after the ballots were counted and the union victory was made known.*fn2 The company thereafter asserted that the failure of the Board agent to adhere to appropriate safeguards in the sealing and custody of the ballot box, and in the security of the blank ballots, required that the election be set aside due to the existence of a "possibility of irregularity." Specific alleged deficiencies included (1) sealing of ballot box edges and slot with (easily removable) masking tape instead of gummed paper; (2) signing of names wholly on tape without continuation onto cardboard surface of ballot box; (3) taping slot and signatures without extending tape onto cardboard surfaces; (4) failure of the Board agent to ask observers whether they were satisfied with the manner of sealing; and (5) failure of the Board agent to retain the box in his custody between polling periods.
In addition to the above specific alleged deficiencies, the company's suspicions were aroused by the appearance of many ballots in neatly creased stacks at the time of initial tabulation, and the shift in sentiment from the results of a previous election,*fn3 contrary to indications the company is said to have had from its employees. On the basis of these factors, the company objected to the election.
The regional director conducted an investigation into the alleged irregularities. The Board affirmed his findings. Although the Board recognized that the conduct of the election did not comport with optimal safeguards of accuracy and security, and it acknowledged that the sealing of the ballot box could have been improved upon, it concluded that "desirable election standards were met and that no reasonable possibility of irregularity inhered in the conduct of this election." Enlarging upon its specification of the "reasonableness" of the possibility as a determinative factor, the Board stated:
"We do no think, however, that the word 'possibility' could ever be construed in this context to have the connotation of 'conceivable.' The concept of reasonableness of the possibility must be ...