I concur specially.
RIVES, Circuit Judge (specially concurring)
As to the first proposition, the composition of the bargaining unit, I am in full agreement with my brothers.
The petition before this Court is for the enforcement of an order directing the respondent to bargain collectively with the Union as the exclusive representative of its employees, a duty imposed upon the respondent by 29 U.S.C.A. § 158(a)(5), if the Union has been legally and properly certified as such representa■f'ivp TVip nnpcstinTi ici wTipITipt* "Hip opt*-* tification of the Union as representative of respondent’s employees was a legal certification. Under the Act, this is the first occasion on which that question could be decided by the Court. 29 U.S.C.A. § 159(d); A. F. of L. v. National Labor Relations Board, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347; Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251.
Before this Court can say that the certification was not legal, it must be of the n 1 m „ opinion either that the Board made an „ , . . . ,, . error of law m making the certification „ , ,, „ ,. ,, ,, ,, , ... or that the findings of the Board with , , ,. , ,, , , respect to questions of fact were not ., ,, supported by substantial evidence on the ^ , .. . . , -y o record considered as a whole. 29 U.S. A 160(e).
The Board directed a hearing upon the material issues of fact raised with respect to 30 of the challenged ballots, and disposed of the challenges on that hearing. The Court is presented with no issue as to the challenged ballots.
The Board found that the respondent’s objections to the conduct of the election did not raise substantial and material issues and that no formal hearing was necessary.1 In effect the Board rendered summary judgment against the respondent on its objections to the conduct of the election. Those objections, supported by affidavits, seem to me to raise substantial and material issues as to whether the election had been so unfairly and improperly conducted that it could not be said to reflect the full and free expression of the will of the employees, and hence should be set aside. I think that th.6 Boil'd 8,fouS6(i its dlSCI*GtlOXl ill not according the respondent a hearing on its objections to the conduct of the election.
The main opinion contains some statements as to the duties of the Board’s agents in the conduct of the election, such for example as the following: “It was no part of the duties of the Board’s agent to question any applicant’s right to vote, but simply to make a correct record.” I am not sure that that is cor-rec+t; The conduct of the election is a ™atte/ entrusted by the Act to the Board, and it is no part of the function „ ,, ’ , , . 1 , _ of the Court to instruct the Board in ■ the details of such conduct. Not being 111 ,. , ,, ,, , . ., entire agreement with all that is said . ,, . . . ,, , m the mam opinion, but thinking that ,, „ , - . ... . ,, ,T • the Board erred m certifying the Union . , ,, aS rePreseniailve 01 respondent s employees without having first accorded the respondent a hearing on its objections to the conduct of the election, I concur specially in denying enforcement of the Board’s order.
. This was in accordance with Section 102.61 of the Rules and Regulations which provides that:
“If exceptions are filed * * * and it appears to the Board that such exceptions do not raise substantial and material issues with respect to the conduct or results of the election, the Board may decide the matter forthwith upon the record, or may make other disposition of the case. If it appears to the Board that such exceptions raise substantial and material factual issues, the Board may direct the regional director or other agent of the Board to issue and cause to be served upon the parties, a notice of hearing on said exceptions before a hearing officer. * *