The procedure now being sanctioned by the court seems to me to offend not only reason and logic but the statute before us as well.
*549Section 203 of the Public Employees Fair Employment Act (Civil Service Law, art. 14, L. 1967, ch. 392) —popularly known as the Taylor Law—provides that employees “ shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment ”. The meaning of the section is plain; collective bargaining is to be conducted on behalf of the public employees by an employee organization of their choice.
It was, of course, contemplated that disputes might arise either as to the appropriate bargaining unit or as to whether a particular organization selected by the employer actually does represent the employees and, for this reason, the Legislature created the Public Employment Relations Board as the agency to “ resolve,” among other matters, ‘ ‘ disputes concerning the representation status of employee organizations”—pursuant to procedures it may establish—“upon request of any employee organization ” (Civil Service Law, § 205, subd. 5, pars, [a], [b]; also § 205, subd. 5, par. [k]). Moreover, to underscore the Board’s power and function, the Legislature further declared (§ 207) that, “ [f]or purposes of resolving disputes concerning representation status, * * * the board * * * shall
“ 1. define the appropriate employer-employee negotiating unit * * * [and]
“ 2. ascertain the public employees’ choice of employee organization as their representative * * * on the basis of dues deduction authorization and other evidences, or, if necessary, by conducting an election.”
The court recognizes the existence of these provisions and ascribes to them the same meaning I do. However, it maintains that, despite the employees’ insistence that the organization selected by the employer does not represent them, such organization should, nevertheless, be permitted to negotiate collectively with the employer and determine “ the terms and conditions of employment ” before the Board has had the opportunity to resolve the dispute. Indeed, the majority is holding that this is the procedure to be followed before there is any Board determination— even though the Board may, after conducting a hearing and considering the evidence adduced, reach the conclusion that the bargaining unit designated by the public employer is not the *550appropriate one or that the employer-selected employee organization does not represent a majority of the employees.
Such a result may be dictated by expediency but to me it seems highly unreasonable and unfair. If the statute empowers the Board—and imposes upon it the duty—to settle controversies concerning bargaining units and the representation status of employee organizations, and no one disputes this, then, the Board must have the power, when a bona fide representation issue is present, to do what is reasonably necessary to preserve its function. In other words, the Board must be able to prevent, by an appropriate provisional order, the public employer and the possibly nonrepresentative organization which it had selected from going forward with negotiations and executing written agreements containing “ terms and conditions of employment ” (Civil Service Law, § 204, subd. 1). Certainly, the Board was never intended to be a mere rubber stamp.
It is hardly sufficient, in order to protect the rights of the employees, to allow the employer’s initial determinations, both as to the appropriate bargaining unit and the organization which represents the employees in that unit, to stand until the Board is able to make its determination. The contract which the State is now seeking to negotiate, the first of its kind in the history of this State, is bound to serve as a precedent and become the starting point for all future negotiations. Even more important, those organizations seeking recognition at this point—to which they may conceivably be entitled—may find it virtually impossible to establish themselves after their rival organization has been allowed to become ensconced with the trappings and privileges of an exclusive bargaining representative for a considerable period of time.
My view is confirmed not only by the language but by the manifest purpose of the legislation. Thus, the Board has been authorized to exercise such powers “ as may be appropriate to effectuate the purposes and provisions of this article ” (Civil Service Law, § 205, subd. 5, par. [k]). Under this provision, the Board can fashion such remedies which in its judgment are appropriate, and the exercise of its discretion will not be set aside unless its action is arbitrary or the remedies bear no reasonable relationship to the policies of the statute. (See, e.g., Labor Bd. *551v. Seven-Up Co., 344 U. S. 344, 346; Phelps Dodge Corp. v. Labor Bd., 313 U. S. 177, 194.) The Supreme Court’s statement in Phelps Dodge Corp v. Labor Bd. (313 U. S. 177, supra), describing the powers of the National Labor Relations Board is especially apt (p. 194):
“ But in the nature of things Congress could not catalogue all the devices and stratagems for circumventing the policies of the Act. Nor could it define the whole gamut of remedies to effectuate these policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adaptation of means to end to the empiric process of administration. The exercise of the process was committed to the Board, subject to limited judicial review. Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board’s discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy ”. (Emphasis supplied.)
Since the Board has not acted arbitrarily, this court has no choice but to approve the remedy it has devised. “ [T]he power [of devising remedies], which is a broad discretionary one,” the Supreme Court has declared in the Seven-Up Co. case (344 U. S., at p. 346), “ is for the Board to wield, not for the courts. In fashioning remedies to undo the effects of violations of the Act, the Board must draw on enlightenment gained from experience.” In addition, the majority’s decision herein—which permits an employer to deal exclusively with one of several contending unions while a genuine representation issue is pending before the administrative agency—is in direct conflict with State and national labor policy, premised, as it is, on the right of employees in both private (National Labor Relations Act, § 7 [U. S. Code, tit. 29, § 157]; New York State Labor Relations Act [Labor Law, § 717] ) and public sectors (Civil Service Law, § 203) to have free and unfettered choice in the selection of their collective bargaining agents. To protect that fundamental right, in cases where a genuine representation issue is raised, all of the labor organizations involved in the dispute are required to abstain from entering into any collective bargaining agreement with the employer. *552(See Garment Workers v. Labor Bd., 366 U. S. 731; Midwest Piping & Supply Co., 63 N. L. R. B. 1060; see, also, N. L. R. B. v. Tower Iron Works, 366 F. 2d 189; Iowa Beef Packers v. N.L. R. B., 331 F. 2d 176.)
The requirement that an employer must maintain strict neutrality in such a situation, articulated by the National Labor Relations Board in the Midwest Piping & Supply Co. case (63 N. L. R. B. 1060, supra), has been applied by the Supreme Court in a situation where the union did not represent a majority of the employees at the time of recognition but did at the time the collective bargaining agreement was executed. The Supreme Court enforced a Board order requiring a union to cease acting as a collective bargaining agent of employees until “ such time as a Board-conducted election demonstrated its majority status, and to refrain from seeking to enforce the agreements previously entered.” (Garment Workers v. Labor Bd., 366 U. S. 731, 735, supra.) Just as recognition of the minority union and the making of a collective bargaining agreement in the Garment Workers case had the effect of destroying section 7 rights of the employees under the Federal statute, so here the public employer’s recognition of the respondent Association and the making of a collective bargaining agreement with it would destroy identical section 203 rights granted by the Taylor Law.
If the Public Employment Relations Board were to make a representation determination, pursuant to section 207 of the Civil Service Law, the court, to protect employee rights guaranteed by section 203, would—after such determination has been made undoubtedly enforce a Board order requiring the public employer to desist from recognizing or negotiating with an uncertified union. The majority position, however, is that until there is a Board determination no provisional remedy of any kind can be made by the Board to protect section 203 rights. Neither reason nor the statutory powers of the Board support such a distinction. Where an employer, whether he be in the public or private sector, chooses between two unions, it is common belief that the union which the employer has chosen is more likely to prevail. As was stated by Professor Derek C. Bok of Harvard Law School (now its Dean-Designate), “ [f]or though Midwest Piping is commonly justified in terms of ‘ free *553choice ’ and ‘ coercion, ’ its strongest appeal is rooted in the desire to he fair to each of the contending unions. Many organizers believe that where it is difficult for the employees to choose between two unions, the union that can obtain a reasonable contract is likely to prevail. This may not imply any lack of rationality on the part of the voters. But it is arguably unfair for one union to lose merely because the employer has chosen to negotiate a contract with the other.” . (The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv. L. Rev. 38, 119.)
By a parity of reasoning, if respondent Association does not truly represent the public employees, the rights given to the latter by section 203 will be destroyed, regardless of whether the respondent enters into a collective bargaining agreement before or after a Board determination. In either case, where there is a genuine representation issue, the recognition accorded to one of two contending unions and the making of a collective bargaining agreement with such a union will prevent a free and uninfluenced choice of the bargaining agent.
Nor is it of any consequence that the recognition of a labor organization and the making of a collective bargaining agreement with it might be an unfair labor practice under the National Labor Relations Act and the State Labor Relations Act but not under the Taylor Law. The significant point is not that the conduct is or is not an unfair labor practice but that the free choice of the bargaining agent has been interfered with and rights such as those guaranteed by section 7 of the Federal Act and by section 203 of the Taylor Law have been destroyed. Pertinent and important is the statement of the Federal Court of Appeals in N. L. R. B. v. Air Master Corp. (339 F. 2d 553, 556): “ It is interference with the employees’ choice, not frustration of the Board’s design to hold an election, which the statute proscribes as an unfair labor practice. And the latter is not necessarily determinative of the former. Indeed, a Board conducted election is merely a means for expressing a free choice.” For these reasons, the National Labor Relations Board has time and again set aside elections where the free choice of the bargaining agent was interfered with even though the conduct complained of was not an unfair labor practice. (See, e.g., Allis-Chalmers Mfg. Co. v. N. L. R. B., 261 F. 2d 613; see, also, Bok, The Regulation of *554Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv. L. Rev. 38.)
In sum, if the Board be held powerless to issue the sort of provisional order which it has issued in this case, then, the function of the Board, insofar as it was set up to assure a fair election and a true collective bargaining agreement, may be frustrated and the design of the statute undermined. In point of fact, as I have sought to show, unless the Board has the power to issue such a provisional order, the rights given public employees by section 203 may be violated with impunity. Nor will the rendition of a final Board determination as to the bargaining unit repair the harm done by permitting the organization (selected by the employer) to negotiate and enter into an agreement on behalf of persons it may not actually represent.
I would, therefore, reverse the order of the Appellate Division and reinstate Special Term’s order dismissing the petition.
Judges Burke, Scileppi, Bergan and Jasen concur with Judge Breitel; Chief Judge Fuld dissents and votes to reverse in an opinion in which Judge Keating concurs.
Order affirmed.