dissenting:
The principles of labor law that guide the disposition of this case are clear and, for the most part, accurately stated by the majority. When faced with an effort by employees to unionize, the employer must abide by certain principles of neutrality. It may not “interfere with, restrain, or coerce employees in the exercise of’ their rights “to form, join or assist labor organizations.” 29 U.S.C. §§ 157, 158(a). Granting benefits to employees, threatening the termination of current benefits, and treating union supporters differently than other employees all contravene this fundamental principle. See NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964); P.R. Mallory & Co. v. NLRB, 389 F.2d 704 (7th Cir.1967).
Furthermore, under Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449 (9th Cir.1994) (en banc), the Regional Director need satisfy only a minimal burden to justify the grant of interim relief pending final adjudication of alleged unfair labor practices. The issue this case presents is whether the illegal actions of the employer justify the extreme remedy of a bargaining order.
This case involves a relatively small employer whose violations of the Act were relatively minor. A court-ordered demand to bargain, under the facts of this case, imposes a significant hardship on both employees and employers. When that hardship is measured against the threat to the Board’s remedial authority in this case, the balance does not tip decidedly in favor of the Board. On these grounds, the district court’s judgment should be affirmed, a bargaining order denied, and a lesser sanction imposed.
I. Bargaining Orders
The bargaining order is the most severe sanction available to remedy employer unfair labor practices. “A bargaining order is not a snake-oil cure for whatever ails the workplace; it is an extreme remedy that must be applied with commensurate care.” Avecor, Inc. v. NLRB, 931 F.2d 924, 938 (D.C.Cir.1991) (internal citation omitted). The preferred remedy for employer unfair labor practices that affect the outcome of a representation election is to order a new election. NLRB v. Gissel Packing Co., 395 U.S. 575, 602, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); accord L’Eggs Products, Inc. v. NLRB, 619 F.2d 1337 (9th Cir.1980). This case does not meet the test required for issuing a bargaining order. “Only where there is a substantial danger that employees will be inhibited by the employer’s conduct from adhering to the union should a bargaining order issue.” J.J. Newberry Co. v. NLRB, 645 F.2d 148, 154 (2nd Cir.1981) (emphasis added).
In short, the “extraordinary and drastic remedy of forced bargaining ... is reserved for only the most unusual cases.” Be-Lo Stores v. NLRB, 126 F.3d 268 (4th Cir.1997) (internal citations omitted). The NLRB must support its request for such extraordinary relief with “specific findings as to the immediate and residual impact of the unfair labor practices on the election process.” NLRB v. Pacific Southwest *671Airlines, 550 F.2d 1148, 1152 (9th Cir.1977) (quoting Peerless of America, Inc. v. NLRB, 484 F.2d 1108 (7th Cir.1973)).
The Regional Director has failed to present sufficient evidence to support the “extreme” remedy of forced bargaining. SD & A very likely committed several unfair labor practices, most of which were de minimus in nature and would not justify imposition of a bargaining order. Gissel, 395 U.S. at 615, 89 S.Ct. 1918. Only its unilateral grant of benefits could possibly justify a bargaining order. NLRB v. Anchorage Times Publishing Co., 637 F.2d 1359, 1370 (9th Cir.1981); But see Skyline Distributors v. NLRB, 99 F.3d 403, 411 (D.C.Cir.1996) (unilateral grant of economic benefits will almost never be sufficient to justify a bargaining order). Any perceived need for a bargaining order is outweighed by the hardship such an order would impose on employees of SD & A and on the company itself.
A. Hardship on Employees
The majority ignores the hardship that a bargaining order will impose on the employees of SD & A. The core principles underlying the National Labor Relations Act (NLRA) are “freedom of choice and majority rule in employee selection of representatives.” Conair Corporation v. NLRB, 721 F.2d 1355, 1381 (D.C.Cir.1983); 29 U.S.C. § 159(a) (union representation must be based on majority rule); 29 U.S.C. § 157 (granting employees the right to engage in or refrain from engaging in union activity). A bargaining order, by its nature, infringes these fundamental statutory rights.
It is true that in this case credible evidence exists that a majority of the employees of SD & A signed authorization cards indicating support for the union. Nonetheless, a substantial majority of those same employees subsequently voted against union representation. The majority attributes this turnabout to a series of unfair labor practices committed by the employer. However, it must be remembered that SD & A ran a vigorous campaign against the union. This campaign consisted, for the- most part, of perfectly lawful attempts to dissuade its employees from joining the ILWU. I see no justification for the majority’s holding that the full margin of victory for the company — some twenty-two votes — is attributable to the company’s unfair labor practices. Neither the evidence of waning employee support for the union nor the nature of the employer’s conduct supports such a finding.
In fact, a fair reading of the record indicates that the employer succeeded in convincing employees that union representation was inadvisable. Many employees came to see the collective bargaining process as a risky or even futile endeavor. Others grew tired of the conflict and strain of the union campaign and feared that such conflict would continue if the union won the election. Still others, for a variety of reasons, believed that a union workplace would not be in their own best interest. There is little doubt that the employer encouraged these concerns during weekly meetings and individual discussions with employees. Such conduct, however, is not illegal. It is part of the full and wide open discussion of “all of the arguments for, as well as against, unionization.” .Excelsior Underwear, 156 NLRB 1236, 1241 (1966).
In addition to its lawful attempts at persuasion, SD & A engaged in unfair labor practices. That fact alone is not sufficient to justify a bargaining order. It is the nature and effect of the unfair labor practices that is important. Gissel, 395 U.S. at 600, 89 S.Ct. 1918 (violations must be “likely to destroy the union’s majority and seriously impede the election” to justify a bargaining order). The actual unfair labor practices at issue in this case are not the type that normally justify a bargaining order.
There were, after all, no firings of union supporters nor threats of business closure were the union to win the election. The employer violated the Act when it gave *672employees the benefits they sought. The most serious allegation against SD & A is that it provided new equipment and higher salaries for its employees. It also promised that other benefits would follow if the union lost the election. If the union won the election, alternatively, SD & A managers allegedly told employees that they would have to start punching a time clock, they wouldn’t be permitted to receive their paychecks early, and they would lose the “benefit” of lengthy cigarette breaks. The alleged discrimination against union supporters consisted of a single verbal reprimand of a union supporter and a single instance where the company prohibited the distribution of union literature to employees while they were at their work stations. I do not dispute that several of these actions, if proven, violated the NLRA. I question, however, whether the company’s substantial margin of victory can be attributed to these acts, and, consequently, whether a bargaining order is appropriate.
In short, it is not possible to say why employees voted against union representation. Thus, a new election should be the preferred mechanism to resolve the discrepancy between the preference expressed on signed authorization cards and that expressed at the ballot box. Only a new election permits employees to fully realize their “inviolate right under the NLRA” to choose their own representative. Skyline Distributors, 99 F.3d at 411. A bargaining order, alternatively, substitutes the agency’s “big (even good) brother judgment for a majority of employees’ express choice of a bargaining representative.” Conair, 721 F.2d at 1379.
This withdrawal of employees’ core statutory rights constitutes a hardship that should weigh heavily in determining the appropriateness of § 10(j) relief. It is true that Miller v. California Pacific Medical Center provides a lenient standard for the Regional Director to establish “likelihood of success” on the merits. However, we should be mindful that applying this same lenient standard to the “balance of hardships” prong creates the risk of depriving employees of their statutory right to choose (or not choose) union representation. On the limited record before us, the imposition of such a hardship is unwarranted.
B. Hardship on Employers
The majority also understates the extent to which a bargaining order imposes a hardship on SD & A. The majority contends that recognition by this court that forced bargaining is a hardship “would lead logically to the conclusion that an interim bargaining order is never appropriate.” Maj. Op. at 669. This is not so. Under Miller, when the Regional Director “demonstrates that it is likely to prevail on the merits, we presume irreparable injury.” Miller, 19 F.3d at 460. Consequently, in those cases involving truly egregious unfair labor practices and obvious majority support for the union, an interim bargaining order would be appropriate.1 In cases such as this one, Miller commands the district court to “exercise sound discretion” in balancing the hardships on the parties. Id. at 461. The exercise of sound discretion requires consideration of all the hardships on both sides of the scale.
Contrary to the majority’s assertion, forced bargaining weighs more heavily on the employer than the union. The posture of the litigants in this case is persuasive evidence of that fact. The union, supported by the Regional Director, seeks a bargaining order. The company opposes one. The union, for good reason, would *673not consider such an order a hardship. A primary purpose of a labor union is to negotiate contracts on behalf of its members. The successful culmination of this process presumably yields benefits to the employees (in the form of higher wages and improved conditions of work) and for the union (in the form of additional dues paying members). Generally, a union must first convince employees that they would benefit from such negotiations before it may bargain on their behalf. In the present case, the union wishes to forego this preliminary step and have this court order the employer to recognize and bargain with the union. Such an order, far from being a hardship, relieves the union of its obligation to secure the support of the employees. Its lawyers will have accomplished what its organizers could not. From the union’s perspective, the remaining uncertainty as to whether a final contract will be signed is preferable to the dual uncertainty of whether the employees will desire the union’s assistance and whether the employer will ultimately sign a contract.
The employer’s perspective of a bargaining order is quite different. SD & A’s primary purpose is not to negotiate with a union, it is to solicit donations on behalf of its clients. The diversion of resources from that purpose to collective bargaining is an unwelcome, albeit a sometimes necessary, hardship. A bargaining order would require the employer to bargain collectively and in good faith with the union. This obligation, in turn, requires the employer to invest time and resources, including the hiring of counsel, the preparation of materials necessary for meaningful discussions of terms and conditions of employment, and the presence and participation in negotiations of high level employees.
Congress has determined that the benefits of collective bargaining justify imposing these obligations on an employer when employees have freely chosen to be represented by a union. 29 U.S.C. § 141. The duty to negotiate with a union that may or may not ultimately be certified, however, must be considered a burden on the employer in the context of a 10(j) petition. Scott v. Expresso Limousine Service, Inc., 1993 WL 181474 at *8 (N.D.Cal.1993) (“The potential for wasted resources engendered by a bargaining order outweighs any hardship the union might suffer by having to wait for a decision from the NLRB.”) Where the alleged ULPs were relatively minor (as is the case here) and there is no evidence of continuing violations, this hardship is not justified. Wilson v. Hart Ski Mfg. Co., 472 F.Supp. 484, 486 (D.Minn.1979) (where there is no evidence of continuing anti-union activity, the “Board’s final order will therefore be as effective as an interlocutory order of this court”); Hoffman v. Laser Tool, Inc., 151 L.R.R.M. (BNA) 2465 (D.Conn.1995) (discontinuation of illegal activity a “significant factor” influencing court to conclude that bargaining order unwarranted).
In conclusion, the Regional Director’s request for a bargaining order is based on the allegation of an improper grant of benefits to employees and several minimal violations of the Act. “[T]he strength of the government’s showing on the likelihood of prevailing on the merits will affect the degree to which it must prove irreparable injury.” Miller at 459 (citing United States v. Nutri-cology, Inc., 982 F.2d 394 (9th Cir.1992)). Given the minimal nature of the alleged violations, the lack of evidence of continuing violations, a bargaining order’s inherent interference with the core statutory rights of employees, and the additional burden a bargaining order imposes on the employer, I conclude that the balance of hardships does not tip in favor of the board. The majority’s alternative conclusion simply ratifies the Board’s long-held “view that bargaining orders should be liberally granted as remedies despite evidence that a new election would suffice.” J.J. Newberry Co., 645 F.2d at 154.
. Both Levine v. C & W Mining Co., 610 F.2d 432 (6th Cir.1979) and Seeler v. Trading Port, Inc., 517 F.2d 33 (2nd Cir.1975), relied on by the majority, involved far more egregious behavior than that alleged against SD & A. In Seeler, twenty union supporters were permanently laid off. In Levine, the district court found the "apparent discharge of employees who were leaders in the organization of the union” and "threats of business closure.” See also, NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1565 (7th Cir.1996) (nine union supporters fired after union presented a letter demanding recognition).