(concurring in part and dissenting in part):
While the Board’s findings may be found to be supportive of its conclusions as to unfair labor practices, they are wholly insufficient in character and magnitude to justify issuance of a bargaining order in place of the more highly preferred order for another representation election.
In terms of getting on with problems of inaugurating regimes of industrial peace, the policy of encouraging secret elections under the Act is favored.
Linden Lumber Division v. NLRB, 419 U.S. 301, 307, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974). I would thus affirm the Board’s findings in all respects except that I would remand the case to the Board to issue an order directing another election.
The Board properly decided to dismiss allegations that the Company violated section 8(a)(1) of the National Labor Relations Act by engaging in coercive interrogation and solicitation of employee withdrawals from the Union. The Board, however, contends that there is substantial evidence in the record as a whole to support its findings that the Company violated section 8(a)(1) of the Act by threatening to close the plant if the employees voted for the Union and by promising them benefits if the unit voted against having union representation. n
The Union first advised the Company on April 12 that it claimed to represent a *26majority of its employees, to which the Company responded on April 16th that it had a good faith doubt of the Union’s claim. The facts related to the invalidity of certain of the signature cards indicate that this doubt was fully justified. The Union thereupon filed an election petition with the Board, and on May 9, with the Board’s approval, the Company and the Union executed a Stipulation for Certification Upon Consent Election, which provided for a secret-ballot election to be conducted by the Board. In the ensuing period before the July 1st election the Company sent a letter to its employees, and its president addressed them in a speech to which there was no objection as to content, then or now. The speech discussed the possible burdens of unionization in terms similar to those which the Board now finds objectionable. Thereafter the Company engaged in a number of electioneering practices that were unobjected to and some of those that were objected to by the Union the Board found to have been properly conducted. No employee ever was discharged for union activity and there was no evidence of spying or interrogation. Two prior consent elections had been held at the Company plant with the same union in 1968 and 1969 without any unfair labor practices.
The evidence that the Company improperly threatened to close the plant if the employees voted for the union is minimal at best. What the Company did say, through one of its supervisors, was that, if a union should come into the plant and by its demands increase the expenses of the Company to a point that they could not be met, the Company would be required to close the plant. This statement was made in an environment in which the Union, without any basis therefor, was representing to employees, in the solicitation of signatures to union authorization cards, that by voting to have union representation the employees would get “free insurance” and “two weeks vacation in the summer.” The additional costs of such programs would obviously involve a substantial increase in the operating costs of the Company. Therefore, it was justified in assuming that unionization of its employees would increase its financial burdens. The extent of this burden was unknown because the union had not articulated the extent of the “free insurance” it would require, but the Company was fairly entitled to refer to the possible effect of this added cost if it became too high.
The claimed promise of benefits by the Company, which the Board found to support a section 8(a)(1) violation, was also based on very marginal considerations and evidence. The alleged benefits consisted of shifting a regular vacation period from Christmastime to July to better accommodate the needs of the Company to produce year-end garment samples. No increase in total vacation time was involved. In addition, it was charged that the Company promised it would give one additional paid vacation on Memorial Day if the unit voted against the Union. However, the testimony to this latter oral representation was meager and came only from five employees who were the most active in union activity.
Under such circumstances, the record is insufficient to justify the further action of the Board in issuing a bargaining order in lieu of calling for another representation election. Recently the Supreme Court in Linden Lumber Division v. NLRB, supra, held that where the unfair labor practices do not impair the electoral process, a violation of section 8(a)(5)1 is not committed simply by an employer’s refusal to accept union authorization cards, allegedly signed by employees in the bargaining unit, as evidence of the Union’s majority status. Here, the Board has found on the basis of 48 signed cards out of a 94-employee *27unit, that the Company failed in its obligation to bargain with a union representing a majority of the employees. The loss of one card would destroy the union majority, and there is testimony indicating that some of the signatures to a number of the union authorization cards were obtained by the misrepresentations as to insurance and vacations which the Board countenanced as “propaganda.” In my opinion, these misrepresentations were particularly egregious because they were completely speculative.
In addition, the back of the authorization cards, which were signed by all of the employees whose signatures were obtained, could represent to a reasonable person that a “collective bargaining agreement between [the] Employer and the Union” was already in effect, when such was not the case. See statement on the back of the cards, which in its entirety read as follows:
I hereby authorize my Employer (the Company named on the reverse of this card) to deduct from my wages dues and initiation fees that may be due to the Union (the Union named on the reverse of this card). This authority to make such deduction shall be irrevocable for the period of one year [sic; the word “or” appears to have been omitted] until the termination date of the collective bargaining agreement between my Employer and the Union, whichever occurs sooner, and I agree, and direct that this authorization shall be automatically renewed and shall be irrevocable for successive periods of one year and for the period of each succeeding collective bargaining agreement between my Employer and the Union, whichever shall be shorter, unless written notice is given by me to my Employer and the Union not more than twenty (20) days and not less than ten (10) days prior to the expiration of each period of one year or of each. collective bargaining agreement between my Employer and the Union, whichever occurs sooner. If a new worker: this authorization becomes effective at the end of my trial period.
App. II 20 (emphasis added). The Union must admit that the foregoing statement was relied upon by every signing employee because the cards constituted the authorization for the check-off of union dues from the employees’ salaries. The Board is thus on very questionable grounds in finding that all the signature cards were validly obtained. The majority opinion does not even discuss this basic and pervasive misrepresentation. Meanwhile it opines “that the union’s slight majority could have been eroded, and was in fact destroyed [emphasis added] by the employer’s threats of closing or moving the plant,” and relies on this to support its approval of the issuance of the bargaining order. The italicized portion is unsupported by the record. At no point did the ALJ find that any threats were the cause of the putative lost majority — it could just as well have been attributable to the not infrequent impermanence of card majorities. Moreover, the opinion does not recognize or consider to any extent the fact, which must be recognized in this record, that the union majority of card authorizations, and its 42 votes in the election, might have been largely the result of union misrepresentations and promises of uncertain benefits. It is grossly unfair to consider the conduct of an employer on an election result without giving equal consideration to the union conduct in the same election.
Furthermore with justification the employer questioned the validity of the signature on a few of the authorization cards. When all these circumstances are considered in light of the fact that the Union never claimed more than 48 signed employee authorization cards in the 94-employee unit, the Board’s finding of a union majority appears paper-thin, if not highly questionable. The Board, however, has wide discretion in these matters which must be recognized, and I accede to the exercise of that discretion, but I would not stretch such findings on *28the unfair labor practices into justification for the Board to issue a bargaining order, because the Board’s factual findings do not indicate any substantial impairment of the election process.
NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969) recognizes that
an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, 85 S.Ct. 994, 13 L.Ed.2d 827 n. 20 (1965).
(Emphasis added). Thus, employers are entitled to make certain justifiable economic predictions. Further, bargaining orders are to be issued only on supportable findings.
At a minimum, the reasons expressed by the Board for bargaining order findings must be both internally consistent and logical on their face and sufficiently specific to permit appellate courts to relate the facts of the case to the findings. The reasons supporting the bargaining order of the AU, and thereby of the Board, fail dismally on both counts. The AU’s decision regarding the bargaining order is bottomed on his finding that the employer threatened the employees in violation of section 8(a)(1). (App. I 20). At App. I 11-12, the AU presents three reasons for his finding on the threats. The first reason is strictly conclusory, with no specificity whatsoever. The reasoning consists of a recitation of disclosures as to financial condition and as to potential bargaining posture not made by the employer. The passage does not even mention (1) why the employer must divulge such information before bargaining starts, or (2) why the burden of proof in this instance shifts to and remains with the employer, nor does the passage mention such matters as, (3) the economic effect on the employer of such union claims as “free insurance”, which insurance would obviously affect the employer’s financial condition, (4) why the Union should not proffer evidence on the economic impact on the employer of “free insurance” and other benefits advertised by the Union, (5) the factors which in the AU’s view made unavailing the anonymity of secret ballot voting to protect the true expression of choice by the employees, and (6) why the purely contingent statements of the employer, in the face of then abiding national economic conditions, do not bring the employer’s statement within the broad protection of the first amendment, as required by the Gissel acknowledgement of predictions “phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences.” In fact the AU does not acknowledge that the company, as well as the Union, has first amendment interests at stake, nor does he appear seriously to credit the fact that an increase in economic burdens can destroy a company’s competitive edge and force it to close facilities.
The second reason is not addressed to Gissel -permitted predictions by employers, and so is not here apposite. It is addressed to the Gissel exemption for a management decision already arrived at to close the plant.
This third reason is inconsistent and illogical on its face: the AU writes that the employer (Respondent) was inconsistent in “telling employees . . . that the Union will make ‘unreasonable’ demands on Respondent which it cannot afford . . ” (emphasis added), yet, two pages before, the AU expressly found that the objectionable statements *29(referring to the employer representative who spoke) were conditional, i. e., that
the plant would close if the Union won the election and made “unreasonable demands,” in [other cases] that it would if it demanded “too much money” and in other cases he added language about the company’s ability to “afford” or “meet” the Union’s demands. [Emphasis added].
This is the total extent of the ALJ’s findings on the objectionable statements. The ALJ thus jumped from imputing to the employer the correctly contingent wording of what might happen if the Union made certain demands to imputing the emphatic and certain phrasing that the Union “will make” such demands. Worse, in his third reason, the ALJ also argues that if the employer believed that its present employee benefit program matched those of its competitors, then the employer had no reason to fear Union demands. This argument displays an ignorance of ordinary union activity: it ignores the probability that the Union would work to increase the existing benefits at the plant, whatever the level of benefits existing at the time of unionization. It is unlikely that a union would come in and accept status quo. The ALJ’s third reason thus unravels.
The result is that the Board and the majority in this case put employers in an untenable position, in flagrant disregard of the principles of Gissel. With regard to employer predictions, the heart of Gissel is specificity and objectivity, both as to employer’s statements and as to Board analyses supporting bargaining orders. Here, the employer was as specific and objective as possible, given the Union’s intonations about vacations and insurance. The Board, on the other hand, here exacts of itself a very low standard of specificity and factual rigor in weighing the bargaining order question — a standard so low that the Board’s bargaining order decision in this case is arbitrary and capricious.
Under the factual circumstances, it is my view that the Board exceeded its authority in issuing a bargaining order because the facts which supported the unfair labor practices were not of such character and magnitude as to be “likely to destroy the union’s majority and seriously impede the election.” NLRB v. Gissel Packing Co., supra, 395 U.S. at 600, 89 S.Ct. at 1933, cited in Linden Lumber Division v. NLRB, supra, 419 U.S. at 303-04, 95 S.Ct. 429. To this extent I respectfully dissent.
. 29 U.S.C. § 158(a)(5) which provides:
(a) It shall be an unfair labor practice for an employer—
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(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.