dissenting:
In this case, the National Labor Relations Board (“NLRB” or “Board”) found the petitioner, Human Development Association (“HDA”), guilty of an unfair labor practice following HDA’s voluntary recognition of District 6, International Union of Industrial, Service, Transport and Health Employees ("District 6”), as the exclusive collective bargaining agent for persons employed by HDA in personal home care service. In securing recognition, District 6 had demonstrated majority support by presenting union authorization cards executed by employees in the designated bargaining unit. The Board held, however, that at the time when HDA recognized District 6, the union did not have majority support because several of the employees who had signed authorization cards for District 6 also had signed authorization cards for a rival union.
Although there is no evidence that HDA knew of the existence of these “dual cards,” nor is there any evidence that HDA unlawfully favored District 6 over the rival union, the Board apparently adhered to a so-called “dual-card” doctrine in finding *353that HDA had committed an unfair labor practice in recognizing District 6. The problem with this judgment is that the Board purported to abandon the dual-card doctrine in Abraham Grossman d/b/a Bruckner Nursing Home, 262 N.L.R.B. 955 (1982) (“Bruckner”), thus making it inapplicable here. Accordingly, I would grant the petition for review and remand this case to the Board for further proceedings. At a minimum, this case should be remanded to allow the Board to explain how Bruckner and an application of the dual-card doctrine can be harmonized.
Beginning in 1945, the Board adopted the so-called “Midwest Piping ” doctrine to determine whether an employer had committed an unfair labor practice when recognizing one union in a rival-union, initial-organization context. See Midwest Piping & Supply Co., 63 N.L.R.B. 1060 (1945). In these situations, Midwest Piping required the employer to maintain strict neutrality toward the rival unions attempting to organize the employees so long as there existed a “real question concerning ... representation.” Id. at 1070. In conjunction with this rule, the Board has employed a Midwest Piping -type analysis even in situations where the employer is unaware of the rival union if the recognized union has relied on dual cards to secure bargaining rights. Thus, in such situations, the Board sometimes has refused to count dual cards toward the determination of majority support, because the ambiguity produced by such dual cards sometimes has created a real question concerning representation. What is noteworthy, however, is that even though dual cards sometimes have been found to be fatally ambiguous, they never have been found to be inherently unreliable as a measure of employee sentiment. See Crest Containers, 223 N.L.R.B. 739, 741 (1976) (espousing the “dual-card” doctrine).
In 1982, the Board rejected the Midwest Piping doctrine in favor of a new test. See Bruckner, 262 N.L.R.B. at 957. In Bruckner, the Board discarded the “real-question-concerning-representation-test” and instead held that an employer would commit an unfair labor practice only if it recognized a union after a representation petition had been filed with the Board or if it unlawfully coerced employees or assisted the prevailing union. The Board’s decision to depart from Midwest Piping has created the confusion which necessitated the instant litigation. On the one hand, not only is the dual-card doctrine inconsistent with the Board’s policy enunciated in Bruckner, but Bruckner expressly repudiated the dual-card doctrine. On the other hand, while some post-Bruckner Board cases reflect antipathy toward the dual-card doctrine, there are also some post-Bruckner decisions that are consistent with the dual-card doctrine.
In my view, the Bruckner decision obviated the need for the dual-card doctrine. The Board stated that it would “no longer find 8(a)(2) violations in rival unions initial organizing situations when an employer recognizes a labor organization which represents an uncoerced, unassisted majority, before a valid petition for an election has been filed with the Board.” Bruckner, 262 N.L.R.B. at 957. The dual-card doctrine is facially inconsistent with this new rule insofar as it holds an employer guilty of an unfair labor practice for recognizing a union even when no rival petition has been filed. The majority may be right in suggesting that the Board’s holding in Bruckner and its application of the dual card doctrine can be harmonized. But the Board has not done it in this case. The case should therefore be returned to the Board.
I.
If an employer recognizes a union as a sole representative of its employees before the union has gained a majority, the employer’s good faith will not constitute a defense. International Ladies Garment Workers’ Union v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). Thus, if a “dual card” never may be used to establish a union’s majority status, then an employer will commit an unfair labor practice if it recognizes a union whose purported majority rests in part on dual cards, i.e., without regard to whether there is a rival union on the scene. The majority assumes this to be *354the controlling principle in this case; however, I can find no real support for this position in the Board's case law, and it seems unfathomable in light of the Board’s decision in Bruckner. The simple truth is that the Board never has said that dual cards cannot be used as a measure of union support.
The dual-card doctrine was a forerunner of Midwest Piping. See, e.g., Harry Stein & Arthur Calder (Ace Sample Card Co.), 46 N.L.R.B. 129, 130-31 (1942). Under the doctrine as first enunciated, the Board vitiated an employer’s recognition of a union if it could not determine from the record that the employees who signed “duplicate cards” desired exclusive representation by the recognized, rather than a rival, union. Admittedly, the dual-card doctrine is theoretically distinct from Midwest Piping; however, the latter has subsumed the former in practice. That is, the dual-card doctrine almost always arises only in connection with a claim that the employer has unlawfully recognized a particular union in a situation in which a rival union is present. And, to the extent that dual cards have been an issue, the Board has never applied a per se test; the Board always has looked to see whether the record contains
evidence ... of sufficient reliability and probative force to clearly dissipate the ambivalence as to intent that is inherent in dual card designations and to leave no doubt that, at the time material to the determination of the issue of majority status, the dual card signer intended only one of his dual cards ... to evidence his designation of a bargaining agent.
Crest Containers, 223 N.L.R.B. at 741.
In Crest Containers, the Board refused to recognize union authorization cards when the signators of those cards also signed cards for a rival union. The dual-card doctrine fit neatly into the Midwest Piping framework: where dual cards existed, there might be a real question concerning representation. Crest Containers, 223 N.L.R.B. at 741 (“[Wjhere an employee signs an authorization card for each of two unions, the card of neither union will be regarded as a valid designation that may be counted toward majority, as it is not then possible to determine from the cards which of the two unions the employee has selected as an exclusive bargaining agent.”) Thus, in the context of Midwest Piping’s real-question-concerning-representation test, the dual-card doctrine made perfect sense.1
The Board eliminated the real-question-concerning-representation test when it issued Bruckner, 262 N.L.R.B. at 957. In Bruckner, the Board criticized the Midwest Piping test for providing no guidance as to just what constituted a “real question concerning representation.” See id. The Board realized that the Midwest Piping test “frequently allowed a minority union possessing a few cards to forestall the recognition of a majority union in an effort to buy time to gather more support for itself or frustrate its rivals.” Id. at 956. Indeed, before the decision in Bruckner, a number of courts already had begun to reject Midwest Piping. See id. at 957 (“[Cjircuit courts refused to enforce many of our decisions based on “modified” Midwest Piping violations____ [T]he courts took the view that the question concerning representation was resolved whenever an employer recognized a bona fide majority claimant and had not actually aided ... the recognized labor organization. At the point an unassisted majority union had been recognized, the courts considered the matter settled, and the question concerning representation resolved.”) (footnotes omitted). Sensitive to these criticisms, the Board conceded that its goals had “not been accomplished” by Midwest Piping, see Bruckner, 262 N.L.R.B. at 957, and accordingly rejected Midwest Piping in categorical terms:
[W]e will no longer find 8(a)(2) violations in rival union, initial organizing situations when an employer recognizes a labor organization which represents an uncoerced, unassisted majority, before a *355valid petition for an election has been filed with the Board.
Id. (footnote omitted).
The dual-card doctrine, in the context of Midwest Piping’s real-question-concerning-representation test, no longer makes sense in the face of Bruckner’s, express repudiation of Midwest Piping. Under current Board law, until a rival union files a valid petition with the Board, an employer is free to recognize a labor organization which represents an uncoerced, unassisted majority. Id. The central concern of Midwest Piping, i.e., whether a “real question concerning representation” exists, no longer enters into the equation:
[A]n employer will no longer have to guess whether a real question concerning representation has been raised but will be able to recognize a labor organization unless it has received notice of a properly filed petition.
Id. If a rival union fears defeat, that union is free to file a petition with the Board (assuming the rival union can demonstrate the minimum 30% support necessary before a petition may be filed), at which point the employer “must refrain from recognizing any of the rival unions.” Id.
Making the filing of a valid petition the operative event for the imposition of strict employer neutrality in rival union, initial organizing situations will establish a clearly defined rule of conduct and encourage both free choice and industrial stability.
Id. To this end, the Board promised to process petitions “in the most expeditious manner possible.” Id.
The existence of dual cards provided the prototypical example of a situation in which employers had to guess whether there was a real question concerning representation. Indeed, the employer is put in a ridiculous situation because, usually, there is no way to determine the presence of “dual cards.” But under Bruckner, “an employer will no longer have to guess.” Id. The rival union can protect its interests by the simple expediency of filing a petition with the Board, provided it can demonstrate at least 30% support. And, where the rival union “cannot command the support of even 30 percent of the unit, it will no longer be permitted to forestall an employer’s recognition of another labor organization which represents an uncoerced majority of employees.” Id. Because dual cards no longer affect whether the employer may recognize one of two rival unions, the dual-card doctrine is no longer relevant to rival-union, initial-organization situations.
II.
The analysis does not end here, for Bruckner explicitly deals with the dual card problem. Having struck down Midwest Piping, the Board was aware that it needed to address the dual-card doctrine as well. The Board concluded that, in the absence of the strict Midwest Piping rule, the dual-card doctrine had lost its underpinnings:
[O]ur new approach provides a satisfactory answer to problems created by execution of dual authorization cards. It is our experience that employees confronted by solicitations from rival unions will frequently sign authorization cards for more than one union. Dual cards reflect the competing organizational campaigns. They may indicate shifting employee sentiments or employee desire to be represented by either of two rival unions. In this situation, authorization cards are less reliable as indications of employee preference. When a petition supported by a 30-percent showing of interest has been filed by one union, the reliability of a rival’s expression of a card majority is sufficiently doubtful to require resolution of the competing claims through the Board’s election process____
____The phenomenon of dual cards in a rival union organizational setting must be taken into account, but can no longer solely justify our absolute refusal to rely on cards in Midwest Piping situations, particularly since we regard them as a reliable means of ascertaining the wishes of a majority of employees in other organizational contexts.
Id. at 958. Clearly, the Board recognized the need to allow employers to rely on dual *356cards. Although the Board conceded that dual cards may be less reliable, the Board refused to go so far as to deem dual cards un reliable. In fact, the reliability of those cards becomes sufficiently doubtful to force an election only when a rival union is able to muster the 30% support needed to justify a petition. Just as dual cards are regarded “as a reliable means of ascertaining the wishes of a majority of employees in other organizational contexts,” so must they be regarded as a reliable means of ascertaining the wishes of a majority of employees in this organizational setting.
Thus, not only is Bruckner facially inconsistent with the dual-card doctrine, but the Board in Bruckner expressly disavowed the dual-card doctrine. Footnote 13, upon which the Board’s counsel places primary reliance, does nothing to alter either of these conclusions. Footnote 13 comes at the end of text that says, “we will no longer find 8(a)(2) violations in rival union, initial organizing situations when an employer recognizes a labor organization which represents an uncoerced, unassisted majority, before a valid petition for an election has been filed with the Board,” id. at 957 (emphasis added); the footnote then reads as follows:
[W]e emphasize that an employer will still be found liable under Sec. 8(a)(2) for recognizing a labor organization which does not actually have majority employee support. This longstanding principle applies in either a single or rival union organizational context and is unaffected by the revised Midwest Piping doctrine announced in this case. For instance, if an occasion arises where an employer is faced with recognition demands by two unions, both of which claim to possess valid authorization card majority support, the employer must beware the risk of violating Sec. 8(a)(2) by recognizing either union even though no petition has been filed. In such a situation, there is a possibility that the claimed majority support could in fact be nonexistent.
Id. at 957 n. 13 (citation omitted). This footnote does not revive the dual-card doctrine. The most obvious “possibility” that a claimed majority does not exist will arise in cases where there has been unlawful “coercion” or “assistance.” But the presence of dual cards does not, without more, demonstrate unlawful coercion or .assistance.
Standing on its own, footnote 13 might be read, as Board counsel reads it, to be consistent with the dual-card doctrine. But such a reading would force us to disregard the Board’s more explicit pronouncements that dual cards are only “less reliable” and raise a significant question only when a rival union has demonstrated the minimum 30% support needed to substantiate a representation petition. See id. at 958. The Board made its position plain when it stated in the text of Bruckner that
[ujnder our new formulation, the duty of strict employer neutrality and the necessity for a Board-conducted election attach only when a properly supported petition has been filed by one or more of the competing labor organizations. Where no petition has been filed, an employer will be free to grant recognition to a labor organization with an uncoerced majority, so long as it does not render assistance of the type which would otherwise violate section 8(a)(2) of the Act.
Id. at 958 (emphasis added). Unless and until the rival union files a representation petition, the employer is free to recognize a union which comes to the employer and demonstrates majority support (even by use of dual cards), so long as that employer does not provide unlawful coercion or assistance. Never having filed a petition, a rival union cannot later claim that the successful union’s authorization cards were inadmissible dual cards. The rival union must first muster 30% support and file a petition. Only then will the dual cards receive heightened scrutiny.
III.
If Bruckner were the last word on the dual-card doctrine, I would conclude that the doctrine no longer applies in Midwest Piping situations. However, the Board subsequently has given conflicting signals as to whether the dual-card doctrine survives Bruckner.
*357On the one hand, the Board has suggested that the dual-card doctrine continues to have vitality apart from Midwest Piping. One Board panel actually cited Bruckner’s footnote 13, albeit without any discussion, as authority for its decision to exclude dual cards. See Flatbush Manor Care Center, 287 N.L.R.B. 457, 458 (1987) (affirming the Administrative Law Judge’s assertion that he could not “agree that Bruc[k]ner Nursing Home changes prevailing Board concepts on the issue of dual cards”). Two other panels have tacitly affirmed the dual-card doctrine without so much as mentioning Bruckner. See Caro Bags, Inc., 285 N.L.R.B. 656, 669 (1987) (adopting an Administrative Law Judge’s finding that Crest Containers is the last word on the dual-card doctrine without discussing Bruckner); Windsor Place Corp., 276 N.L.R.B. 445, 449 (1985) (same).
On the other hand, the Board also has suggested that it views Bruckner as signalling the demise of the dual-card doctrine. For example, in Great Southern Construction, Inc., the Board relied on Bruckner in allowing an employer
to recognize whichever of the two Unions it deemed represented a majority of its unit employees. True, the Board, in Bruckner, cautioned that the safe course for an employer faced with rival claims of majority support would be to refuse recognition. However, this was addressed to the employer’s risk of violating Section 8(a)(2) by recognizing a union which did not in fact enjoy majority support____ [Where] there is no evidence that [the] ... Union did not have majority status [the] ... Employer properly recognized the labor organization it perceived represented a majority of its employees.
266 N.L.R.B. 364, 365 (1983) (emphasis added). The Board did not specifically address the dual-card question since the parties had not raised the issue, see id. at 365 n. 5, but the Board’s position, as in Bruckner, seemed to be that the employer may recognize the union which demonstrates majority support to the employer, despite the later discovery of dual cards, in the absence of a properly filed election petition. See also The Film Consortium, Inc., 268 N.L.R.B. 436 (1983) (citing Bruckner for the proposition that “the filing of a valid petition is ‘the operative event for the imposition of strict employer neutrality in rival union, initial organizing situations’ ”).
The Board’s own confusion recently culminated in Rollins Transportation Systems, Inc., 296 N.L.R.B. No. 108, 132 L.R. R.M. 1185 (1989). Although Rollins was a representation (not an unfair labor practice) case, the Board offered some views that are pertinent to the issue at hand:
Nothing in our holding that no recognition bar exists in the conduct of an election should be construed to cast doubt on the legitimacy of the Employer’s granting recognition to the Intervenor. Likewise, this holding should not lead employers in other factually similar situations to be reluctant, for fear of violating the Act, to grant recognition to unions that have demonstrated majority support. Indeed, we agree with our dissenting colleague that the grant of recognition here would be lawful under Bruckner because the intervenor was recognized before the Employer had knowledge of the Petitioner and its petition. Knowledge is a critical element in determining the lawfulness of an employer’s granting recognition in the rival union, initial organizing unfair labor practice setting.
Id., 132 L.R.R.M. at 1187-88 n. 5 (emphasis added). If knowledge of the rival union is a critical element of an unfair labor practice charge, the Board could not possibly mean to impute knowledge of the dual nature of the authorization cards to an employer who only learned of the dual cards after it had recognized the union. Once the union demonstrates majority support to the employer, that employer should be justified in recognizing that union.
The upshot of these cases is simply that the Board has failed to adopt and explain any coherent position on the dual-card doctrine. In such a situation, it is not for this court to establish Board policy. When the Board waivers between two diametrically opposed policies and fails to explain coherently the legal standard it purports to apply, we require the Board to choose the course to which it will adhere in the future. *358See, e.g., United Food & Commercial Wkrs. v. NLRB, 880 F.2d 1422, 1435-36 (D.C.Cir.1989) (when “the Board has decided to apply a new approach ... then we ask the Board to explain why it has made the shift and to identify those factors that will control the determination”). In United Food and Commercial Workers, we were unable to ascertain the Board’s legal standard regarding an employer’s duty to bargain with its employees over a relocation decision. Id. at 1423, 1436. Without precisely indicating its policy on the matter, the Board reached a conclusion that was consistent with some past decisions, but inconsistent with others. See id. at 1437-38. We rejected the Board’s approach:
As disputes arise, such as the current one, that force the Board to chart a course in the more ambiguous or disputed territory of ... [a legal] test, the Board must accept responsibility for clarifying and identifying the standards that are guiding its decisions.
Id. at 1436. The court also held that the proper place for such an explanation was with the Board, not the appellate court:
We do not mean to intimate that the Board could not rationally find ... [the different cases] distinguishable. The Board's counsel points to some arguably plausible points of distinction. But we again state that it is not up to us to imagine what distinctions the Board may have been relying on to decide the present case as it did, in apparent tension with its previous decision____ The Board’s summary disposition of this case reveals no Board attention to the possible inconsistencies, and thus we are left with an apparent conflict.
Id. at 1437-38 (emphasis and citation omitted); see also Hicks v. NLRB, 880 F.2d 1396, 1400 (D.C.Cir.1989) (remand proper “for further action either consistent with [the Board’s] existing precedents or for generation of a new jurisdictional rule”); Pacific N.W. Newspaper Guild, Local 82 v. NLRB, 877 F.2d 998, 1001, 1003 (D.C.Cir.1989) (where Board’s application of law is “inconsistent and inadequately explained” and the Board “fails to explain coherently its prior precedent” this court will remand for further explanation).
The serious uncertainty created by Bruckner and its progeny necessitates reconsideration of the dual-card doctrine by the Board.
IV.
Bruckner appears to abolish the dual-card doctrine in Midwest Piping -type cases. The Board’s subsequent decisions have obscured that holding to such an extent that it is impossible to discern the Board’s precise position regarding dual cards. The majority opinion in this case may be an adequate resolution of the Bruckner issue; the problem is that the majority relies on a rationale of its own making, not one offered by the Board. It may be that the majority, by fiat, has now fixed the Board’s case law by simply declaring it to be as the majority states it. If the Board acquiesces in this position, then the law will no longer be in disarray. But this approach, while arguably expedient, is flatly at odds with the law of the circuit requiring a remand.
Respectfully, I dissent.
. Although the Administrative Law Judge in Crest Containers purports to ' distinguish the dual-card doctrine from Midwest Piping, his decisión appears merely to extend Midwest Piping to cover situations where the employer is unaware of a rival union.