(concurring in part and dissenting in part):
With all respect, I would affirm and enforce the Board’s order as it stands. I am not unmindful of the majority’s reluctance to accept the punishment of the guilty employer by a remedy which impinges to some degree upon the innocent Florida employees. But the extent to which the latter feel aggrieved by this circumstance is wholly speculative, since none of them are before us complaining of the deprivation of their freedom of choice which moves my brethren to circumscribe the Board in this instance.
I
The question presented by this case involving the nature of the relief ordered by the Board is admittedly difficult. We have been beset by contentions in the sharpest possible conflict. The employer-petitioners assert that the order exceeds the limits of the Board’s discretionary authority to fashion appropriate remedies for violation of the Act. The union strenuously argues that it does not go far enough. This divergence of opinion did not characterize the Board’s deliberations, all of its members having joined in the prescription of the remedy.
The order in the first instance traverses familiar terrain, including the imposition of back pay liability until the New York employees who choose not to move to Florida obtain substantially equivalent employment. The order goes further, however, and requires petitioners upon request to bargain with the union, whether they remain in Florida or return to New York, without requiring the union first to reestablish its majority support. In order to preserve some flexibility with respect to the new Florida employees who might not wish continued representation by the Union, the Board relaxed its normal contract bar rules so that any contract resulting from the Board’s bargaining order1 would bar an election petition for only one year.
*305In so requiring petitioners to bargain with the union at their Florida plant, the Board modified the recommendations of the Trial Examiner. He had concluded, with visible reluctance, that, if petitioners decided to remain in Florida, prior Board doctrine limited the available remedy to requiring liability for backpay from the time of discharge, an offer of reinstatement at the Florida plant, and the payment of moving expenses to those accepting reinstatement.2 But in so concluding he lamented the ineffectiveness of these traditional remedies in the circumstances of this case. In his view, it allowed the employer here to evade its statutory responsibilities with little, if any, adverse consequences. Requiring an offer of reinstatement in Florida seemed especially unsatisfactory since most of the employees were married women with ties to New York. Nor did backpay liability, in his view, constitute a significant factor, since the tight labor market in New York minimized the likelihood of substantial liability. Nevertheless, despite the concededly unsatisfactory nature of his recommended order, the Examiner regarded as too drastic the union’s proposal that Garwin be required to resume business in New York.
In modifying the recommended order, the Board was concerned about the same factors that troubled the Examiner. In its view, the seriousness of the violations reflected in this record impelled a reexamination of Board remedial policy. Paramount in its concern was the need to fashion a remedy which would “rémove any consequences of the unfair labor practices which enable the [petitioners] * * * to benefit from their unlawful course of conduct.” Since the Board did not think it likely that Gar-win’s New York employees would accept employment in Florida, or that their fail*306ure to do so would result in any significant back-pay liability, conditioning recognition of the union at the new location upon the latter’s establishing a majority was thought to. enable petitioners with impunity “to achieve their primary illegal objective, i. e., to escape bargaining.”
Nevertheless, the Board did not think it was necessary to achieve the statutory objectives at the cost of ordering a return to New York. In its view, the issuance of an effective bargaining order, which would frustrate Garwin’s design to escape dealing with the union, would best serve the purposes of the Act. Whatever impact this order might have upon the interests of newly-hired Florida employees, those interests were thought rationally subordinate to the objective of providing an effective remedy for the unfair labor practices committed.3
II
In deciding whether the present order is out of keeping with the statute, whether by going too far or by not going far enough, a reviewing court must be mindful of the broad language with which Congress has defined the Board’s discretion. When the Board finds an unfair labor practice to have been committed, Section 10(c) of the Act authorizes it “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.” This power, as has been recently emphasized, is “a broad discretionary one, subject to limited judicial review”; and its exercise is not to be disturbed “unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964). See also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941).
Garwin contends that on the facts of this case the order imposed is an abuse of discretion because it is likely to impose union representation upon a nonconsenting majority of the new Florida employees. This is said both to infringe the rights of these employees to refrain from engaging in concerted activities and to frustrate the policy of the Act against recognition of minority unions.4 But I cannot view the interests of these employees in the absolute terms which petitioners ascribe to them. It is clear that an absence of majority status will not always defeat an order to bargain. See Franks Bros. Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1943).5 Upon a proper showing, competing con*307siderations may override this claim. Ibid. Thus, the bounds of the statute are not automatically exceeded whenever there is a possibility that the bargaining representative is not the choice of a majority of the employees. Admittedly, our task does not end here when we determine that one policy of the Act has been subordinated in some degree to another Congressional purpose. We must go on to decide whether the particular accommodation of such policies made by the Board in response to the particular circumstances of this case fairly falls within the range of the Board’s primary authority to effectuate the purposes of the Act. See, e. g., NLRB v. Seven-Up Bottling Co., supra.
In devising the remedy adopted, the Board obviously considered the desirability of this measure in the light of the effectiveness of its more usual responses. The problem of the “runaway” shop has long assailed the Board.6 In the present case, the Board reexamined its policy and found it inadequate, at least in relation to an employer whose purpose to throw off its union obligations coincided with economic and geographic circumstances which minimized the penalty to be anticipated under the Board’s usual approach. Because those measures would permit Garwin to retain the fruits of its unfair labor practices at slight cost, the Board determined to take additional steps to remedy the deliberate evasion of statutory responsibilities portrayed by this record. Ordering petitioners to bargain with the union they sought to escape, at least for a limited time, was thought to be the most appropriate method.
Weighing the efficacy of alternative approaches, and drawing upon past experience to guide the choice between them, are inherent in the Board’s remedial powers. It is the Board, not the courts, which is authorized to make these judgments. See NLRB v. Seven-Up Bottling Co., supra; Phelps Dodge Corp. v. NLRB, supra. Thus, it cannot be said that the Board’s present action is unrelated to the purposes of the Act. The order prevents petitioners from successfully evading their duty to bargain with the union. I cannot agree with the majority that that conclusion was so misplaced as to warrant the substitution of judicial judgment. The remedy here prescribed is not, in its precise factual context, a “patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Fibreboard Paper Products Corp. v. NLRB, supra, 379 U.S. at 216, 85 S.Ct. at 406; NLRB v. Seven-Up Bottling Co., supra, 344 at 347, 73 S.Ct. 287; Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943).
It seems equally clear that the order has not been fashioned in such disregard for the circumstances of this case as to be oppressive. See NLRB v. Seven-Up Bottling Co., supra, 344 U.S. at 349, 73 5. Ct. 287. Cf. Republic Steel Corp. v. NLRB, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6 (1940). The Board has weighed the interests of the new Florida employees in being free from a bargaining representative not of their choosing. In deference to this interest and to accommodate the conflicting policies of the *308statute, the Board relaxed its customary contract bar rules. Petitioners argue that the Board’s order unduly interferes with the rights of their new employees. But the Board, as the agency entrusted with the task of permanently protecting these rights, is perhaps in a better position to assess the impact of this temporary limitation than an employer who relies on those rights to preserve the benefits of its unfair labor practices.7 The order took into account the interests of the new employees; it was devised with careful reference to the circumstances at which it was directed; and it was “not intended to fix a permanent bargaining relationship without regard to new situations that may develop.” Franks Bros. Co. v. NLRB, supra, 321 U.S. at 705, 64 S.Ct. at 819.
That the Board, in striking a balance between the need to protect a collective bargaining relationship and the interests of new employees in being free to select their own bargaining agent, has determined to give precedence to the former is, in my view, a judgment consistent with its statutory responsibilities. “It is not for us to weigh [the] * * * countervailing considerations.” NLRB v. Seven-Up Bottling Co., supra, 344 U.S. at 348, 73 S.Ct. at 289. It is the Board’s task to employ its acquired expertise in applying the broad policies of the Act to the various situations which may arise. Translating these policies into practical application, with due regard for accommodating their frequently competing implications, necessarily involves exercising a broad discretion. Our task ends when we have determined that that discretion has been exercised within the range of Congress’ mandate to the Board “to effectuate the purposes of the Act.” Under the circumstances of this case, I cannot say that the present order bears such a strained relationship to the policies of the Act that the Board exceeded its grant of discretion in adopting it.
The attacks on the remedy devised in this instance have been largely directed at its effectiveness. Garwin urges that the Board’s prior policy is sufficient to repair whatever unfair labor practices it may have committed; and the union argues that neither the past policy nor the present order is a strong enough antidote for the violations shown on this record. Determinations of this nature are, however, peculiarly for the Board to make. “[T]he relation of remedy to policy is peculiarly a matter for administrative competence.” Phelps Dodge Corp. v. NLRB, supra, 313 U.S. at 194, 61 S.Ct. at 852. One of the essential conditions for the development of such competence is latitude for the Board in living with its problems, and in fashioning new and changing responses to them as they reappear in altered guise. Here the Board has felt it necessary to enlarge somewhat the remedy it has been applying, in order to make sure that a bargaining relationship cannot blithely be cast aside because the back pay award happens to be, in the specific context, a toothless sanction. The Board has not thought it necessary to go the whole way of ordering the employer to move back, as the union insists it must do.
It must be recognized that the Board is operating in an area where the facts are as various as the mind of man, and where the Board, if it is to mediate between clashing interests with moderation and restraint, must have scope for inventiveness and experiment. The remedy devised by the Board on this record is not beyond the statutory pale. Its appropriateness under the circumstances, then, rests in the Board’s judgment and not in this court’s.
. The Board has placed no time limitation on its order to bargain, as distinct from the one-year bar prescribed in respect of any agreement which may be reached in the bargaining. However, the order cannot be viewed as continuing the bargaining representation interminably. In respect of a similar order entered in Franks Bros. Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944), Mr. Justice Black, speaking for the Court, stated:
Contrary to petitioner’s suggestion, this remedy, as embodied in a Board *305order, does not involve any injustice to employees who may wish to substitute for the particular union some other bargaining agent or arrangement. For a Board order which requires an employer to bargain with a designated union is not intended to fix a permanent bargaining relationship without regard to new situations that may develop. * * But, as the remedy here in question recognizes, a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed. * * * After such a reasonable period the Board may, in a proper proceeding and upon a proper showing, take steps in recognition of changed situations which might make appropriate changed bargaining relationships.
321 U.S. at 705-706, 64 S.Ct. at 819.
. Orders dealing with runaway shop problems are customarily phrased in alternatives. The employer is given the option of resuming business at his original location or of remaining at his new location. If the latter option is selected, prior Board doctrine called for imposing conditions similar to the ones recommended by the Trial Examiner in this ease. The most relevant of these provisions for present purposes was that which conditioned a duty to recognize the union upon a showing that the employees transferring from the old plant and the new employees who wanted the union to represent them comprised a majority of the employees in the unit. But this provision was only applied when the employer illegally transferred his plant some distance from the original location. See Mount Hope Finishing Co., 106 N.L.R.B. 480 (1953), enforcement denied, 211 F.2d 365 (4th Cir. 1954); Brown Truck & Trailer Mfg. Co., 106 N.L.R.B. 999 (1953); Industrial Fabricating, Inc., 119 N.L.R.B. 162 (1957), enforced sub nom., NLRB v. Mackenish, 272 F.2d 184 (6th Cir. 1959) (per curiam); Sidele Fashions, Inc., 133 N.L.R.B. 547 (1961), enforced sub nom,., Philadelphia Dress Joint Board, International Ladies’ Garment Workers’ Union v. NLRB, 305 F.2d 825 (3d Cir. 1962). When the relocation was near the original plant, the Board assumed that a majority of the employees would have transferred had it not been for the employer’s unfair labor practices. California Footwear Co., 114 N.L.R.B. 765 (1955), enforced in part sub nom,., NLRB v. Lewis, 246 F.2d 886 (9th Cir. 1957). Earlier Board practice, however, seemed to indicate that an employer would be required to bargain with the union regardless of the distance of the move. Compare Mount Hope Finishing Co., supra, with Rome Products Co., 77 N.L.R.B. 1217 (1948) and with New Madrid Mfg. Co., 104 N.L.R.B. 117 (1953), modified, 215 F.2d 908 (8th Cir. 1954).
. The Board noted that in this case the Florida operation was started from scratch and with a work force newly hired in Florida. Thus it could be said that these jobs, and the statutory protections which accrued to them, owed their very being to (1) Garwin’s unfair labor practices, (2) the Board’s unwillingness to order the plant to be returned to New York, and (3) the failure of the discharged New York employees to displace the Florida employees. “On balance, [the Board concluded], (the latter’s) interests must yield to the statutory objective of fashioning a meaningful remedy for the unfair labor practices found.”
. Petitioners do not challenge that part of the order which would require them to bargain with the union, without regard for its majority status, if they resume operations in New York. The cases seem tó foreclose any such contention. Having dissipated the union majority by their unfair labor practices, they may properly be prevented from retaining the benefits of such conduct. See, e. g., Franks Bros. Go. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1943).
. See also NLRB v. International Union, Progressive Mine Workers, 375 U.S. 396, 84 S.Ct. 453, 11 L.Ed.2d 412 (1963); NLRB v. Katz, 369 U.S. 736, 748 n. 16, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); NLRB v. P. Lorillard Co., 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380 (1942); Sakrete of Northern Cal., Inc. v. NLRB, 332 F.2d 902, 909 (9th Cir. 1964), cert, denied, 379 U.S. 961, 85 S.Ct. 649, 13 L.Ed.2d 556 (1965); NLRB v. Philamon Lab., Inc., 298 F.2d 176, 182-183 (2d Cir.), cert, denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); NLRB v. J. C. *307Hamilton Co., 220 F.2d 492 (10th Cir. 1955); NLRB v. Geigy Co., 211 F.2d 553, 558-559 (9th Cir.), cert, denied, 348 U.S. 821, 75 S.Ct. 33, 99 L.Ed. 647 (1954); Joy Silk Mills, Inc. v. NLRB, 87 U.S. App.D.C. 360, 185 F.2d 732, 744-745 (1950), cert, denied, 341 U.S. 914, 71 S. Ct. 734, 95 L.Ed. 1350 (1951); NLRB v. Andrew Jergens Co., 175 F.2d 130, 134-135 (9th Cir.), cert, denied, 338 U.S. 827, 70 S.Ct. 76, 94 L.Ed. 503 (1949).
. See, e. g., Schieber Millinery Co., 26 N.L. R.B. 937, modified by consent, 116 F.2d 281 (8th Cir. 1940). Nevertheless, so far as I can determine, this is the first instance when a bargaining order of this nature has been challenged on review. I do not consider NLRB v. Rapid Bindery, Inc., 293 F.2d 170 (2d Cir. 1961), on which petitioners and the majority rely, as dispositive. The court there was concerned with a plant relocation which was motivated by economic reasons, not by hostility to the union or a desire to escape collective bargaining.
. Cf. Brooks v. NLRB, 348 U.S. 96, 103, 75 S.Ct. 176, 181, 99 L.Ed. 125 (1954): “The underlying purpose of this statute is industrial peace. To allow employers to rely on employees’ rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it.”