(dissenting and concurring):
I could not at all agree that an employer who has learned that a union organizing campaign is in progress violates § 8 (a) (1) by asking employees not to sign cards “for a couple of days * * * until we find out something about this Union and we will * * * have a meeting and talk things over.” The purpose of § 8(a) (1) is to safeguard the employees’ right, guaranteed by § 7, to decide for or against a union. It does not grant unions a protected period during which they can talk to employees while the employer cannot do so on an informed basis. If the employer remains silent until he has found “out something about this Union,” what he is likely to find out is that the Union has already signed up a majority on the basis of representations as to probable achievements which he could lawfully have countered under the principles we have recognized in NLRB v. River Togs, Inc., 382 F.2d 198, 201 (2 Cir. 1967) and NLRB v. Golub Corp., 388 F.2d 921, 928 (2 Cir. 1967), and then it will be too late. I fail to perceive how an employer can be said to “interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 7” when he politely asks them not to take action, possibly irrevocable for a long time, to make a union their representative until they have heard the other side. To the contrary, an employer’s request for a reasonable opportunity to present “views, argument, or opinion” to his employees falls within the protection of § 8(c). In regulating election tactics the Board has frequently and properly stressed the importance of a right of reply to the effective exercise of § 7 rights, as, for example, in the “24-hour” rule of Peerless Plywood Co., 107 N.L.R.B. 427 (1953). See Bok, The Regulation of Campaign Tactics in Representations Elections under the NLRA, 78 Harv.L.Rev. 38, 91-106 (1964); such a right is no less vital when an employer is confronted with a card-signing campaign.
As I read Judge Anderson’s opinion, we are not in disagreement on this score; he justifies the finding that Yokell’s seemingly innocent request violated § 8 (a) (1) on the basis that the evidence of later violations gives it a color which it did not have on its face. While I do not quarrel with this approach, I find no sufficient evidence of other violations of § 8 (a) (1) of such gravity as to convert what on its face was a reasonable and lawful request into an infringement of § 7 rights.
The first of these other alleged violations is the taking of the secret poll at the beginning of the April 12 meeting. The Board itself seems to have recognized that one of the Yokells’ purposes was to determine whether the Union’s claim of majority status, made earlier the same day, was well founded. However, it faulted the employer because in its view the poll “was utilized by the respondents to induce the employees not to join the Union so that respondents could bargain directly with the employees,” the latter conclusion being based on a part of a statement made by Eugene Yokell before the poll was conducted; “the reason that I gave out the ballots were [sic] to see if the majority of the people wanted the union to represent them, because if they did, then we had nothing to talk about, because we would have to talk with the union. If they didn’t then we could go on with the meeting and see what our problems were, if any.”
Apart from the italicized sentence, taking the poll was entirely legitimate— it was much less suspect than the one in NLRB v. Lorben Corp., 345 F.2d 346 (2 Cir. 1965), where this court refused to enforce the Board’s decision finding a violation of § 8(a) (1). See also NLRB v. Johnnie’s Poultry Co., 344 F.2d 617 (8 Cir. 1965).1 The italicized sentence *759seems utterly innocent to me. Yokell properly recognized that if the poll confirmed the union’s claim to a majority, he could not lawfully proceed. On the other hand, if the poll should negate the union’s claim or cast reasonable doubt upon it, he was free at least to see what the employees’ gripes were, to ascertain what the union was proposing to do about them, and to argue that the latter’s representations were unattainable, NLRB v. River Togs, Inc., supra; NLRB v. Golub Corp., supra, although even as to that he must carefully observe the shadowy line dividing a prediction from a “threat of reprisal.” Whether he could go beyond this by indicating possible willingness to do something about complaints is debatable. The problem arises from the difficulty — perhaps the impossibility — of distinguishing what the employer would have been willing to do apart from the union’s appearance and what he offers as a result of it, and I assume that on this account Congress did not transgress the First Amendment when it excluded a “promise of benefit” from the protection of § 8(c). About all we know as to either the promise or the actual grant of benefits is that § 8(a) (1) “prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.” NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435 (1964). While one can hardly be dogmatic as to the application of so inexact a standard, at least an employer does not violate it merely by entertaining employee requests, cf. Bok, supra, 78 Harv.L.Rev. at 112-116, simply on the theory that the mere act of listening may imply some possibility of acceptance. Since Yokell did not say he would do more than this, his promise “to go on with the meeting” if the poll indicated he properly could should not infect otherwise legitimate action.2
I agree with my brothers that the grant of a Good Friday holiday and the later grant of extra vacation benefits were de minimis, see NLRB v. Ralph Printing and Lithographing Co., 379 F. 2d 687, 691-692 (8 Cir. 1967), and that the August wage increase must fairly be regarded as merely a substitute for the raises generally given in March or April, which the Yokells thought they could not grant this year because of the union’s activities. However, they affirm the Board’s order in this respect because of the color given by other alleged violations. In my view the only valid finding of violation relates to the threat to move the plant made during or after the April 12 meeting. Granting that the Board may, indeed must, consider the entire context of an employer’s conduct, I do not believe this isolated comment justifies our affirming the Board’s conclusion as to the illegality of an otherwise innocent wage increase granted four months later, or converts the otherwise de minimis benefits into more than they are. Indeed, the record is singularly unilluminating as to how much union activity was still going on when the later benefits were conferred.
I agree with the decision to deny enforcement to that part of the Board’s order banning the Yokells from threatening “other reprisals.”
. The poll conducted here is clearly distinguishable from the one found illegal in Madison Brass Works, Inc. v. NLRB, 381 F.2d 854 (7 Cir. 1967), where the employer, after giving an anti-union speech, asked for a show of hands.
. NLRB v. Charles R. Krimm Lumber Co., 203 F.2d 194 (2 Cir. 1953), cited by the majority, does not require the decision here. In that case, the employer’s course of conduct was much more coercive and the purpose of the poll, according to one of the proprietors, was clear — “it got out among the men that they [the employers] were against the Union.” 97 N.L.R.B. 1574, 1586 (1952).