(concurring in part and dissenting in part) :
I find it necessary to disagree with certain portions of the majority opinion, principally in the area of enforcement of “remedial” provisions of the Board’s order.
First, however, I state my agreement with that portion of Judge Butzner’s opinion which pertains to the notice or declaration of company attitude toward unionization of its plants. It is clear that Stevens does not look with favor upon such unionization, as evidenced by its notice to employees which was posted on the bulletin board. Similar notices and statements have been held by this court on several occasions to be nonviola-tive of section 8(a) (1) as noted by Judge Butzner. There is conflict among the circuits on this question but, notwithstanding this court’s repeated statements of its position, the Board has steadfastly refused to recognize and respect the decisions of this court. Instead, in cases recurring in this circuit where this question arises the Board persists in finding such a company declaration of attitude as violative of the Act. I agree with Judge Butzner’s summarization that “We adhere to our previous rulings.”
It is apparent that the Board issued some very unusual and extreme directives against Stevens, not only in these cases but in Stevens I and Stevens II. The Company states its complaint concerning the attitude and action of the Board in the following language:
“In the view of the Board, identical results follow automatically from the Board’s self-generated momentum in the first Stevens case — a case in which the Board, over a period of months, heard 443 witnesses testifying on a multitude of disputed and material factual issues, and upon such conflict never once found any witness for the Company to be telling the truth or any witness for the Union or the Board to be telling anything but the truth!”
The reference to 443 witnesses is amplified in a footnote to the company brief by a statement that a majority of these witnesses testified for the Company. They included not only supervisors and *1025representatives of management, but rank and file employees and persons unconnected with the Company.
In referring to the “remedies” directed by the Board and imposed upon Stevens, in the first instance, the Company calls attention to the facts that when these directives were issued against Stevens in the first case they had not been requested by any party to the case; they had not been recommended or suggested by the Board’s trial examiner; prior to ordering them, the Board did not give any notice or hold any hearing or invite any discussion or argument, on any question as to whether these remedies or any like them would be appropriate or should be considered in that case, or in any case.
The Board would require that, with regard to the notice to employees as prescribed by the Board, the notice shall be posted on the bulletin board, read to the employees, and mailed to them at their homes. The question naturally arises: Why such triplicate “notification” ? After the notice has been placed on the bulletin boards where the employees regularly read posted notices do they need, or do they desire, to receive exactly the same notice, without any explanation, at their homes? The Board would further require that when the employees return to the plant they are to be taken off their jobs and the same notice read to them again. The Company charges, and not without justification, that after a proper posting of the notice has been accomplished the Board’s purpose beyond that is not notification but appears to be simply the placing of the Company in as many different postures of obeisance as the Board can devise.
Perhaps the most dramatic of these directives is the requirement that the company officials shall assemble the employees “during working time, by departments and by shifts,” and read to them the notice or declaration as dictated by the Board. This declaration is essentially, in form, a confession of guilt. The impression on any audience would be that the employer is being forced to orally confess that he has broken the law and is being required to declare that he will not do so again. In my view this is an amazing edict to be handed down by an agency of our Government. Here an administrative arm of the Government orders such a declaration and directs that it be made before assemblages of fellow citizens. Even the convicted felon can never be made to confess that he has violated the law and he can, and often does, deny guilt; indeed, at every opportunity he may proclaim that he has been unjustly convicted.
The forcing of such declarations, in the nature of confessions or recantations, is not a matter to be lightly regarded. The feeling and the resolution of free men against forced utterances can become extremely intense. Over many centuries they have suffered oppressions rather than admit wrongdoing which they deeply and devoutly believed they had not committed. In these newly devised directives of the Labor Board there appears to be an ominous trend, whether so intended or not, toward old oppressions, the eroding of fundamental rights and freedoms. Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928), observed that:
“ * * *. Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
Justice Learned Hand clearly expressed the thought in the following terms :
“ * * *. Forcibly to compel anyone to declare that the utterances of any official, whoever he may be, are true, when he protests that he does not believe them, has implications which we should hesitate to believe Congress could ever have intended. [W]e can very well under- * * * *1026stand the sense of outrage which anyone may feel at being forced publicly to declare that he has committed even a minor dereliction of which in his heart he does not believe himself guilty.” Art Metals Construction Co. v. N. L. R. B., 110 F.2d 148, 151 (2 Cir. 1940).
At the time these cases came before us the two courts, other than the Court of Appeals for the Second Circuit, which had considered this reading-of-notice directive, strongly disapproved it. The United States Courts of Appeals for both the Fifth Circuit and the District of Columbia Circuit are in disagreement with the Second Circuit on the subject.
“The requirement of the Recommended Order that the Notice be read by management to any employee who requests it, as amended by the Board to require it be read to each employee, singly or collectively, is unnecessarily embarrassing and humiliating to management rather than effectuating the policies of the Act.” N. L. R. B. v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 869 (5 Cir. 1966).
Noting the decision of the Second Circuit in Stevens I (denying enforcement ' of the Board’s directive concerning reading of the notice) the Court of Appeals for the District of Columbia stated:
“ * * -x-_ The ignominy of a forced public reading and a ‘confession of sins’ by any employer, any employee, or any union representative makes such a remedy incompatible with the democratic principles of the dignity of man.” International Union of Electrical, R. & M. Wkrs., etc. v. N. L. R. B„ 127 U.S.App.D.C. 303, 383 F.2d 230, 234 (1967), cert. den. sub nom., Scott’s, Inc. v. N. L. R. B., 390 U.S. 904, 88 S.Ct. 818 (1968).
Beyond “democratic principles” there is here involved the ultimate principle of individual liberty and freedom guaranteed to every citizen by our Constitution against the encroachment of any and all power, including that of government itself. In the present case the Board has adopted an “option” prescribed by the Second Circuit in Stevens II, namely that the reading of the notice to the employees may be done “by either a Board agent or Company official.” If, however, the Company must assemble its employees and open its premises to an agent of the Labor Board who stands and reads the employer’s declaration, the true nature of the situation is neither altered nor disguised. The forced statement of the employer is simply being spoken publicly for it by an agent. Certainly, also, on such a stage the Government is being cast in an entirely new and most unflattering role as its delegate solemnly declaims, before the employees, a statement as commanded from the employer, which is in truth not a voluntary statement of the employer at all, but a compelled declaration. The Court of Appeals for the District of Columbia specifically considered this “option,” as approved by the Second Circuit, and rejected it.
“ * * Board involvement in a reading of the order would inescapably draw the Board into the very conflict areas it should .remain aloof from, except for the need to judge.” International Union of Electrical, R. & M. Wkrs., etc. v. N. L. R. B., 127 U.S. App.D.C. 303, 383 F.2d 230, fn. 5, p. 233 (1967), cert. den. (supra).
In my view the reading of the notice, as ordered, cannot fairly be said to effectuate the purposes and policies of the Act. It is not remedial in the true sense but is simply penalizing in nature.
In these cases before us the Board has directed, and my brothers would enforce, a still further “remedy,” that is, that Stevens shall give the Union “access” to all the bulletin boards in all the company's plants in North Carolina and South Carolina “for a period of one year.” In this directive the Board has taken leave of any concept of requiring the Company to disavow unfair labor practices in the future. Obviously, the nature or purpose of this directive is simply to aid the Union in its organizing efforts among the company’s employees, to require the Company to furnish such *1027aid to the Union by turning over property and facilities within its plant in the midst of its employees while they are at work, and on a continuing basis for a period of a year.
In its Decision and Order in the present cases, the Board has said nothing whatever in justification or support of this directive. It may be pertinent to consider whether the Board did so in the earlier Second Circuit “Stevens cases.” In Stevens I the Second Circuit held that the Board had made no showing justifying such an order. J. P. Stevens & Co. v. N. L. R. B., 380 F.2d 292, 305 (2 Cir. 1967). In Stevens II the record appears to have contained nothing whatever on this subject yet the court, in that case, upheld this directive after having expressly disapproved it in Stevens I.
The Board now relies on the decision of the Second Circuit in Stevens II and thus it is in order to analyze briefly what the situation was on this question in Stevens II. There the court said:
“ * * *. In the case before us, the Board contends that Union access to the bulletin boards is necessary in order to offset the Company’s use of the boards in its campaign of coercion and in the posting of lists of employees who had joined the Union, the names of those employees who withdrew being ‘scratched’ from the lists. We think that in view of the Company’s use of the boards in combatting the Union, giving the Union reasonable access to them will effectuate the purposes of the Act, in that it will help to restore to the employees the opportunity to hear all viewpoints. We will therefore enforce this portion of the order.” Textile Workers Union of America, etc. v. N. L. R. B., 388 F.2d 896, 905 (2 Cir. 1967).
In Stevens II in which the last above quoted language appears, there was nothing in the record to show any use of the plant bulletin boards in “com-batting the Union.” In Stevens-1 there had been evidence that on the bulletin boards in some of the plants a statement of the Company’s position regarding unionization had been posted and further evidence that in certain of these plants there had been posted copies of company letters in reply to employees who had written to the Company giving, notice of their union affiliation. There had otherwise been no evidence at any time of any “posting of lists of employees who had joined the Union,” or any evidence that the Company ever had any connection with any “scratching,” at any location, of the names of any employees who withdrew from the Union. As to restoring to the employees the opportunity to hear all viewpoints it does not appear from the evidence that there was any real lack of such opportunity. On the contrary, the record in all of these cases is replete with references to repeated and continuous contacting of employees by union representatives around the plant premises, at the employees’ homes, at union meeting halls, and through leaflets, letters, telephone calls, visits and assemblages. Upon the evidence in Stevens I of the Company’s use of the bulletin boards the Second Circuit rejected the directive in question. Yet, in Stevens II, with nothing in the record on the subject, the court approved what it had previously disapproved.
In the present case, without showing or saying anything on the subject, the Board simply issues this directive and asks this court to approve and enforce it. Moreover, the Board here again asks the application of this directive to all of the Company’s plants in North Carolina and South Carolina, most of which have never been touched by a single word of evidence in any of these cases. There is nothing to show the names or locations of all of these plants. There is nothing to show that there has ever been any intimation of any union organizing effort at most of those plants. There is no showing or indication that the Company, or any company representative, has ever said anything about the Union to any employee in any of those unaffected plants at any time. Yet, these plants, just as the plants in which unfair labor practices are alleged and have been *1028found to have occurred, are ordered to turn over to the Union all their bulletin boards for a period of one year. The Board does not make even a casual effort to define or limit the nature of the material which the Union may place on the company bulletin boards, the quantity thereof, or the frequency of the union representative’s access to the bulletin boards. What would be “reasonable” union uses of the bulletin boards under all the varying circumstances of plant operations are indeed matters on which “reasonable,” yet thoroughly genuine, disagreements would almost inevitably occur. Controversy over such questions could produce a veritable tangle of litigation unless the Board could persuade the courts, as it now seeks to do, to leave all such matters to the Board’s discretion, unfettered and unbridled.
It is an unrealistic assessment of the situation to say merely that the question is one of allowing the Union access to space on the Company’s bulletin boards. By means of what it might place in front of employees while at their work, the Union could excite them, arouse them, distract them, and create widespread deterioration of morale and performance in the company plants. As a practical matter this directive, if enforced, could conceivably place in the hands of the Union a very large measure of control over company operations and over the success or failure of such operations.
The Company argues that it never had any opportunity to argue or present its position with reference to the issued directives and no indication whatever that the Board was considering any such “remedy” directives as it has in fact issued. Perhaps it might have been in vain for the Company to have argued property rights to the Board, pointing out that the “right of property” is a cornerstone of any free society and that the Constitution of the United States provides that neither federal nor state government (and therefore no arm or agency of either) may invade one’s property without due process of law.
“It [the Act] does not require that the employer permit the use of its facilities for organization when other means are readily available.” N. L. R. B. v. Babcock & Wilcox Co., 351 U.S. 105, 114, 76 S.Ct. 679, 685.
On the whole subject of remedies the Board deems that it has a wide latitude to “tailor” and devise orders which will effectuate the policies of the Act and that in this it has developed superior "talents" and”'*discernments which have generally come to be referred to as administrative “expertise.” The first and basic caveat with respect to this proposition is that, if accepted at face value, it would mean that the power of the Board is virtually limitless. As becomes apparent in the present cases there is virtually nothing that the Board might not require of an employer in the guise of “tailoring” a remedy. But the Act does not itself give any presumptive validity whatever to “remedy” devising by the Board. The presumption of validity, accorded by the Act to the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole, is not provided with respect to Board decreeing of remedies. “Remedy” directives are left within the judgment and discretion of the court, the court weighing and appraising them for itself and “enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board” as the court may see fit. 29 U.S.C. § 160(e). This consideration is of particular force where, as here, the remedy directives are innovations and, as the Board itself recognizes, beyond the “conventional.” As has been pointed out, the Company has never presented, nor has it been afforded any occasion to present, to the Board the arguments which it presents to the court. Courts should not be too ready to relax their scrutiny or too willing to agree that the judicial function is largely preempted when the Board raises the magic talisman of “expertise” in the support of a claimed exclusive right to “tailor” a remedy. As was *1029stated by the Supreme Court in Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962):
“* * Expert discretion is the lifeblood of the administrative process, but ‘unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules w.ith no practical limits on its discretion.’ ”
Again, in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 490, 71 S.Ct. 456, 466, the Court issued a warning in the following language :
“Reviewing courts must be influenced by feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds.”
In N. L. R. B. v. Ford Motor Co., 119 F.2d 326, at 330 (5 Cir. 1941), the court stated:
“Nothing in the statute, nothing in any of the decisions lends countenance to the view that Congress intended to make of the Circuit Courts of Appeals mere rubber stamps, mere perfunctory executors of the Board’s unrestrained will. They make the contrary quite clear. It is, therefore, for this court, in the performance of its function under the statute, to say not blindly but in the exercise of an informed discretion, first, whether the findings are supported by the evidence, and, second, whether the Board’s orders are appropriate under the statute.”
In the same vein, although in a case factually impertinent, the Supreme Court of the United States has used the following language:
“-* * * We have said that ‘this authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.’ We have said that the power to command affirmative action is remedial, not punitive. * * #
“In that view, it is not enough to justify the Board’s requirements to say that they would have the effect of deterring persons from violating the Act. That argument proves too much, for if such a deterrent effect is sufficient to sustain an order of the Board, it would be free to set up any system of penalties which it would deem adequate to that end.” 1
Next, as an additional “remedy,” the Board has ordered the Company to furnish the Union, at the Union’s request made within one year, a list of the names and addresses of all employees in its plants in North Carolina and South Carolina. This directive, in my view, could have but one principal objective, that is, to assist the Union in its organizing campaign to unionize the employees. Such is not an authorized function of the Board within the policy and intendment of the Act. In theory, at least, the Board acts in an impartial capacity, although it is charged with the duty to protect the rights of eligible employees to join a union if they so desire and to freely choose a bargaining representative without hindrance or interference.
My brothers order enforcement of this directive only with respect to lists of employees working at the' three plants involved in Stevens IV. I am not persuaded that the Board has authority to order the Company to furnish such lists except, perhaps, as in N. L. R. B. v. Hanes Hosiery, 384 F.2d 188 (4 Cir. 1967), where this court required the production of a list of employees eligible *1030to vote in a scheduled certification election.
We cannot assume that every employee in the plants involved in Stevens IV desires to join a labor union. On the contrary, there are undoubtedly many who have no such desire or intention. Those who favor unionization seem to have no difficulty in spreading the word among vast numbers of employees who comprise the working force in a given plant that an organizing campaign is under way. Experience teaches that employees, who favor the union quickly disseminate information, contact their fellow employees, have a plentiful supply of union membership cards ready for signature, solicit members, obtain recruits, invite and urge attendance at union meetings, etc. The news of the campaign spreads like wildfire. Each employee is entitled to his own opinion without being unduly pressured by either side. Those who are opposed to the movement are entitled to be shielded and protected against efforts of trained, professional organizers to personally contact them in the privacy of their homes, to annoy and harass them by repeated telephone calls, personal letters, and in other conceivable ways during a heated campaign for union support. The employer’ should not be required to expose its employees to such procedures which are ofttimes annoying, embarrassing and, in many instances, actually engender ill feeling and strife between and among those employees who favor the union and those who do not.
These lists of employees are the property of the Company; they are private records required to be kept by the employer and without which it could not successfully operate. I would deny enforcement of this directive even as modified by the majority.
Except in the respects hereinbefore indicated I join in the opinion prepared for the court by Judge Butzner.
. Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, at pages 11 and 12, 61 S.Ct. 77, at page 79, 85 L.Ed. 6.