(dissenting) :
I respectfully dissent.
The majority bases its decision to deny enforcement on two alternative grounds. First it holds the Board erred in finding that Canton violated § 8(a)(5) of the Act by refusing to bargain with Local 639 in April, 1968. Second, it rules that whether or not the original 8(a) (5) finding was correct, the Board erred in reaffirming- the validity of its bargaining order in the face of evidence that Local 639 had lost all employee support by 1969.
I am not persuaded that the majority has correctly analyzed the relevant facts or applied the proper law in reaching the conclusions that it has.
Initially I must indicate that under all the circumstances of this case I believe it inappropriate for this Court to review *843the Board’s finding that an 8(a) (5) violation was committed by Canton. Though Canton challenged the Trial Examiner’s finding on this point before the Board, it has not raised any question as to the accuracy of that finding before us, either in its brief or on oral argument. It has instead argued that events occurring subsequent to the issuance of the Board’s decision and bargaining order make enforcement of that order improper at this time. Such a posture in this Court strongly indicates abandonment of any challenge to the correctness of the finding that an unfair labor practice had, in fact, been committed by Canton.
Where, on a petition for enforcement, an employer has failed to challenge an unfair labor practice charge on the merits, but has instead raised other objections to the enforcement of the resulting Board order, this Court has consistently refused to review the Board’s finding as to the existence of the violation itself. See N.L.R.B. v. Tennessee Packers, Inc. Frosty Morn Division, 344 F.2d 948 (6th Cir. 1965); N.L.R.B. v. Kentucky Utilities Co., 182 F.2d 810, 814 (6th Cir. 1950); cf. Mid-Southern Foundation v. Commissioner of Internal Revenue, 262 F.2d 134, 139 (6th Cir. 1958) cert. denied, 359 U.S. 991, 79 S.Ct. 1120, 3 L.Ed. 2d 979 (1959); Viles v. Commissioner of Internal Revenue 233 F.2d 376, 379 (6th Cir. 1956).
Application of this rule of abandonment is particularly appropriate here where failure to apply it forces the Court to consider difficult and relatively unexplored questions of labor law without the guidance which briefs on the issue might be expected to provide.
The majority finds that a § 8(a) (5) violation was not proven because general counsel failed to establish that Local 639 had the support of a majority of Canton’s employees at the time of the April 1968 refusal to bargain. General counsel introduced evidence that Local 89 of the Sign Display and Pictorial Artists International had, prior to February, 1966 been acknowledged by all parties to be the majority representative of Canton’s employees.1 It was also shown that pursuant to a notice sent to all 35 Local 89 members (including Canton’s five employees) an election was held among the Union’s membership to determine whether or not a merger with Local 639 should be effected. By a 13-2 vote the Local 89 members approved the merger in February, 1966. As the majority correctly notes, the identity of the voters is not known and available documents and testimony make it impossible to determine whether a majority of Canton’s unit employees (all members of Local 89) voted in favor of the merger.
Normally there is a presumption of continuing majority status for a union and such presumption is not destroyed when a proper merger of local unions takes place. See Union Carbide & Carbon Corp. v. N.L.R.B., 244 F.2d 672 (6th Cir. 1957); Retail Clerks International Association v. N.L.R.B., 125 U.S.App.D. C. 389, 373 F.2d 655, 657 (1967). In declining to apply that presumption here, where the Union membership at large has voted for a merger, the majority is necessarily holding that a merger between two local unions affiliated with the same International properly preserves the representative status of the constituent locals only where each bargaining unit represented by the locals holds separate elections on the merger issue and separately approves the merger.
The majority offers no relevant authority to support this position, nor does it offer any compelling reasons why we should reject the Board’s apparent view that the opportunity for full participation by all unit members in a general merger vote is sufficient to warrant con*844tinued representation status for the newly created Local. See Retail Clerks International v. N.L.R.B., supra.
The only case cited by the majority to justify the heavy burden it would place upon merging unions is Dickey v. N.L.R.B., 217 F.2d 652 (6th Cir. 1954). That case is easily distinguishable from the present one. In Dickey two different International Unions were merged without any vote at all. Under those circumstances this court refused to find that workers who had originally voted for representation by the Blacksmith’s Union could be presumed to have acquiesced in a merger making a union dominated by Boilermakers their authorized bargaining representative. The Court of Appeals for the District of Columbia had no difficulty in distinguishing Dickey when faced with a situation remarkably similar to our own. Retail Clerks Internation v. N.L.R.B., supra.
That D.C. Circuit case supplies direct support for the position apparently adopted by the Board here and suggests that a more careful consideration of the rule of law set out by the majority is in order. In Retail Clerks International the Court of Appeals enforced a bargaining order growing out of a § 8(a) (5) violation. It rejected the Company’s defense that mergers had destroyed the presumption of continuing union majority status, although there, as here, the merging union represented employees of more than one employer and no showing had been made that a majority of the workers in the individual bargaining units had separately approved the merger, 373 F.2d at 657; see also findings of fact made by the Trial Examiner and adopted by the Board and the Court of Appeals, 154 N.L.R.B. 1197 at 1251 (1965).
While I do not suggest that the prerequisites for a valid merger and carryover of bargaining representative status set out by the majority are necessarily incorrect, I do have doubts about their wisdom, especially in light of the contrary policy implicitly supported by the expert body, the National Labor Relations Board. I believe it inappropriate to reach the difficult issue posed by the merger questions and to establish a rule of law for this Circuit when the Company has abandoned its challenge to the Board’s findings on the matter. See N.L.R.B. v. Tennessee Packers; N.L.R.B. v. Kentucky Utilities Co., supra.
Even overlooking Canton’s failure to attack the Board’s finding that a § 8(a) (5) violation had been committed and considering that finding on its merits, I believe there is substantial evidence on the record as a whole to support the Board’s decision.
Certainly if the view of the merger-representation question put forth by the D.C. Circuit in Retail Clerks International is accepted, Local 639 adequately established its majority status. Even apart from the merger, however, I believe that the evidence presented to the Board demonstrates that Local 639 had such status at the time of the April, 1968 refusal to bargain and that Canton was aware of such status.
The Supreme Court has recognized that a union can establish majority status “by other means [than Board supervised elections] under the unfair labor practice provision of § 8(a) (5) — by showing convincing support, for instance, by a union called strike or strike vote. .” NLRB v. Gissel Packing Co., 395 U.S. 575, 597, 89 S.Ct. 1918, 1930, 23 L.Ed.2d 547 (1969). Here every member of the unit went out on strike when such strike was called by Local 639.2 Contrary to the majority’s suggestion such support has itself been adequate to demonstrate representative status. See, for example N.L.R.B. v. Shurett, 314 F. 2d 43 (5th Cir. 1963) ; cf. N.L.R.B. v. Gissel Packing Co., supra. Here, however, additional facts make even clearer the union’s representative position. All employees paid dues to Local 639 after the merger with Local 89 was accom*845plished. The majority terms it a “fair inference” that these payments, continued for over a year and a half, were merely “routine,” given the union shop arrangement in effect. That may be, but this Court may not choose between two reasonable inferences. N.L.R.B. v. Challenge-Cook, 374 F.2d 147, 152 (6th Cir. 1967). The Board’s inference that the continuation of dues payments represented a show of allegiance to Local 639 was a reasonable one.
Canton itself treated Local 639 as the lawful successor to Local 89 and majority representative at all times prior to the April, 1968 refusal to bargain. Without any employee opposition whatever it dealt with grievances raised by Local 639, discussed proposed new contract terms with that Local and informed the Union of routine personnel changes. In opposing a certification election for a proposed new multi-employer unit, Canton wrote the National Labor Relations Board admitting that “We recognize Local 639 and the International.”
Canton’s conduct cannot, as the majority correctly notes, be used by a fact finder to create the requisite support for the union where such support did not exist. Canton’s open dealings with the Union in the two years preceding the Company’s refusal to bargain and the absence of any employee opposition to such dealings, however, provide persuasive confirmation of the other evidence pointing toward the existence of majority support.
I reiterate my conviction that the Board’s findings of a § 8(a) (5) violation is not properly before this Court. Even assuming it appropriate to consider such question, however, it is my belief that substantial evidence on the record as a whole supports the Board’s findings that Local 639 was the majority representative of Canton’s employees in April, 1968 and that the Company’s refusal to bargain with the Union violated § 8(a) (5) of the Act.
The second ground relied upon by the majority in denying enforcement is that the Union’s admitted loss of majority status in 1969 ended any bargaining obligation Canton may have had — even if the Board’s issuance of a bargaining order was initially correct. This issue was properly before us.
The majority recognizes, as it must, the long-established proposition that loss of majority status subsequent to the commission of an unfair labor practice does not itself bar enforcement of a bargaining order. See Franks Bros. v. N.L.R.B., 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944); N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 70 S.Ct. 833, 94 L.Ed. 1067 (1950); N.L.R.B. v. Warren Company, 350 U.S. 107, 76 S.Ct. 185, 100 L.Ed. 96; N.L.R.B. v. Lynair, Inc., 380 F.2d 286 (6th Cir. 1967); G.P.D., Inc. v. N.L.R.B., 430 F.2d 963 (6th Cir. 1970) cert. denied, 401 U.S. 974, 91 S.Ct. 1193, 28 L.Ed.2d 323 (1971). It concludes that the rule is inapplicable here for a number of reasons, each of which I shall consider.
First, the majority places great stress on the need for the Union’s original representative status to be demonstrated by an election or “valid card count” if the Frank Bros, rule is to be applied. These are not the only acceptable means of demonstrating majority support. See Gissel, supra. As I have indicated, I believe Local 639 has properly been shown to be the representative of Canton’s employees as of April, 1968.
The majority also seeks to distinguish Frank Bros, and the cases which follow it on the grounds that all of those decisions involved employers with longstanding and widespread anti-union policies, a circumstance absent here in the majority’s view. No case dealing with the Frank Bros, rule has ever specifically required the presence of such pattern or evaluated the recurrent nature of the unfair labor practices in question so as to suggest that a certain level of repetitiveness was required before the Franks rule could be appropriately applied. In several of the cases following the rule there is little or no evidence of any long-term anti-union practices. The majority offers no explanation of why such a pat*846tern of previous anti-union conduct should be required before the Franks rule is to be applied. This omission is significant, for I believe that such an explanation cannot be supplied. The Franks rule is designed to prevent “employers [from] profit[ing] from their own wrongful refusal to bargain.” Frank Bros. v. N.L.R.B., supra, 321 U.S. at 704, 64 S.Ct. at 818. The employer profits from his own wrongdoing and so encourages further misconduct by other employers whether he has followed a consistent anti-union policy or whether his bad faith refusal to bargain is part of a newly formed design.
The only potentially persuasive objection to the imposition of a bargaining order in the Frank Bros, type situation is the fear that the present majority of unit employees will be denied a total free choice as to bargaining representative for the duration of the bargaining order. This would seem to be the underlying rationale of the majority’s stress on the present absence of any union members from the ranks of Canton’s employees.3
The Supreme Court has considered such objection in general in Frank Bros. and similar cases and rejected it, holding that the temporary nature of the bargaining order merely insures that a “bargaining relationship once rightfully established [is] given a fair chance to succeed.” Frank Bros., supra at 705-706, 64 S.Ct. at 819. It stressed that after the expiration of a “reasonable period” (now usually held to be one year) employees could seek to change their representative or to dispense with a representative entirely. It thus found the imposition on employee rights to be within acceptable limits.
This conclusion is equally applicable whether the union in question falls short of majority status by a single vote or as here, has lost all its original adherents. In each case the will of the present majority of workers is temporarily set aside in the interests of their ultimate freedom of choice and the deterrence of future employer misconduct. In neither case is the union likely to be able to impose any obligation on individual employees unless it can convince a skeptical employer that its representation efforts have won such popularity among those employees as to make expedient the signing of a collective bargaining agreement. In each case the union is allowed but a limited time to achieve employee support and restore itself to the position it held before the employer’s commission of the unfair labor practices; and in both cases the employees may, at the end of that period, seek to initiate proceedings which will remove the union as the bargaining representative. See 29 U.S.C. § 159(c).
In G.P.D., Inc. v. N.L.R.B., 430 F.2d 963 (6th Cir. 1970) this Court recognized that the actual number of union adherents present in the unit at the time enforcement of a bargaining order is sought is inconsequential. There we enforced a bargaining order where but one of eight original union men remained in the unit. In a number of other cases where all union adherents had been replaced at the time enforcement was sought, other courts have granted the petition for enforcement. N.L.R.B. v. Andrew Jergens Co., 175 F.2d 130, 134 (9th Cir. 1949) cert. denied 338 U.S. 827, 70 S.Ct. 76, 94 L.Ed. 503, reh. den. 338 U.S. 882, 70 S.Ct. 156, 94 L.Ed. 541 (1949); Sakrete of Northern California, Inc. v. N.L.R.B., 332 F.2d 902. (9th Cir. 1964) cert. den. 379 U.S. 961, 85 S.Ct. 649, 13 L.Ed.2d 556, reh. den. 380 U.S. 926, 85 S.Ct. 883, 13 L.Ed.2d 814; N.L.R.B. v. Ozark Motor Lines, 403 F.2d 356 (8th Cir. 1968).
*847The majority relies heavily on the decisions of this Court in Clark’s Gamble Corp. v. N.L.R.B., 407 F.2d 199 (6th Cir. 1969) vac. 396 U.S. 23, 90 S.Ct. 197, 24 L.Ed.2d 143 (1969), on rent 422 F.2d 845 (6th Cir. 1970), cert. denied 400 U.S. 868, 91 S.Ct. 100, 27 L.Ed.2d 108 to support its position that the special circumstances of this case make enforcement inappropriate here notwithstanding Frank Bros, and similar cases.
I believe that our decisions in Clark’s Gamble turned on the peculiar facts of that case;4 it was my impression that subsequent decisions of this Court intended to narrowly limit the applicability of Clark’s Gamble. See G.P.D., Inc. v. N.L.R.B., 430 F.2d 963, 964 (6th Cir. 1970) cert. denied 401 U.S. 974, 91 S.Ct. 1193, 28 L.Ed.2d 323; N.L.R.B. v. Lou DeYoung’s Market Basket, 430 F.2d 912, 915 (6th Cir. 1970). To the extent that the decision in Clark’s Gamble is extended to cover the present situation I believe that it is in conflict with Frank Bros., N.L.R.B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), and other Supreme Court cases and cannot control our decision.5
In general the Board’s determination of the appropriate remedy for violations of the Act is entitled to “special respect” from the Courts. N.L.R.B. v. Mink Dayton, Inc., 426 F.2d 255, 256 (6th Cir. 1970) cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 59 (1970); cf. N.L.R.B. v. Gissel Packing Co., 395 U.S. at 612 n. 32, 89 S.Ct. 1918 (1969). This is especially true when, as here, the Board has specifically reaffirmed its faith in the correctness of the remedy after consideration of events occurring subsequent to the time the order was originally issued.
The circumstances of this case do not seem to me to allow the Court to reject the Board’s finding that a violation of the Act occurred and that a bargaining order was and is the most effective means of dealing with Canton’s refusal to bargain. Accordingly I would enforce the Board’s order.
. Canton never disputed Local 89’s majority status at any point in the course of these proceedings. There was no reason for general counsel to introduce evidence as to the manner in which Local 89 first demonstrated its majority support. The suggestion offered at several points in the majority opinion, that Local 89 may itself not have been a proper employee representative is misleading.
. Canton Vice President Franta, himself a union member, did go out on strike, but returned to work after one day; all other employees remained on strike.
. The majority also suggests that Frank and similar cases may be distinguished because here and not in those cases the union was “entirely without members . . . at the time of the refusal to bargain.” This distinction fails because it is based on a clear misreading of the facts of the present case which show that all Canton unit employees were Union members at the time of the bargaining refusal.
. In Clark’s Gamble the Court denied enforcement to a bargaining order growing out of an alleged 8(a) (1) violation, the proof of which violation was so weak as to lead this Court to indicate that it would not have found a violation were the matter before it de novo. 407 F.2d 199, 201. A delay of over 34 months, traceable solely to administrative difficulties within the N.L.R.B. allowed a situation to develop where substantial employee turnover — and loss of union majority status —seemed likely.
The mere fact that the violation in question was an 8(a) (1) rather than an 8(a) (5) refusal to bargain (for which a bargaining order has been held to be a uniquely appropriate remedy, N.L.R.B. v. Flomatic Corp., 347 F.2d 74, 79 (2d Cir. 1965)) may explain the Court’s reluctance to enforce the Board’s order.
. In Katz, the Supreme Court noted:
“The Company urges that, because of the lapse of time between the occurrence of the unfair labor practices and the Board’s final decision and order, and because the union was repudiated by the employees subsequently to the events recounted in this opinion, enforcement should be either denied altogether or conditioned on the holding of a new election to determine whether the union is still the employees’ choice of a bargaining representative. The argument has no merit. Franks Bros. Co. v. National Labor Relations Board, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020; National Labor Relations Board v. P. Lorillard Co., 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380; National Labor Relations Board v. Mexia Textile Mills, Inc., 339 U.S. 563, 568, 70 S.Ct. 833, 94 L.Ed. 1067. Inordinate delay in any case is regrettable, but Congress has introduced no time limitation into the Act except that in § 10(b) requiring that a complaint be filed within six months of the unfair labor practice charged” 369 U.S. 736, 748, n. 16, 82 S.Ct. 1107, 1114.