(dissenting):
On August 22, 1973, the United Steelworkers filed a petition with the Regional Office of the NLRB seeking an election at the new Regency plant of the American Can Company. Because a representative number of the anticipated employee complement at Regency had already been employed,1 American Can and the Steelworkers executed a Stipulation for Certification Upon Consent election agreement. The stipulated unit included “all production and maintenance employees” and did not exclude lithographers.2
The Board conducted the election on September 21, 1973, and the Steelworkers won, 84 to 0. On October 1, 1973, the Regional Office certified the Steelworkers as the representative of all the production and maintenance employees at the Regency plant. American Can and the Steelworkers have a nationwide collective bargaining contract which provides that all new plants organized by the Steelworkers are automatically covered under the master agreement. After the Steelworkers were certified by the Board as the collective bargaining representative at Regency, the master contract was applied to that plant.
The Board, relying on the doctrine of Midwest Piping and Supply Co., 63 N.L.R.B. 1060 (1945), held that, in contracting with the Steelworkers, American Can unlawfully assisted that union in violation of §§ 8(a)(1) and 8(a)(2) of the National Labor Relations *189Act. 29 U.S.C. §§ 158(a)(1), (2). My brothers feel that this does not create a new and broadly significant precedent. I cannot agree.
The majority say that the Midwest Piping doctrine, briefly summarized, requires an employer to withhold recognition when a real question concerning representation exists. This summary, I fear, is too brief. Under the Midwest Piping rule, an employer faced with claims from rival unions which give rise to a real question concernng representation may not recognize or ater into a contract with one of the unions “until its right to be recognized has finally been determined under the special procedures provided in the Act”, Novak Logging Co., 119 N.L.R.B. 1573, 1574 (1958), i. e., “unless and until the question concerning representation has been settled by the Board.” She a Chemical Corp., 121 N.L.R.B. 1027, 1029 (1958).3
In this case, the question concerning representation had been settled by the Board prior to the application of the Steelworkers’ contract to the Regency plant. The Steelworkers had won the Board election and had been certified. Although the Board, upon motion of the General Counsel, subsequently amended the certification issued to the Steelworkers so as to exclude lithographic production employees, this was done in the order on appeal, and thus long after application of the contract between the employer and the Steelworkers had been agreed upon.
The Board has the clear power and discretion to determine the number and boundaries of appropriate bargaining units. UAW v. NLRB, 231 F.2d 237, 243 (7th Cir.), cert. denied, 352 U.S. 908, 77 S.Ct. 146, 1 L.Ed.2d 117 (1956); NLRB v. Pittsburgh Plate Glass Co., 270 F.2d 167, 173 (4th Cir. 1959), cert. denied, 361 U.S. 943, 80 S.Ct. 407, 4 L.Ed.2d 363 (1960).4 This power was exercised in the instant case, and a bargaining unit was certified which included “all hourly rate production and maintenance employees employed by the employer at its Regency plant located on Pierson Avenue, Edison, N.J., but excluding office clerical employees, professional employees, confidential employees, managerial employees, watchmen, guards and supervisors as defined in the Act.” If this unit did not include lithographers, it is difficult to understand why the Board found it necessary to amend the certification so as to exclude them. A simple finding by the Board that they were not included would have been sufficient.5
Instead of holding that lithographers were not included within the certified unit, the Board held that they would not have been included had it been informed of ALA’s interest and claim. This, in my opinion, is the crux of the order sought to be enforced. Moreover, it is on this point that I find the Board’s determination to be completely without support in the record, since it is undisputed that the Board had knowledge of ALA’s claim prior to both the election and the certification. On the day pre*190ceding the election, an ALA representative hand delivered a letter to the Board’s Regional Office stating that ALA had an interest in the lithographers, and, on September 28, three days prior to the certification of the Steelworkers, an unfair labor charge was filed with the Board in which ALA specifically claimed that it was the “rightful collective bargaining representative” of the Regency lithographers.
I cannot concur with the majority in approving the Board’s efforts to make Mr. Ries the “fall guy” for the Board’s decision. The Board found that when one of its representatives telephoned Mr. Ries to ask if he knew of any interest which ALA had in the election, Mr. Ries “answered in the negative”. The testimony referred to is set forth in the margin;6 and, in fairness to Mr. Ries, I do not believe the Board’s sum-, mary of this testimony completely and accurately represents what he said.7
Moreover, it is not at all clear to me what the Board representative meant by the word “interest”. Thirty percent has long been the Board’s magic figure for establishing a prima facie showing of interest with respect to the duty to bargain. Linden Lumber Division v. NLRB, 419 U.S. 301, 309, 95 S.Ct. 429, 434, 42 L.Ed.2d 465, 471 (1974); NLRB v. J. I. Case Co., 201 F.2d 597, 598 (9th Cir. 1953); N.L.R.B. Statements of Procedure, § 101.18. Accordingly, the Board has held that a proposed intervenor who wishes to represent a different unit than the one petitioned for is required to make a thirty percent showing in the unit it seeks to represent. Southern Radio & Television Equipment Co., 107 N.L.R.B. 216, 217 (1953). While the Board holds that a showing of interest is an administrative matter not tied to percentages, Beneke Corp., 109 N.L.R.B. 1191 (1954), Mr. Ries should not have been expected to concede ALA any interest in the election where it had no contractual interest, where no ALA members were employed at Regency, and where the likelihood of future employment was, at best, conjectural. Heating and Cooling Contractors Ass’n, 115 N.L.R.B. 386 (1956).
The decision of the Board can be summed up in the language of its Fortieth Annual Report where, in reviewing the case at page 94, it said that “the mere expressed interest of one union in representing its unit people at a new plant was enough to raise the question concerning representation and thus preclude the employer from entering into a collective-bargaining agreement with another union covering the employees formerly represented by the first union at the old plant, even though the other union had just been certified by the Board as the collective-bargaining agent for all of the employees at the new plant.” This, in my view, carries the concept of “real question concerning representation” far beyond any prior decision on this point and is, indeed, a major expansion of the Midwest Piping doctrine.8 As counsel for the employer has *191aptly pointed out, neither ALA nor the Board has cited a single ease in which a real question concerning representation was found and judicially upheld where no person claimed to be represented was actually employed at the time.
It is unfortunate that the decision herein is reached by casting stones at Mr. Ries, because I cannot believe that he, or anyone else employed at American Can, was required to anticipate the Board’s decision and conclude that ALA had an interest in the election at Regency when it represented no one employed there. This case will be relied upon by the Board, not because of the role played by Mr. Ries, but as authority for the proposition that an “expressed interest” by a union is sufficient to create a real question concerning representation.
The majority’s solicitude for the lithographers is one which I share. However, the Midwest Piping doctrine, although commonly justified in terms of “free choice” and “coercion”, is really designed as a sort of Marquis of Queensbury rule for competing unions. See Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Har.L.Rev. 38, 119 (1964). ALA has not shown an entitlement to the benefit of such rule in this case. On September 20, the same Board representative who talked to Mr. Ries also called the ALA office and asked it to provide the Board with a showing of interest. ALA did nothing but, instead, permitted the Board to proceed with the election. In so far as the lithographers are concerned, if they are dissatisfied with the Steelworkers, they may opt out of the certified unit by a severance petition and election. NLRB v. Appleton Electric Co., 296 F.2d 202, 206 (7th Cir. 1961); Mallinckrodt Chemical Works, 162 N.L.R.B. 387 (1966). The Board’s order, which accomplishes this result by finding the employer guilty of an unfair labor practice, is, in my opinion, arbitrary, unwarranted and without any substantial support in the record. Universal Camera Corp. v. NLRB, 340 U.S. 471, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
I would refuse to enforce that portion of the order.
. The Board customarily holds that there is a proper employee representation where 30% of the projected work force has been employed and 50% of the job classifications are in existence. General Extrusion Co., 121 N.L.R.B. 1165 (1958); Arvey Corporation, 122 N.L.R.B. 1640 (1959).
. The petition filed by the Steelworkers specifically included lithographers in the proposed unit of production and maintenance employees.
. The courts generally have been more liberal than the Board in not requiring that an election precede recognition where there has been a clear demonstration of majority support for the recognized union. Playskool, Inc. v. NLRB, 477 F.2d 66, 70 (7th Cir. 1973). However, this Court has specifically approved the Midwest Piping principle on a number of occasions. See, e. g. NLRB v. Hudson Berlind Corp., 494 F.2d 1200, 1202 (2d Cir., cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974); NLRB v. Midtown Service Co., 425 F.2d 665 (2d Cir. 1970).
. Lithographers are not necessarily entitled to be treated as a separate unit for purposes of collective bargaining. Continental Can Co., 171 N.L.R.B. 798 (1968). Indeed, the Board has certified an overall production and maintenance unit including lithographers at eight separate plants of the employer American Can Company.
. I find inapplicable the majority’s discussion of accretion. Where employees fall into classifications already included within a unit and work within and are an integral part of such unit, they are included in the unit. Gillette Motor Transport, Inc., 137 N.L.R.B. 471 (1962). To prohibit the inclusion of employees in an appropriate unit, before a question of representation has been raised, is to refashion the statutory scheme. NLRB v. Appleton Electric Co., 296 F.2d 202, 206 (7th Cir. 1961).
. Q. Mr. Ries, do you recall receiving a phone conversation from Mrs. Phyllis Schectman the day before the election?
A. Yes.
Q. What did she say to you, what did you say to her?
A. She told me that she had just received a letter from the ALA, and she asked me if I personally knew of any interest on behalf of the ALA in the election, and I said, “No.”
Q. What did she say?
A. And I said that any of these transactions were handled by our Greenwich people, and I suggested she call Greenwich. She said, “Thank you very much,” and that was it.
Q. Do you know whether she did call Greenwich?
A. I don’t know.
(A 279-80).
. The proof shows that Lester Cooper, the employer’s attorney in Greenwich, had been representing the company in its dealing with the Board, not Mr. Ries, who was the supervisor of employee relations at the company’s Hudson plant.
. It may safely be predicted that, from this time forward, every employer who closes a plant and relocates will be met with a demand for continued recognition by each of his existing unions which will, under the Board’s interpretation of Midwest Piping, prevent recognition of another union at the new plant without a prior election, regardless of the strength of that union’s representation. Although this may *191comply with the Board’s desire for increased use of its election procedures, it is hardly conducive of tranquility and order in the relationship between management and labor.