dissenting:
The majority holds the petitioner guilty of several infractions of the National Labor Relations Act, specifically sections 8(a)(1), (3) and (5). I have no quarrel with the opinion of the Court insofar as it affirms the findings of fact and conclusions of law of the Administrative Law Judge (ALJ) with respect to employer misconduct. However, I cannot accept the Board’s imposition of an order requiring petitioner to bargain with a union, such as the respondent, which has failed in two separate election campaigns. In this solicitude for the Union, the majority and the Board forsake the outstanding exaction of this Circuit that such an order have a substantial and demonstrable basis in the evidence. Because the majority explicitly ignores this demand, I dissent.
In N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) the Supreme Court considered the propriety of bargaining orders in three situations. The primary consideration was of those “exceptional” cases marked by “outrageous” or “pervasive” unfair labor practices, regardless of whether the union ever has garnered majority sentiment. Bargaining orders clearly are fitting in those instances because infractions of this gravity “are of ‘such a nature that their coercive effects cannot be eliminated by the application of traditional remedies with the result that a fair and reliable election cannot be had.’ ” Id. 395 U.S. at 614, 89 S.Ct. at 1940, quoting N. L. R. B. v. Logan Packing Co., 386 F.2d 562, 570 (4th Cir. 1967). Just as clearly, the Court further concluded that bargaining orders are unsuitable in situations marked by minor, relatively insignificant disobedience having an insignificant effect on elections. “There is no per se rule that the commission of any unfair practice will automatically result in a § 8(a)(5) violation and the issuance of an order to bargain.” Id. 395 U.S. at 615, 89 S.Ct. at 1940. It is the middle position — the so-called category II — which controls here.
In the last-mentioned situation, where the employer has committed “less pervasive [unfair labor] practices which still have the tendency to undermine majority strength and impede . .. election processes,” the Board is still entitled, in its discretion, to issue a bargaining order provided that the union at one time had a majority. Id. 395 U.S. at 614, 89 S.Ct. 1940. The Court stressed that, in the exercise of this discretion, “effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior.” Id. Thus the Board must review the extent of past employer misconduct, its effect on elections, and the likelihood of recurrence in determining whether as extraordinary a remedy as a bargaining order is called for.
The General Counsel and the Union each defends on the naked assertion that substantial evidence justifies the order. The Court majority would also sustain the order, but in this it misconstrues the breadth of the Board’s discretion.
We have had occasion to gauge the Board’s issuance vel non of a bargaining order by the criterion of Gissel. In N. L. R. B. v. Appletree Chevrolet, Inc., 608 F.2d 988 (4th Cir. 1979), we spoke to the standards the Board must meet in resolving the contentions pro and con. Particularly, the Court emphasized that an election, not a bargaining order, remained the traditional, as well as the preferred, method for choosing the employees’ agent. Thus the Board may not so command simply upon its finding an employer guilty of unfair labor practices. Id. at 996-97. It is the constant obligation of the Board to explore the efficacy of the common remedies, explain why they would be ineffectual, and assess in *1146detail what future misconduct, if any, could be anticipated.
This recital of the essential analysis was amplified in our second decision in N. L. R. B. v. Appletree Chevrolet, Inc., 671 F.2d 838 (4th Cir. 1982). There we reiterated that the Board should “make findings sufficient to establish . .. the continuing effects of the employer’s misconduct and the ineffectiveness of the usual remedies .... ” Id. at 841.
Even recently, in N. L. R. B. v. Maidsville Coal Company, Inc., 693 F.2d 1119 (4th Cir., 1982), this Court bore down on the principle that “before a bargaining order may issue, the Board must demonstrate, with particularity, why traditional remedies will not protect employees’ rights under § 7 of the Act.” Id. at 1123.
As the petitioner accurately notes, neither the ALJ nor the Board endeavored to explain why a bargaining order would be the appropriate remedy. The Board fails to discuss other remedies and neglects to say what now prevents a fair election. Clearly, the Board has not borne its burden under Gissel and Appletree Chevrolet. Accordingly, its bargaining order should be refused enforcement.