concurring and dissenting.
I agree with the conclusion of the majority that the issues before us are not moot and that bargaining would not be futile. I further agree that there is substantial evidence to support the findings of the Board that Vitek committed an unfair labor practice when it refused to bargain with the Union.
With respect to Part III of the majority opinion, it does appear that the mandate of this court in Vitek I was probably sufficiently explicit to require the Board to follow it or to seek its modification. However, I write separately on this issue to note my concern with a court mandate that directs the Board to proceed on remand by a representation proceeding, rather than by an unfair labor practice hearing, which the Board advises us is its usual procedure. As the Board explained, its choice of a hearing before an Administrative Law Judge in the context of an unfair labor practice proceeding rather than a representation proceeding avoided the duplication and delay that would have inevitably followed a reopened representation hearing. I believe that the choice of hearing to be used is among the many details of procedure that are vested in the considerable discretion of the Board.
Finally, with respect to Part V of the majority opinion, I believe that once we have concluded that the Board’s findings were supported by substantial evidence, we are obliged to enforce the bargaining order in full. While there may be a case in which the equities are so strong as to impel us to relieve a party of its obligation to bargain because of later circumstances, this case does not fit into that mold.
As the majority notes, this dispute between the parties has been pending for the almost six years since the election took place on June 7, 1979. It appears that Vitek has never really attempted to achieve a fruitful relationship with the Union. Instead it used every available procedure to challenge the Union’s success in the election, thereby postponing indefinitely its bargaining obligation. Finally, after the second rejection of its position before the Board and less than two weeks before its second argument in this court, Vitek chose to close the plant that was the subject of this dispute.
If we reward such behavior with a merely partial enforcement order, as does the majority, we will encourage similar conduct by other employers. I believe the appropriate response to such employer conduct was set forth as follows by this court:
We conclude that the fact that a respondent has terminated its business is irrelevant in a petition by the Board for immediate and full enforcement of an order____ Moreover, the courts should not recommit the order for consideration by the Board of respondent’s allegations of impossibility of compliance____ After the order is enforced by this court, the Board may determine in a subsequent proceeding whether compliance is fully possible. In any event, impossibility may be raised by respondent as a defense if a contempt action is brought ... by the Board.
NLRB v. Kostilnik, 405 F.2d 733, 735 (3d Cir.1969) (footnote and citations omitted).
In dealing with the somewhat analogous situation of employee turnover after the issuance of a bargaining order, this court pointedly avoided placing a premium on the continued litigation by an employer that is inevitable when a bargaining order can be chipped away by subsequent events. See Hedstrom Co. v. NLRB, 629 F.2d 305, 312 (3d Cir.1980) (in banc), cert. denied, 450 U.S. 996, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981).
Therefore, although I agree with the majority that we should enforce the Board’s order insofar as it requires bargaining as to the effects of the closing, I would have gone further and enforced the entire order, leaving it to Vitek to utilize the available administrative compliance procedure to explain and/or excuse its failure to comply.