concurring in part.
I cannot agree, as the Court seems to say and the Labor Board found,1 that there were two unfair practices in this case, (1) refusal to bargain, contrary to § 8 (5); and (2) interference, restraint and coercion of employees in violation of § 8 (1). I think only one unfair labor practice was shown, namely, refusal to bargain; and for that reason I think the Board’s order must be modified to eliminate the restraints based on its finding of violation *394of § 8 (1), as the Express Publishing Company case, 312 U. S. 426, requires in such a situation.
1 am unable to understand the majority’s application of that case to a situation in which the Board has found there were two different and substantial violations of the Act. The Court does not hold to the contrary or rule that either finding was unsupported by the evidence. Rather it seems to approve and sustain both. Yet it modifies, as I think ambiguously,2 the relief which the Board found appropriate to prevent a repetition of the interference, coercion and restraint it determined had been inflicted upon the employees, in addition to the refusal to bargain. The Express Publishing case covers no such situation. It was limited to one where the Board had imposed both types of restraint upon a finding only of refusal to bargain.3
It is apposite to inquire, therefore, whether that case has now been expanded to forbid the Board to impose *395both types of restraint where it has found both kinds of violation and neither finding, is overturned. If so, I think the result squarely conflicts with repeated decisions, reflected in the language of the opinion in the Express Publishing case itself, that “having found the acts which constitute the unfair labor practice the Board is free to restrain the practice and other like or related unlawful acts.” 312 U. S. 426, 436.4
It is important for the administration of the Act to know whether the Board is to be free to adapt the remedy to fit the evil it has found to exist, as the statute commands, § 10 (c); or, on the contrary, its remedy thus adapted may be stricken down or modified although the finding which justifies it is approved. That, in my judgment, goes beyond correction of abuse of the Board’s discretion and substitutes the Court’s judgment for the Board’s in devising the appropriate remedy.
For this reason it becomes important to state the different reasons why I think the order should be modified to eliminate any restraint based upon the finding of violation of § 8 (1). It is not because this Court has power or discretion, when there are two substantial and different unfair practices, to modify the Board’s order by restricting the relief to what is appropriate to prevent *396repeating only one or by other modification to eliminate relief appropriately designed by the Board to prevent repetition of unfair practices it has found to exist. It is because, in my opinion, there was only one unfair practice and that was the refusal to bargain. Hence I think the Express Publishing case exactly applies, and does so without necessity for extending the scope of its ruling as the Court’s application appears to do.
In my judgment, an employer does not commit an unfair labor practice when he does no more than exercise rights secured by the Federal Constitution and laws, including the Wagner Act.5 That Act does not put him to the choice of giving up his rights or exercising them on pain of being found guilty of unfair practice. Apart from the evidence relating to refusal to bargain under § 8 (5), there was nothing, in my opinion, which went beyond what was necessary to exercise or preserve the employer’s rights secured by law. The application to the War Labor Board for approval of the proposed weekly increase of $2.00 for all the St. Louis employees, except those represented by recognized unions, was made August 31, 1943, shortly after the company had declined to bargain with the union in order to preserve its right to contest appropriateness of the unit. Announcements of this action over the public address system followed on September 1 and 11, with one also in “Store Chat” on September 3.
In the background of the facts, I do not think these acts amounted to more than the exercise of legal rights secured to the employer by the Wagner Act, the Stabilization Act and the First Amendment. They constituted neither a wage increase nor an offer of one. There was no more than taking steps to secure official approval, required in advance by the Stabilization Act, to make an increase, or *397tender one, at some uncertain future date, possibly never to arrive. The application was merely a necessary preliminary step to later action, which might or might not materialize, in the nature of dealing with employees or offering to do so, whether directly or through their bargaining representatives.
The case therefore is not Medo,6 in spite of the Board’s repeated and insistent argument to the contrary. There the employer actually dealt with the employees, not only negotiating but contracting with them. So in J. I. Case Co. v. Labor Board, 321 U. S. 332. Here there was neither negotiation nor contracting. There was nothing the employer could offer at that time or the employees then could accept. There was only preparatory action looking to the possibility of later negotiations, and announcement of this action to the employees.
If the employer had the right to put itself legally in position to negotiate, either with the employees or with the union, it also had the right to state what it had done. The effect of the Board’s decision, and now apparently of the Court’s, is to rule that the Wagner Act so circumscribes an employer that he cannot take the necessary preliminary steps, in this case required by law, to place himself in position to undertake bargaining with his employees, whether directly or through their selected representatives. It is further to hold that if he takes such steps, without having first secured the union’s permission, he must keep the fact to himself and dare not disclose to his employees what is to all others a matter of public record. This goes beyond protecting the rights of employees. It gives to the union a veto on management, not only as respects negotiations for terms of employment but for putting the employer in position to negotiate. No case here has gone so far and, in my judgment, the Wagner Act does not contemplate that any should do so.
*398Other facts bear out this conclusion. One is that the Board made no finding that the employer’s action was taken with intent to interfere with, restrain or coerce the employees in respect to their rights. Naturally enough there was no such finding. The application affected some 4,500 employees. The unit involved only about 30. It is hardly conceivable that the employer would have taken this step in relation to so many for the purpose of coercing, interfering with or restraining 30. There is lacking, therefore, any showing or finding of intent, a factor the courts have considered important in concluding from otherwise innocent or equivocal facts that unfair practice may exist;7 and one which in this case the Court apparently makes crucial to determine whether relief relevant to a finding of unfair practice may be sustained. The Board found only that the employer’s “unilateral action,” in making the application to the War Labor Board and in announcing this fact, “had the effect of depriving the Union of credit which normally would accrue to it, and of nullifying its efficacy as a bargaining agent.” (Emphasis added.)
Even were this true, it has not heretofore been held that the Wagner Act forbids an employer to take any preliminary step whatever looking toward dealing with his. employees in the future which, though not intended to discredit the union, may have the effect to prevent it from obtaining some credit for proposing possible future action which in fact the employer has proposed. Nothing in the Act requires an employer to maintain a union’s prestige or to give it credit for originating all proposals *399which may have some future effect upon his relations with his employees. Section 8(1) forbids interference, coercion and restraint upon employees in the exercise of their rights, not the mere failure of the employer to magnify the union’s influence.
Moreover the Board made no finding, presumably because there is no evidence to sustain one, of particular and concrete facts showing that the employer’s so-called “unilateral action” adversely affected the union’s status among its members or other employees.8 It only concluded that the action “reasonably [may] be said to have undermined the Union . . . and to have discouraged employees generally in their union affiliation.” Presumably, since no such effects were proved or found specifically, the basis for this conclusion was the Board’s “experience,” though this was not referred to in the order or the report on which it was founded. That foundation was not sufficient, in my judgment, in the absence of proof of more unequivocal acts of unfair practice, of any finding of intent to interfere, restrain or coerce, and of any showing whatever of specific discouraging or undermining effects. Something more than supposition should underlie a conclusion which supports a finding of unfair practice.
Nor did the employer ignore the union’s possibly legitimate status or its right to have a voice in the matter of the increase, if approval by the War Labor Board should materialize. The application set forth the essential facts with reference to the existing dispute concerning appropriateness of the unit, the employer’s intention to litigate the question whenever it might, its nonrecognition of the *400union pending the obtaining of a decision, and its purpose for these reasons to include the affected employees in the application. But the application went on to say that if the union should object to the increase, for Departments 280 and 281, the Board should consider it as amended to exclude those employees.9
This hardly furnishes ground for concluding that the employer was attempting to “short-circuit” the union, undermine it, or discredit it with the employees. It explicitly recognized that the union, if rightly designated and certified, was entitled to say whether or not the proposed change in pay should become effective. Actually, that right was conceded, regardless of the ultimate outcome of the issue on validity of the certification.10 Clearly, in view of this concession, there was no effort either to contract with the employees directly or to deal with them, over the union’s head, about the increase. Whether or not it should become effective as to them was left, not to the employees themselves, but to the sole and exclusive judgment of the union. There was therefore no semblance of the short-circuiting or direct dealing with employees which was present in both the Medo and the J. I. Case decisions.
Possibly for this reason the Board is driven back to its “undermining” contention. The company, it says, by including these employees, “put the union on the spot,” so that it had no real choice. The argument shows concern for the union’s “spot,” but gives no recognition to the employer’s. The Board does not urge that the company should have excluded these employees from the general application, with good reason. Had this been done, *401obviously the company would have laid itself open to a charge and a finding of unfair practice under § 8 (1). The Board is unwilling, apparently, to put the employer in that dilemma. Cf. Medo Photo Supply Corp. v. Labor Board, 321 U. S. 678, 699. It does not say, though the Court does by way of dictum, that excluding these employees from the application would not have been an unfair practice. The Board says the employer’s only way out was to consult the union before making the application.
This can only mean that the employer was compelled to ask the union’s permission to include these employees; in short, that the union had the right under the Wagner Act to veto any action taken by the employer to obtain the necessary legal authority to propose any increase for them, whether directly or through the union. I do not think the Wagner Act confers such a power on the union. Nor did the Stabilization Act or the regulations in effect pursuant to its provisions do so.11 Moreover, the employer asserts that it could not refer the matter to the union without surrendering the very rights it was seeking to preserve. This, it says, would have amounted to recog*402nition and would have foreclosed it later from securing review under the terms of § 10 upon the question whether the unit was appropriate.
Whether or not that is true, there was certainly good reason to believe it so. The right to review is given in terms only as an incident of an unfair practice proceeding. § 10; cf. American Federation of Labor v. Labor Board, 308 U. S. 401; Inland Empire Council v. Millis, 325 U. S. 697. In this state of the law, the company’s only certain remedy was to withhold recognition until the matter could be determined. Had it recognized the union, by seeking its permission to include the affected employees, there would have been no factual or legal basis for the only proceedings by which review was assured; and, in order to secure it, the company then would have been forced to commit some other act of unfair practice or to take its chance upon some other doubtful remedy. In either event, it would have been confronted with its prior action of dealing with the union and the possibilities this would present either for applying the broad doctrine of estoppel or for occupying the inconsistent, not to say indefensible, position of having recognized the union and then having deliberately repudiated the recognition.
I do not think the Wagner Act was intended to put the employer in such a dilemma. It has been settled that he takes the risk of his error when he mistakenly judges that the unit is not appropriate or for other reason that the duly selected or cértified union is not entitled to recognition.12 As to that, the employer’s choice was hard, made so by the very state of the law. Had the law been that *403certification was none of the company’s business and that the company had no right of review, it would have known its rights and its liabilities. That was not and is not the law. The company was told expressly that it had a right of review, but only in an unfair practice proceeding.13 It was therefore put to the choice, by the statute’s terms, of foregoing review or having it by an act of unfair practice. Hence the finding of unfair practice by refusal to bargain must be sustained. But, in taking this risk, the employer did no more than it was compelled by law to do to save its rights under the Wagner Act and to avoid being found guilty, by virtue of some alternative course of conduct relating to the application, of further unfair practices.
I do not agree, therefore, that this necessitous action amounted to an additional unfair practice, in the nature of interference, coercion or restraint of employees’ rights, whether or not the finding that it was is sufficient to sustain an independent provision for relief.
A word remains to be said concerning the announcements. As has been stated, if the company had the right to make the application as it did, it also had the right to announce that fact to the public and to the employees, so long as in doing this it did not do so with intent or in a manner to violate the Act. I find nothing in the announcements to justify a finding they were made with this purpose or effect, and there is no finding to the contrary.14 They were, in my judgment, no more than an *404exercise of the employer’s rights of free speech and a free press, secured by the First Amendment. Cf. Labor Board v. Virginia Electric & Power Co., 314 U. S. 469; Labor Board v. Ford Motor Co., 114 F. 2d 905; Labor Board v. American Tube Bending Co., 134 F. 2d 993; compare Texas & N. O. R. Co. v. Brotherhood, 281 U. S. 548, 568.
It follows from my view of the case that the Board’s order should be modified by striking from it Paragraph 1 (b) together with the words “and (b)” from Paragraph 2 (b), and as so modified enforced. Accordingly, I think the judgment of the Court of Appeals, enforcing the Board’s order, should be modified in these respects and, as thus modified, affirmed.
The Chief Justice and Mr. Justice Frankfurter join in this opinion.The Board adopted the trial examiner’s intermediate report without change, the employer not having applied for oral argument. 53 N. L. R. B. 1366. After reviewing the evidence under the separate headings of “A. The refusal to bargain” and “B. Interference, restraint and coercion,” the report found as to the former that “on July 19, 1943, and at all times thereafter” the company had refused to bargain collectively with the union; as to the latter “that, by its unilateral action in seeking approval of its proposed wage adjustments,” and by later publicizing this action, it had “interfered with, restrained, and coerced its employees” in the exercise of the rights guaranteed in § 7. There were separate and independent conclusions of law based on these findings, to which the separate provisions of the order related.
The modification directed by the Court, if it is more than a change in the form of words used in Paragraph 1 (b) of the Board’s order, necessarily cuts down the substance of the order. But since the injunction will apply “to other interferences, in violation of § 8 (1) or otherwise, with the Council’s representation” of employees in Departments 280 and 281, and since violation of § 8 (1) includes interference, restraint or coercion of employees’ rights as guaranteed by § 7, it is difficult to understand in just what particulars the order has been modified. In the absence of more definite specification we must accept the Court’s modification as meaning that some substantial change from the order’s terms is intended.
Under the ruling the Board is not free to utilize § 8 (1) as a device for multiplying an unfair practice under § 8 (5), so that the single act of refusing to bargain may be made to justify an order forbidding not only that conduct but also the numerous types of unfair practice prohibited by the broad language of § 8 (1). The gist of the decision was that the Board cannot thus pile unfair practice on unfair practice, like presumption on presumption, for purposes of enforceable relief, notwithstanding the act of merely refusing to bargain may be held technically to violate both sections in view of the language of § 7. Labor Board v. Express Publishing Co., 312 U. S. 426, 433.
This Court has, in various contexts, declared that the particular means by which the effects of unfair labor practices are to be expunged is for the Board and not for the courts to determine. Virginia Electric & Power Co. v. Labor Board, 319 U. S. 533, 539; Labor Board v. Link-Belt Co., 311 U. S. 584, 600; International Association of Machinists v. Labor Board, 311 U. S. 72, 82. See Labor Board v. Bradford Dyeing Association, 310 U. S. 318, 342-343. And the Court has said that “the relation of remedy to policy is peculiarly a matter for administrative competence” and that “courts must not enter the allowable area of the Board’s discretion. . . Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 194. See also Regal Knitwear Co. v. Labor Board, 324 U. S. 9, 13.
The Wagner Act, designed to promote the public interest by securing employees’ rights, does so by appropriate remedies which also afford protections for the employer. See text at note 13.
Medo Photo Supply Corp. v. Labor Board, 321 U. S. 678.
See Montgomery Ward & Co. v. Labor Board, 107 F. 2d 555, 559; Labor Board v. Whittier Mills Co., 111 F. 2d 474, 478-479; Labor Board v. Elkland Leather Co., 114 F. 2d 221, 224; Labor Board v. Chicago Apparatus Co., 116 F. 2d 753, 756-757; Peter J. Schweitzer, Inc. v. Labor Board, 79 U. S. App. D. C. 178, 144 F. 2d 520, 522.
The general “finding” that the company’s action in making the application and publicizing it “interfered with, restrained, and coerced its employees,” 53 N. L. R. B. at 1371, rested on no more than the Board’s assertion that “it logically follows” that these acts “had the effect” of depriving the union of credit and “may ... be said to have undermined” it.
The Board’s brief states that the union objected and the War Labor Board accordingly eliminated the bushelmen from the application, citing In re May Dept. Stores Co., N. W. L. B. Case No. 7-6585 (unreported).
See note 11.
The regulations required that the application be signed “either (a) jointly by the employer and a duly recognized collective bargaining agency . . ., or (b) by the employer alone.” 4 War Labor Rep. xxxi, xxxiii-xxxiv, § III, 3. It was further required, in either case, that the application state whether or not there was “a duly recognized collective bargaining agency . . . which has not joined with the employer in the application.” If so, provision was made for the Wage and Hour Division to notify the organization and request it to inform the office of objections, if any, to action on the application. Cf. note 9. If none were made, the application would be acted on. If made, the matter was to be treated as a dispute and referred to the Conciliation Service of the Department of Labor.
It was apparently in compliance with this regulation that the application in this case set forth the representations concerning the nonrecognition of the union, the dispute, etc. The regulations were amended later to include either a recognized or a certified union. 9 War Labor Rep. xxxm; 8 Fed. Reg. 16678.
See, e. g., Labor Board v. Hearst Publications, 322 U. S. 111; Franks Bros. Co. v. Labor Board, 321 U. S. 702; Medo Photo Supply Corp. v. Labor Board, 321 U. S. 678; J. I. Case Co. v. Labor Board, 321 U. S. 332; Pittsburgh Plate Glass Co. v. Labor Board, 313 U. S. 146; Labor Board v. Bradford Dyeing Assn., 310 U. S. 318; National Licorice Co. v. Labor Board, 309 U. S. 350; cf. H. J. Heinz Co. v. Labor Board, 311 U. S. 514, 523 (employer bargained but refused to sign written contract).
The attenuated character of the right makes all the more essential that it not be whittled away or nullified by rulings which make its exercise more precarious than it is by the very conditions of its existence.
The mere fact that the announcements omitted specific reference to Departments 280 and 281 does not supply this element. Such a reference, if made, might have been construed, by its singling out of this unit for special treatment and thereby for invidious implication, as furnishing the very evidence of wrongful specific intent and effect which the Board has failed to find.