(dissenting).
Despite the persuasive quality of the excellent opinion Judge BRENNAN has written for this court, I cannot agree to the basic conclusion that the Board’s order is supported by the evidence.
The trial examiner filed an intermediate report in which he said,
“In the opinion of the undersigned there is no evidence to warrant the conclusion that the questioning in this case had any coercive effect upon the employees or substantially interfered with their rights protected under the Act. Nor did the questioning occur in a background of Company hostility to organization or as part of [a] concerted plan to prevent or frustrate unionization of its employees.”
That certainly was based on substantial evidence and as I read the Board’s decision it agreed but nevertheless arrived at the supposition, conti-ary to substantial evidence and unsupported by any, that such questioning might engender in the minds of employees a fear of reprisal. We should not allow this, flimsy foundation of mere surmise to become adequate support for the order here made. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456,. 95 L.Ed. 456. There was confusion among the employees as to the significance and importance of the “bug” or union label which the employer was using and as to what effect an election making the Mailers Union their collective bargaining representative would; have upon its future use. The employer, with no anti-union motive, questioned! some of the key employees and explained the situation to them fairly and honestly in the belief that they would pass the information on to other employees for consideration and to aid them in voting more intelligently on a matter of great importance to them. Far from being likely to intimidate, such conduct on the part of the employer enabled the employees to vote freely as they pleased in the light of pertinent information on which to make up their own minds.
The Board in this instance merely guessed itself ostensibly into position to adhere to the theory advanced in its; decision in Standard-Coosa-Thatcher Company, 85 N. L. R. B. 1358, that interrogation of employees concerning: their union membership and activities violated Sec. 8(a) (1) of the Act, even in the absence of any unfair labor practices. Its view in this respect is well summarized in the following quotation from page 144 of its Sixteenth Annual Report:
“Consistent with past rulings, the Board has continued to hold that the questioning of employees by their employer per se violates Section 8(a)(1) when it concerns the following subjects: Employees’ union membership or activities. Their attitude toward the union,, or their desire for union representation. Their voting intentions in a scheduled Board election, or their views concerning the outcome of a scheduled Board election * *
This theory is, however, in conflict with our decisions in N. L. R. B. v. *601Montgomery Ward & Co., 2 Cir., 192 F. 2d 160, 163 and N. L. R. B. v. Sandy Hill Iron & Brass Works, 2 Cir., 165 F. 2d 660, 662, that, since the Taft-Hartley Act became effective, interrogation of employees by an employer and statements by an employer to employees which fall short of present threat or intimidation, or promise of favor or benefit as a reward for resistance to the union are not unlawful.
It is also contrary to Sax v. N. L. R. B., 7 Cir., 171 F.2d 769, 773 where it was well said that, “Mere words of interrogation or perfunctory remarks not threatening or intimidating in themselves made by an employer with no anti-union background and not associated as a part of a pattern or course of conduct hostile to unionism or as part of espionage upon employees cannot, standing naked and alone, support a finding of violation of Section 8(1).” To like effect are N. L. R. B. v. England Bros., 1 Cir., 201 F.2d 395; N. L. R. B. v. Tennessee Coach Co., 6 Cir., 191 F.2d 546; and Wayside Press v. N. L. R. B., 9 Cir., 206 F.2d 862. Consequently, I am unable to agree with my brothers that the order is enforceable and would deny this petition.