A majority of the court is of opinion that the Board’s petition for rehearing in this case is without merit, and should be denied.
Both the trial examiner and the Board applied in this case what appears to have been a rule of law that, because the time elapsing after the refusal to bargain was used by the Company for acts of interference, the refusal to bargain automatically and retroactively became an unfair labor practice. For example the trial examiner, whose opinion the Board adopted, stated that the facts which we held to be a basis for bona fide doubt
“constituted no defense here, where the evidence established the actual fact of the Union’s majority at the time of the request and established further * * * that Respondent *643was contemporaneously engaged * * in a course of unfair labor practices which was obviously designed to procure the very renunciations and disavowals upon which Levenson purported to predicate his doubts. * * * But having embarked upon a campaign to destroy employee support for the Union through means proscribed by the Act, Respondent was no longer entitled to await the outcome of an election * * (Emphasis supplied.)
And the petition for rehearing frankly relies upon this ground:
“The first and third items might be germane to the Company’s good faith, but our position * * * is that the Company has no standing to assert a good faith doubt of majority under these circumstances.”
We found such a rule of law unsupported by logic or authority.
No doubt the acts of interference may be weighed as evidence bearing on whether the refusal was in good faith when made. But here no such weighing was made, nor, on the record as a whole, was this evidence substantial enough to support a finding of bad faith.
The Board now contends, in its petition for rehearing, that the reports of employee dissatisfaction were the result of the acts of interference. Not only is it inappropriate that this court, exercising a reviewing function, should supply a missing finding of fact; but also the record shows that at least the bulk of the acts of interference occurred on or after February 10, whereas the reports of dissatisfaction seem to have been made before that date. On this state of the record we clearly cannot supply the inference of an actual causal relation. Moreover, due to the Board’s reliance on its asserted rule of law, such a causal relation — affecting only the factual question of good faith — would not be especially significant.
The court did not pass on the Board’s finding that the Union had a majority m the week of February 16 to 22, or on the limits of the Board’s remedial powers. Rather it is for the Board, not this court, to decide what order for bargaining, if any, is appropriate in light of an unfair labor practice consisting of acts of interference alone. To make our position clear in our main opinion, we noted that an order for bargaining might well be appropriate in such a case; on the other hand, the two and one-half years which have elapsed since the acts of interference may well have effaced all their effects. For this court to impose on the employees what might now be an unwanted representative in absence of a free election or a determination by the Board that such a remedy is necessary or appropriate in these circumstances would be a usurpation of the Board’s function.
An order will be entered denying the petition for rehearing.
HARTIGAN, Circuit Judge, would grant the petition for rehearing.