(concurring in part and dissenting in part).
I concur with my brethren in support of the Board’s finding of a violation of Section 8(a) (1), and I concur in Judge Anderson's opinion insofar as it deals with that issue. I dissent from the Court’s refusal to enforce the Board’s order to bargain.
The Board found “on the basis of the particular circumstances [of this case] that the Respondent was justified in not regarding the Union’s letter as a specific request to bargain.” Thus in refusing to enforce the remedy devised by the Board, the Court gives great weight to the technicality that the union petitioned for an election without waiting for a reply to its letter to the employer asking for recognition. If the union had waited for a reply, the employer would have been required to bargain, there being no good faith doubt as to representation. The Court would then have accepted the Board’s bargaining order as entirely proper.
Much of the Court’s reliance is based upon the argument that the employer did not interfere very much with the election. I would have thought that a judgment as to the extent of such interference was peculiarly within the area of the Board’s expertise. On April 1 and April 23 the employer held meetings of all his employees at-which he urged them not to join the union. On April 26 and May 2 he sent them letters to the same effect. The letter of May 2 the employer personally distributed up to a minute before the polls closed. Of this letter the Board said:
“[I]t contained a series of promises of benefit and invitations to employees to deal directly with the Respondent that dissipated the majority status of the Union and destroyed the conditions for a fair election in which the Union could demonstrate its majority.”
The evidence shows that a majority for the Union of at least 20 to 8 was changed *81to a majority against the Union of 19 to 7.
The Court refers to the employer’s interference with the employees’ election as “at most a moderate unbalancing of an election.” (Just how many votes must you interfere with in order to achieve an immoderate unbalancing of an election?) Putting the Union in the position to which it was entitled before the employer’s interference, the Court calls putting it “in a position to unbalance [the election] the other way to an extreme degree.” What the Court appears to be saying is that to provide employees with bargaining representatives is to exercise extreme influence on their choice (i. e., in favor of those representatives), while to leave them to deal unrepresented with the employer is only to influence them moderately. I can only repeat that it seems to me that all this balancing of various factors is peculiarly the duty of the Board.
Finally, though the Court’s order would appear to direct an immediate election, surely the Court is going to leave to the Board at least the determination of the time when the election should take place. That time should be the earliest date at which it may fairly be said that the effects of the employer’s unfair labor practices have been dissipated. If we enforced the Board’s order the election would take place when the employer was in compliance with the order. Armco Drainage & Metal Prods., Inc., 116 N.L.R.B. 1260 (1956); Squirrel Brand Co., 104 N.L.R.B. 289 (1953); Brooks v. N. L. R. B., 348 U.S. 96, 101 n. 9, 75 S.Ct. 176, 99 L.Ed. 125 (1954) (dictum). I do not see that there is any advantage in this difference to anyone but the employer, who, by reason of the Court’s decision, is able to accomplish exactly what he originally set out to accomplish, i. e., to postpone the date when he must deal with the employees through their chosen representatives, or to see to it that that date never comes.