(concurring in part and dissenting in part) :
Although I concur in most of the result here, I do not agree with a part of the *1009section 8(a) (5) discussion and dissent from a portion of the section 8(a) (1) holding.
1. As I understand the majority opinion, there can never be a refusal to bargain by an employer under section 8. (a) (5) if the union’s request for recognition is for too large a unit — even if only by one employee. Neither precedent nor policy justifies such a broad rule. Of course, under section 8(a) (5), if there is no proper demand for bargaining, there can be no refusal to bargain. To deal with the case in which there is a dispute about the proper unit, the board has evolved the “insubstantial variance” test. If the “variance” between the unit requested and the unit ultimately determined to be appropriate is “substantial,” the request to bargain is inoperative. On the other hand, if the variance is insubstantial, the request has legal effect. This seems to me to be a sensible result, a view shared by other courts. E. g., N. L. R. B. v. Fosdal, 367 F.2d 784 (7th Cir. 1966); Brewery & Beverage Drivers Workers Local 67, etc. v. N. L. R. B., 103 U.S.App.D.C. 190, 257 F.2d 194 (1958); cf. Industrial Union of Marine & Shipbuilding Workers, etc. v. N. L. R. B., 320 F.2d 615 (3d Cir. 1963), cert. denied sub nom. Bethlehem Steel Co. v. N. L. R. B., 375 U.S. 984, 84 S.Ct. 516 (1964). The majority apparently agrees with this if the insubstantial difference is on the low side, i. e., so long as the union seeks to represent too few employees. But if the union claims too many, even though by an “insubstantial” number, the result is different. In that case, according to the majority, there can be no refusal to bargain by the employer.
The first reason given to justify this result is that:
Bargaining in an inappropriately large unit would interfere with the Section 7 rights of those employees who would not be included in an appropriate unit and do not wish to be represented by the union.
There are two answers to this. First, section 7 rights of those employees who do wish the union to represent them are also involved when a refusal to bargain charge is thrown out because the union claimed to represent too many employees. Under the majority’s view, if the union claims a unit of 100 employees, although the proper unit is only 99, the section 7 rights of the 99 would not be enforced, even when all 99 want the union to represent them. Therefore, under the majority’s rule, section 7 rights would also be impaired. Second, I agree that bargaining should not be had “in an inappropriately large unit.” However, the Board did not order bargaining here in an inappropriately large unit; the unit was in fact reduced by the Board. The response to this, I suppose, is another basis of the majority’s opinion, the assertion that:
Sustaining the Board’s position could have the unfortunate effect of inducing unions to ask for inappropriately large units in which the unions have been able to achieve card majorities, in order to avoid the danger that the union might lose a representation election.
This may be so, but I do not agree that the “effect” would be significant. So long as the “insubstantial variance” test is used, the Board and the courts have a conceptual tool for keeping inappropriateness of a demanded unit at a minimum. On the other hand, throwing out the “insubstantial variance” test may require ignoring the section 7 rights of many employees because the union overreached as to one.
The real issue in this case is whether there was substantial evidence for the Board’s finding that petitioner refused to bargain in order “to gain time to subvert the union’s majority, thwart unionization and avoid collective bargaining.” For the reasons admirably stated in the majority opinion at 1008, I agree that there was not. Since this is a sufficient basis for not enforcing an order to bargain now, I concur in that decision. But I would not announce a broad rule that may plague us when an employer’s bad faith in refusing to bargain is ob*1010vious, but he is immune because the union claimed to represent one employee too many.
2. As to the section 8(a) (1) holding, I would not reverse the Board’s findings as to the first two incidents discussed in the majority opinion. I dissent from the proposition that an otherwise proper inference of coercive effect from language used by a supervisor cannot be made “When an employee seeks the opinion of a supervisor." I do not agree that in that instance there must be some other “evidence of the effect on the employees to support, a finding of threats or coercion * * If an employee asks a supervisor what will happen if he joins the union and the supervisor says, “You will be fired,” the Board may find that coercive. I say “may,” not “must,” because perhaps the employee was not coerced; one of the factors to be considered is that the employee did ask the supervisor. But I do not agree with the flat rule that the Board may not find the statement coercive without other evidence simply because the employee initiated the inquiry.