(concurring in the result):
This case does not have the simplicity for me that it does for my brother Hays. Being asked to enforce an order requiring recognition of a union more than *569five years after the organizing campaign is enough in itself to arouse serious qualms. These are compounded by the circumstances that the inordinate delay was almost wholly attributable to the Board — more than 15 months of it a deliberate one by the General Counsel; that the union’s card-count majority was small and doubtful on any view; that there has been a considerable turnover in the employees; and that nothing now stands in the way of a fair election. If we were free to decide the case in accordance with our own notions of good sense, I would unhesitatingly join my brother Anderson in denying enforcement of the bargaining order. But I cannot find sufficient legal basis for refusing to grant enforcement, distasteful though that is.
The two most important objections to enforcement of the bargaining order are the arguments that the union lacked a valid majority1 and that even if it did, the order is an inappropriate remedy under the peculiar circumstances.
In NLRB v. S. E. Nichols Co., 380 F.2d 438, 441-445 (2 Cir. 1967), we rejected the rule announced by the Board in Cumberland Shoe Corp., 144 N.L.R.B. 1268 (1963), enforced 351 F.2d 917 (6 Cir. 1965), that an authorization card “clear” on its face could be invalidated for misrepresentations as to its purpose only by proof that the solicitor had said that the “sole” purpose of the card was to secure an NLRB conducted election; we held that cards were invalid if “signers were induced to affix their signatures by statements causing them to believe that the union would not achieve representative status without an election.” Our decision has already become the subject of consideration by the Sixth Circuit, NLRB v. Swan Super Cleaners, 384 F.2d 609 (1967), and the District of Columbia Circuit, Int’l Union, United Automobile, Aerospace and Agricultural Implement Workers v. NLRB (Preston Products Co.), (1967). The Sixth Circuit, which we had thought, 380 F.2d at 444, committed to the Board’s narrow Cumberland rule, now has disclaimed any such commitment, declaring that “whatever the style or actual words of the solicitation, If it is clearly calculated to create in the mind of the one solicited a belief that the only purpose of the card is to obtain an election,” the card is invalid. The difference between this and our formulation is inconsequential in most instances, as evidenced by the Sixth Circuit’s apparent agreement with the result we reached in Nichols. On the other hand, a divided court in the District of Columbia Circuit has adhered to the Board’s Cumberland rule which makes everything turn on the solicitor’s use of “only” or a synonym.
The Preston opinion does not explain why misrepresentations to employees that card signatures will not suffice to require the employer to grant the union a seat at the bargaining table as their exclusive agent should be disregarded unless the solicitor can be proved to have said in ipsissimis verbis that the sole purpose of the cards is to procure an election. As Judge O’Sullivan aptly wrote in Swan Super Cleaners, Inc., supra, 384 F.2d at 620, “A sophisticated and only modestly talented union agent could easily live with such a narrow rule and, leaving out the bad words — -‘sole’ and ‘only’ — employ language clearly calculated to lead a woman laundry worker to believe that the holding of an election was all that she signed up for.” 2 While the Preston opinion ex*570presses concern that a contrary course “would require us to examine all relevant testimony in detail, to adjudge the credibility of each witness, and to weigh the evidence,” this could hardly have meant that the Cumberland rule avoids these tasks; it simply narrows the scope of inquiry to whether the solicitor used a particular form of words. Furthermore, as the court was of course aware, judges reviewing agency action do not “adjudge the credibility of each witness” or “weigh the evidence.” While ease of review is indeed desirable, this can never justify narrowing the inquiry to eliminate relevant facts; here, as in NLRB v. United Steelworkers of America, 357 U.S. 357, 364, 78 S.Ct. 1268, 1272, 2 L.Ed.2d 1383 (1958), mechanical answers will not “avail for the solution of this non-mechanical, complex problem in labor-management relations.” The extensive discussion of evidence in such cases as Nichols and Swan Super Cleaners was necessitated by the Board’s use of the wrong standard and the courts’ desire to avoid a time consuming remand; once the Board adopts the proper standard, judicial review under Nichols or Swan Super Cleaners should not be substantially more difficult than under the District of Columbia rule. Moreover, the supposed administrative advantage of the latter largely vanishes in light of the court’s appropriate concession that the simplistic Cumberland rule would be inapplicable if the evidence revealed “gross misstatement as to the union’s intention with respect to an election,” and that “Cumberland does not articulate an absolute rule, but rather a useful and well founded rule of thumb.” What would truly ease the administrative problem both for the Board 3 and for the courts would be for the Board to use its long neglected rule-making power 4 and specify what a union authorization card should say and how.
I agree with Judge Anderson that a considerable number of cards must be invalidated for proven misrepresentations by solicitors5 but that this still leaves *571the Union with a majority. Where I am unable to follow him is in his view that other circumstances cast on the General Counsel a burden that would not otherwise have existed. The August 3 handbill was indeed misleading; while it stated “your card is your written pledge that you want UE Local 218 at Bryant,” this was followed immediately by language indicating that the card was simply a pledge to vote for Local 218 at an election. However, the joint appendix does not inform us how many cards were signed in reliance on the handbill; the signing had begun at the end of May and the Board credited testimony of the chief organizer that he had explained at meetings from the outset that if the *572Union achieved a majority status which the Company refused to recognize, the Union could file charges. We are pointed to no evidence that a particular solicitor had engaged in misrepresentation in so large a proportion of his solicitations as to require General Counsel to produce all his solicitees in order to avoid the otherwise reasonable inference of similar conduct. See NLRB v. Golub Corporation, 388 F.2d 921, 924 (2 Cir. 1967); Lesnick, Establishment of Bargaining Rights Without an NLRB Election, 65 Mich.L. Rev. 851, 857-58 (1967); cf. NLRB v. James Thompson & Co., 208 F.2d 743, 748 (2 Cir. 1953). Though there was a two-year lag between events and hearing, 15 months of which were attributable to the deliberate decision of the General Counsel, it is unclear how much the excess of this delay over the normal four or five months 6 added to Bryant’s problems of proof, and Bryant’s own conduct, as depicted in the portion of Judge Hays’ opinion headed “Dissuading employees from cooperation with the Board,” is subject to criticism.
While there is much force in Judge Anderson’s position that even if the Union had a valid majority, a bargaining order is not an appropriate remedy under the unusual circumstances here presented, I find difficulty in believing the controlling decisions of the Supreme Court cited in both opinions leave us free to hold this. Franks Bros. Co. v. NLRB, 321 U.S. 702, 704, 64 S.Ct. 817, 88 L.Ed. 1020 (1944), itself involved refusal to bargain with a union seeking initial recognition on the basis of a card count. While it may be distinguished since here the much longer delay was not “necessary fairly to determine the charges of unfair labor practices,” Id. at 705, 64 S.Ct. at 819, (emphasis supplied), the Court’s latest expression on the subject, in NLRB v. Katz, 369 U.S. 736, 739, 748 fn. 16, 82 S.Ct. 1107, 1114, 8 L.Ed.2d 230 (1962),7 was couched in terms so strong that to impose an exception requires more boldness than I possess.
I thus reluctantly concur in the enforcement of what seems to me an exceedingly ill-advised order.
. While I agree with Judge Hays that General Counsel sustained his burden of negating good faith doubt, I do this solely on the basis of Bryant’s adamant position that it would not recognize a union without Board certification, and dissociate myself from what is said as to the bearing of its rejection of a card check and of its violations of § 8(a) (1). See NLRB v. River Togs, Inc., 382 F.2d 198, 206-207 (2 Cir. 1967); Textile Workers Union of America v. NLRB, 380 F.2d 292 (2 Cir. 1967).
. “A sophisticated and only modestly talented union agent” could still more easily conform his testimony to the “sole purpose” standard, even without conscious prevarication. While it is true, as emphasized by Judge Wright in Preston, that the evidence of “employees testify*570ing under the eye of the company officials,” is somewhat suspect, there is no reason to suppose the testimony of union organizers is any less so. So far as memory is concerned, an employee would seem rather more likely to be able to recall what was said to him than an organizer would be to remember what he said to each of scores of employees in many campaigns ranging over months, or, as here, years.
. The percentage of unfair labor practice charges filed against employers containing § 8(a) (5) allegations has risen from 28.5% in the year ended June 30, 1964, when Bernel Foam Products Co., Inc., 146 N.L.R.B. 1277, was decided, to 35.0% in the year ended June 30, 1966, and the General Counsel has reported that over 40% of the hearings held during fiscal 1966 involved § 8(a) (5), 64 LRRM 181, 191. See Suggested Changes in NLRB Labor Relations Board Procedures, Report of Committee on Labor and Social Security Legislation of Ass’n of the Bar of the City of New York, Table D (1967). The General Counsel has pointed out that cases like the present “normally involve complex fact and legal issues and require more Regional Office time and manpower to investigate and process.” 64 LRRM 181, 186.
. See International Union of Operating Engineers, Local 49 v. NLRB, 122 U.S.App.D.C. 314, 353 F.2d 852, 856 (1965); Peck, The Atrophied Rule-Making Powers of the NLRB, 70 Yale L.J. 729 (1961); 16 Admin.L.Rev. 77 (1964); 1 Davis, Administrative Law Treatise § 6.13, pp. 147-50 (1965 pocket part).
. The testimony given by employee Brod-erick, after the Board had reversed the Trial Examiner’s ruling which had forbidden inquiry into the circumstances of the signatures, illustrates the morass of confusion produced by the authorization card procedure as now sanctioned:
“Q. (By Mr. McGuiness, Company Counsel) Would you please tell us in your own words the circumstances surrounding the signing of the card, including what was said at that time?
A. Well, I was offered a card and asked if I would sign up, sign a card. The reason was that if they had enough cards in, there would be a union election to form a union. So I did.
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Q. Now, do I understand your testimony to be, Mr. Broderick, that there was general talk in the plant about the purpose of signing the cards? A. Yes, the purpose that I mentioned; I thought I mentioned that if we were *571ío have enough cards in, it would call for an election.
Mr. McGuiness: The following questions are for the purpose of making an offer of proof.
Q. (By Mr. McGuiness) What was your understanding then of the effect of the signing of the card, Mr. Broder-ick? A. What was my understanding?
Q. Yes. A. You mean my own understanding?
Q. Yes, your personal understanding of what the card meant. A. To form a union.
t}s ;js # #
Q. (By Mr. McGuiness) Was it your understanding, Mr. Broderick, that the card could be used to establish a union in the plant without an election?
A. My understanding? No, sir. My understanding was that we had to have the majority of cards for the union to win.
Q. Well,- did you understand there was to be an election or not from the cards? A. Yes, if there was enough signed cards placed there, they would hold an election.
# * * * ❖
Q. (By Mr. Panos, for General Counsel) Mr. Broderick, I believe you testified you don’t recall who it was that said to you something prior to your signing your card? A. No, I don’t recall who it was, no.
Q. And would you tell us again what was said to you, if anything? A. Yes, if I can recall. It was that if there was enough signed cards, enough fellows their [sic] signed cards, it could hold an election.
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Q. Were you ever told that one of the purposes of signing the card was to show your support for the union? A. Well, I was asked to sign the card to support the union and I did it. That is the best way I can explain it to you.
Q. Sir? A. I did sign the card to support the union. I don’t know whether those same words were ever put to me or not.
* * * * *
Trial Examiner: Let me follow up with a question. You said you don’t know whether those words were put to you?
The Witness: Well, the only way I can explain it to you, I mean, if I signed the card, my idea in my own mind is I was supporting the union by signing the card. I agreed with it to sign the card to call for an election. I just figured — that is what I am trying to tell you. I must have known I was supporting the union.
Trial Examiner: You don’t mean that anybody told you to sign the card in support of the union or anything to that effect?
The Witness: Well, I don’t know. I don’t think I had been told that. If I signed the card willingly, I must have —it must have been in my opinion that —that is the way I tried to explain it. I must have known what I was doing if I did sign it at that time.
* * * * 3ft
Q. (By Mr. Panos) Mr. Broderick, were you ever told that the only reason you should sign the card, single and only reason that you should sign the card, was in order to get an election? A. Well, I wasn’t pointed out singularly; I think the way it was explained to me if we had enough cards in, we could hold an election.
Q. So, is it your testimony that signing the card, that one of the purposes of signing the card was to get an election? A. Yes, sir.
Q. And is it your testimony that by signing the card that getting an election was not the only purpose as was said to you, that it was not the only purpose? A. I don’t know what you mean by that, sir.
Q. Well, you have told us that you were told that signing the card was to get an election, but that was not the only reason you were told that you should sign the card; is that correct?
A. That is the only reason I was told. That is all I heard about it. You put a card in and you can hold an election if there are enough. * * * ”
. See the report cited in note 4, Table G.
. “The company urges that, because of the lapse of time between the occurrence of the unfair labor practices and the Board’s final decision and order, and because the union was repudiated by the employees subsequently to the events recounted in this opinion, enforcement should be denied altogether or conditioned on the holding of a new election to determine whether the union is still the employees’ choice as a bargaining representative. The argument has no merit. Franks Bros. Co. v. NLRB * * *. Inordinate delay in any case is regrettable, but Congress has introduced no time limitation into the Act except that in § 10(b).”