(dissenting) :
Under the peculiar circumstances of this case, I think a bargaining order, by imposing on petitioner's employees a form of representation concerning which a substantial majority has never had an opportunity to express a preference, disregards the employees’ § 7 rights, and undermines the most fundamental policies of the Act. Accordingly I dissent from its enforcement, and would order that a new election be held.
The Union lost an election at Bryant in 1959. When it opened its organizing campaign at petitioner’s plant in May of 1962, it immediately made known its purpose to sign up enough employees so that this time it would win the election. Many of the employees had experienced previous union campaigns at Bryant in 1956 and 1959, each of which had culminated in a Board-conducted secret ballot election. From the start there were clear indications that this drive would follow the same pattern, and the general talk around the plant was that there would have to be an election to determine the question of recognition.
The Union and its organizers were in no small part responsible for the general impression that the Union could not get in without first winning an election. The Trial Examiner found that Union leader Harley had “made it known that *573he contemplated that an election would have to be held in order to obtain recognition,” and that there was talk of this at Union meetings and in conversations with individual employees. Although Harley testified that he had explained at one of the meetings all the ways in which the Union might gain recognition, whatever he said apparently made no lasting impression on the employees.1
The Union advertised that it needed enough signed authorization cards to petition the Board for an election, and that, by the beginning of August, it was making good progress in reaching this goal. Many of the employees who signed were expressly told at the time that the purpose of the card, which was of the standard variety used in these campaigns, was to bring about an election. Some were assured that they need not, therefore, pay any attention to what was printed on the face of the card. A few others were warned that if they did not sign a card at that time it would cost an extra $40 or $50 to join the union if it won the election. No one was told, on the other hand, that the Union might seek recognition on the basis of the cards alone, without first having a vote.2
On August 3 the Union distributed a handbill which was headed: “UE 218 Organization for NLRB Election Making Good Progress.” The handbill, which had been prepared by Harley, then stated the two purposes of the authorization cards — first, “to get an election,” and, second, to assure the Union that it would have enough votes to win the election. It concluded with an exhortation to the employees to “SIGN A Card.” In the next few days additional cards were solicited and signed, and by August 14,1962, the Union had a total of 198 signatures from a work force of 337.
On August 17, the Company refused to recognize the Union on the strength of its asserted card majority, and insisted that the question of representation be settled in a Board-conducted election. This was no surprise to the Union which, without waiting for the Company’s answer, had filed an election petition with the Board. For three months thereafter, both the Company and the Union waged a vigorous campaign to capture the employees’ support at the upcoming secret ballot election. Then, on November 1, 1962, the votes were cast and counted and the Union was defeated 184 to 124.
Objections were filed by the Union and the results of the election were set aside on December 18,1962, and a new election was ordered by the Board’s Regional Director. Thereafter, the Union withdrew its petition for an election, and on January 3, 1963 filed unfair labor practice charges alleging that certain pre-election conduct on the part of the petitioner had violated § 8(a) (1), and that its refusal to recognize the Union on August 17 had violated § 8(a) (5).
The Regional Director refused to issue the § 8(a) (5) complaint, apparently relying on Aiello Dairy Farms, 110 N.L.R.B. 1365, which stood for the then applicable Board doctrine that, by submitting to a secret ballot election, a union waived its right to assert an antecedent refusal to bargain against an employer who wins the election. On March 13, 1963, the Union appealed this decision to the Board’s General Counsel in Washington, where the case then rested for some fifteen months.
*574At the time the Union filed its appeal, the General Counsel was aware that the Aiello rule was being challenged in Barker’s East Main Corp., 142 N.L.R.B. 1194, then pending before the Board, and this prompted him to withhold immediate action in the present case. The Barker's decision did not overrule Aiello, but the General Counsel was still of the opinion that he could bring about the change, and, with that in view, he selected a few cases which might squarely raise the issue before the Board. His objective was finally achieved in the Board’s decision in Berne! Foam Products Co., Inc., 146 N.L.R.B. 1277, which overruled Aiello and paved the way for issuance of the § 8(a) (5) complaint against petitioner on June 5, 1964, nearly two years after the alleged violation of the Act.
The progress of the present case was equally deliberate. The hearing, which commenced on July 28, lasted for over two months. Since the Company challenged the validity of many of the authorization cards on which the Union relied to establish itself as bargaining representative, the hearing necessarily involved the examination and cross-examination of a great number of witnesses. But the delay was principally caused by the Trial Examiner who, in an erroneous ruling, refused to permit the employer to cross-examine witnesses. This resulted in an interim appeal to the Board, an adjournment to study the proper procedure by which over two hundred witnesses should be recalled for cross-examination, and the time consumed in recalling and cross-examining them. The Trial Examiner then took eight months in reaching her decision and the Board added four more. This appeal was finally argued almost five full years after the 1962 election.
In its answer to the unfair labor practice charges, petitioner challenged the authority of the General Counsel to issue the complaint after having deliberately withheld action for fifteen months while the Board changed the law. The Trial Examiner and a majority of the Board were of the opinion that neither petitioner nor its employees had suffered prejudice as a result of the unusual procedure which was followed.3 Noting that a secret ballot election is “normally the best method of determining whether or not the employees desire to be represented by a bargaining agent,” the Board then concluded that violations of § 8(a) (1) by the petitioner during the 1962 election campaign precluded the holding of a fair election at the time of the decision and ordered that the petitioner recognize the Union on the strength of the cards in order to effectuate the policies of the Act. The Board’s order is dated October 3, 1966.
Under § 10(c) the Board is empowered to take such affirmative remedial action as will effectuate the policies of the Act. In some cases involving § 8(a) (5) violations the bargaining order remedy “may be thought uniquely appropriate,” NLRB v. Flomatic Corp., 347 F.2d 74, 79 (2 Cir. 1965), and it is settled that the Board has considerable discretion in the exercise of its remedial function.4 But this does not mean that it is free to impose a remedy merely “on the basis of experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate a policy of the Act,” NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. *575287, 290, 97 L.Ed. 377 (1953), which, in my view, is precisely what the Board has done here.
One objective of the Act is to guarantee that employees have freedom of choice on the question of union representation. That policy is reflected in the right to organize granted by § 7 of the Act, and in the 1947 amendment to that section which expressly adds the right to decline any form of organized representation. The obvious design of the amendment was to “permit employees — as distinguished from boards and unions — to choose their own bargaining agent,” NLRB v. Red Arrow Freight Lines, 180 F.2d 585, 586 (5 Cir.), cert. denied 340 U.S. 823, 71 S.Ct. 57, 95 L.Ed. 605 (1950), and to “prevent forcing the unwilling worker into a union,” NLRB v. International Union, United A., A. & A. I. Wkrs., 320 F.2d 12, 15 (1 Cir. 1963).
Despite the Board’s “no prejudice” observation, I am convinced that a bargaining order, imposed nearly five years after the Union was rejected in a secret ballot election and after numerous delays attributable to the General Counsel, the Trial Examiner and the Board, will work an injustice on a substantial portion of the employees at petitioner’s plant by depriving them of the right of free choice guaranteed under § 7. While the General Counsel awaited a change in the law so that he might prosecute this case against petitioner, the composition of the Bryant work force was naturally undergoing change. After further delays at the hearing, the appeal to the Board, and finally the appeal here, sixty-two employees who signed cards in 1962 are no longer employed at petitioner’s plant and the size of the appropriate bargaining unit has grown from 337 to 456. Consequently a bargaining order makes the Union, by fiat, the representative of a unit, more than two-thirds of the members of which never had an opportunity to say whether they wanted such representation or not.
This case stands on a different footing from those where an employer has refused to bargain with a duly authorized representative of the employees on the ground that the union may no longer represent a majority of the work force. Where a union has once been validly designated as bargaining representative, it would be a clear subversion of the decertification procedures of § 9(c) to permit the employer to qualify its bargaining obligation by demanding periodic reconfirmation of the union’s majority status. NLRB v. Mexia Textile Mills, Inc., 339 U.S. 563, 568, 70 S.Ct. 833, 94 L.Ed. 1067 (1950). Thus, there is good sense to the rule that a “bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.” Franks Bros. Co. v. NLRB, 321 U.S. 702, 705, 64 S.Ct. 817, 819, 88 L.Ed. 1020 (1944). These cases, as well as others cited there and in the Court’s opinion,5 all involved unions which had been once validly designated- by the employees as their representative. They are not apposite here where the record fails to show that the employees ever intended to designate the Union as their bargaining agent, and where the changed work force is attributable to extraordinary delays of which petitioner was in no part the cause. Cf. Franks Bros. Co. v. NLRB, supra.
There is no dispute that on August 14, 1962, 198 of 337 eligible Bryant employees had signed union authorization cards. But that does not alone establish the Union’s entitlement to recognition where the record shows that cards were obtained by fraud, coercion, or misrepresentation. NLRB v. Gotham Shoe Mfg. Co., 359 F.2d 684 (2 Cir. 1966). For instance, a card cannot be counted where the employee signing the card has been told by the person soliciting his *576signature on behalf of the union organizers, that the “sole purpose” is to bring about a secret ballot election, nor is a finding of invalidity limited to such cases. It is recognized that deceptive and devious tactics have become the hall-mark of card campaigns, see Note, Union Authorization Cards, 75 Yale L.J. 805 at 823-828 (1966), and this fact of life in labor-management relations calls for the rejection of the “sole purpose” test as the exclusive means of invalidating a union card, NLRB v. S. E. Nichols Co., 380 F.2d 438, 444-445 (2 Cir. 1967), a result which we thought would invest words such as “sole,” “merely,” “just” or “only” with a “kind of talismanie quality.” NLRB v. Golub Corp., 388 F.2d 921 (2 Cir. 1967).
Although this court has not gone so far as to sanction the investigation of an employee’s subjective intent in signing a card where has been no form of misrepresentation made in its acquisition, it has clearly stated that the decisive question in these cases is whether the employees meant to make the union their representative by signing the cards, or whether they understood their actions only as a call for a secret ballot election. NLRB v. S. E. Nichols, supra, 380 F.2d at 444. In my view, this record compels the latter conclusion; certainly the General Counsel has not achieved his burden of proving the contrary by “substantial evidence.”
The Examiner counted the cards of twelve employees which Bryant claimed had been signed only after a specific union organizer had represented that the purpose of the card was to get an election. She relied on the fact that these employees had not been told that the “sole” purpose of the card was to get an election, a legal premise which, it is now clear, is not the law of this circuit, and, in some instances, she based her ruling on the ground that the solicitor “had no authority to speak as an agent of the Union,” which is also a consideration we have deemed immaterial so long as the speaker is actively engaged in the solicitation of union cards. See NLRB v. Golub Corp., supra, n. 6 at 923 of 388 F.2d. Of those twelve cards, at least eight are clearly invalid and cannot be counted.6
The Examiner gave “no weight” to the testimony of some fifteen other employees who were told before signing that the purpose of the cards was to get an election, primarily because those witnesses were unable to recall who had made the representation, or whether the speaker was an “authorized union solicitor.” The inability of the employees to recall what the Examiner considered to be vital details was due to the delay in the commencement of the hearing, for which the General Counsel was responsible. In any event it was sufficient if the representation was made by someone who was soliciting his signature on a card. Accordingly, eleven of these cards should be invalidated because of representations, made at the time they were signed, that there would be an election.7
*577Under the circumstances of this ease, petitioner’s failure to show conclusively that ten additional cards were obtained by misrepresentation or coercion is not of controlling significance.8 Where a card majority is reasonably challenged, and where despite the fact that evidence has gone stale, that challenge is supported by proof that as many as nineteen cards are invalid and that the general atmosphere at the time of the campaign was clouded by election-oriented propaganda, the burden should rest with the General Counsel to show by a preponderance of the evidence that the subjective intent to authorize union representation was not vitiated by such extreme circumstances. Cf. Engineers & Fabricators, Inc. v. NLRB, 376 F.2d 482, 487 (5 Cir. 1967).
It is not necessary that misleading representations be conveyed by word of mouth. Thus it has been held that cards which were distributed to employees along with a covering letter, suggesting that they would be used to petition a Board election, cannot, without more, support a bargaining order under § 8(a) (5). Bauer Welding & Metal Fabricators, Inc. v. NLRB, 358 F.2d 766 (8 Cir. 1966). The letter in that case carried a message remarkably similar to that printed in the Union’s August 3 handbill, id. at 768-769, and the authority is a persuasive one for the petitioner.9 But an additional factor here is the likelihood that the multitude of misrepresentations made by specific union solicitors 10 contributed to the more general understanding which existed among the employees that the Union could not win representative status without an election.11 It is highly likely that in*578formation concerning the cards, like word of employer threats would spread rapidly among the employees, see Irving Air Chute Co. v. NLRB, 350 F.2d 176, 179 (2 Cir. 1965), as was no doubt true of the news that signing at that time might mean an eventual saving of $40 to $50.12
Nor can the Board’s boilerplate reference to possible lingering effects which petitioner’s 1962 § 8(a) (1) violations may have on a new election render its bargaining order a satisfactory alternative. Normally the automatic application of the Board’s theory in these cases, a theory which has been ably criticized,13 is supportable as a reasonable exercise of discretion. But certainly that is not the case here, where the Board’s own delays have provided more than ample time for whatever prejudice may originally have emanated from the minor § 8(a) (1) violations, which we have sustained, to dissolve and vanish. It defies reason to say that those violations were of such dramatic force and the words used were so imperishable that after five years they still dominate the thinking of the employees, most of whom were not there at the time, so that they are now unable to exercise their power of choice in a fair election. In my view, the Board’s remedy, founded on a contrary assumption, was imposed “without regard to circumstances which make its application to a particular situation oppressive,” NLRB v. Seven-Up Bottling Co., supra, 344 U.S. at 349, 73 S.Ct. at 290, and cannot be sustained. The Board appears to have been so anxious to punish the guilty employer, or to put the union in the saddle regardless of all other considerations, that it has completely ignored the interests of the employees whose rights are of paramount importance but who are represented by no one and who are being deprived of all voice in the matter. To issue a bargaining order and thus compel the employees to accept representation by a union on the basis of cards signed by less than 30% of the current work force is grossly unfair to these employees.
When § 9(c) was rewritten in 1947, Congress indicated that it had come to regard the secret ballot as the best means of effectuating the policies of the Act,14 which, on occasion, we have found undermined by the requirement of mandatory recognition embodied in a Board bargaining order. NLRB v. Flomatic Corp., 347 F.2d 74, 78 (2 Cir. 1965). Those policies are clearly undermined here where the validity of a majority of the signed cards was not proven, where the § 8(a) (1) violations took place over five years ago, and where over two-thirds of the present employees have never indicated a desire for representation by this Union by signing a card — let alone by vote in a secret ballot election.
The Board’s choice of remedy in this case violates § 10(c) of the Act. Therefore the petition for enforcement of the bargaining order should be denied and an election should be ordered.
. At the hearing each employee was asked on cross-examination if he had been “told at any time that the Union would use your card to bring the Union into the plant without an election?” to which the answer was invariably in the negative. Cf., NLRB v. Gotham Shoe Mfg. Co., 359 F.2d 684 (2 Cir. 1966). Most had not heard of such a use for the card until after the hearing had begun.
. Such “half-truths” are likely to give employees the “false impression that they will have an opportunity in all events to register their true preferences in the secrecy of the voting booth.” NLRB v. S. E. Nichols, 380 F.2d 438, 445 (2 Cir. 1967).
. Board Member Jenkins dissented on this point, saying:
“Delays of this character in the administrative process are unfair and unduly burdensome to the parties. * * * Lapse of time obscures the facts and makes them more difficult (and expensive) to ascertain.”
The record in this case amply illustrates these observations.
. § 10(c) authorizes the Board to “take such affirmative action * * * as will effectuate the policies of this Act,” and thus defines a wide area of discretion to devise remedies within the stated objective. E. g., Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941).
. NLRB v. P. Lorillard Co., 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380 (1942); NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); NLRB v. International Union, Progressive Mine Workers of America, 375 U.S. 396, 84 S. Ct. 453, 11 L.Ed.2d 412 (1964).
. These are the cards of Davidson, Davis, Gray, Hall, Sherer, Westcott, Morris and Perry. The Examiner assumed, without deciding, that the latter two cards should not be counted. The testimony is enlightening: Davidson: “He said the card stood for the purpose of an election * * * just for an election. * * * I pointed out what the card read to him and he said for now not to pay any attention to that.”; Davis: He “told me that if I signed the card there would be an election.”; Gray: “How about signing a card so we can get an election in the shop?”; Sherer: “I was just asked if I would sign one so they could get a majority of cards to get an election. * * * Well, I knew what it meant. I knew it was a union card meaning an election.”; Westcott: “He told me what the purpose was, to bring an election.”; Morris: “Because he told me it was to get an election. There was nothing else that would come out of the cards whatsoever. There was no other purpose.”; etc. etc.
. These are the cards of Broderick, Holden, Yessman, Bohen, Delehanty, O’Hara, White, Hoyt, Burbank, LeMere and Lynch. Examples: Broderick: “I think the way it was explained to me [was] if we had enough cards in we would hold an election. * * * That is the only reason I was told.”; Delehanty: “You have to sign the card to get in; * * * *577you have to have an election to get the union in.”; Yessman: “That is right. That was the purpose. * * * Well, they needed a majority of cards to hold an election.”; Bohen: “That it was for an election.”; etc., etc.
. This failure of proof at the hearing was due in large part to the fact that the intentional delay by the General Counsel put beyond the power of recall of most of the employees essential details about the circumstances under which they signed cards. The much shorter delay in Franks Brothers Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944) had no similar prejudicial effect.
. The record strongly suggests that reliance was in fact placed upon the representation in the August 3 handbill that the cards were “to get an election.” Employee Baker testified as follows:
“Q. (By Mr. Petrie) Mr. Baker, pri- or to the time that you signed the card in 1962 were you told that tire purpose of signing the card was to get an election? A. I wasn’t told; that’s what I understood hy reading the union leaflet.”
. The inability of most employees specifically to remember who had solicited their signatures, because of the lapse of time, precludes application in this case of the rule, recognized in NLRB v. Golub Corp., 388 F.2d 921, 924 (2 Cir. 1967), which requires the General Counsel to call as witnesses all the employees whose signatures were sought by those union organizers who generally engaged in misrepresentation concerning the purpose of the cards. Even so, the record discloses that the conduct of at least three solicitors— Hendee, LaFayette and Gavin — was extremely questionable in this regard. This is another area in which the General Counsel derived an unfair advantage from the long, intentional delay.
. Among the cards not specifically considered by the Trial Examiner were those of Wright, Rowe and Dubanevich. Their testimony illustrates that the reliability of their cards is no greater merely because no specific representation was made by an identified Union solicitor. Thus when Wright first came to work at Bryant he was told by ten to fifteen fellow workers that if he didn’t sign a card he’d be the only one in the department who hadn’t. Wright: “Well, I came in there in the middle of July and they told me in our department that everybody signed one so I signed one. * * * Q. Do you remember what was said? A. If they get enough cards they will have an election. * * * Q. And was there talk that by signing Union cards that they could get the Union in? A. No. No, it was for an election, I was told.” Rowe: “Q. Was there any talk about the purpose of signing the card? A. Well, none other than to get an election, have an election.” Dubanevich: “Q. Well, what was all this talk about Union that you heard about? A. To have a Union elec*578tion. * * * I attended to my work and then when I knew I was approached to sign the card to have an election, I signed the card.”
. One of the Union’s tactics was to make it financially attractive to the employees to sign a card. Perry testified that he would not have signed his card had he not been told by solicitor Goodell that “if I didn’t sign the card and if the Union come in it would cost me $40 to $50 to join.” Godin testified to having been told at a Union meeting that “if you signed up now, it wouldn’t cost so much later on” and Williams heard that “there was a smaller fee if you got your card in before the Union got in.” There is of course no way of telling how many others signed as a financial hedge, intending to vote against the Union at the election.
. See Note, 75 Yale L.J., supra, at 818-819.
. The author of the Yale Note finds in the legislative history of the 1947 revisions a Congressional intention to make the secret ballot the exclusive means of selecting a bargaining representative. 75 Yale L.J. at 820.