(dissenting in part).
With the sole exception of enforcement of the bargaining order, I concur in the opinion of the majority. I am of the opinion that the petitioner company must have been misled by the complaint. It is unreasonable, in the circumstances of this case, to expect the company to have anticipated that the allegations respecting § 8(a) (1) and (3) would be the basis of a finding that § 8(a) (5) had been violated.
I think the majority has recognized that position in choosing instead to rely on the Board’s justification of a bargaining order here as an appropriate remedy for the § 8(a) (1) and (3) violations.
However, absent a finding of a § 8(a) (5) violation, I believe that a bargaining order is an appropriate remedy only:
“In those exceptional cases where the employer’s unfair labor practices are so outrageous and pervasive and of such a nature that their coercive effects cannot be eliminated by the application of traditional remedies * NLRB v. S. S. Logan Packing Co., 4 Cir., 1967, 386 F.2d 562, 570.
See also NLRB v. River Togs, Inc., 2 Cir., 1967, 382 F.2d 198; NLRB v. Flomatic Corp., 2 Cir., 1965, 347 F.2d 74, 77.
I cannot agree that this is such an exceptional case that a bargaining order is justified as an appropriate remedy for the § 8(a) (1) and (3) violations which were found.