(dissenting).
I dissent. The majority recognizes that the Board is entrusted with a wide degree of discretion in determining the fairness of an election but here holds that the Board has clearly abused its discretion through failure to determine as a matter of fact that the employer’s action resulted in actual coercion to particular persons. I most certainly agree that the Board cannot find the existence of coercion through consideration of employees’ affidavits to that effect but the Board may determine, from undisputed facts, that an election should be set aside as not meeting the standards — rather naively termed the “laboratory conditions” — that further the purposes of the National Labor Relations Act. A proper and required standard need not peak in an actual unfair labor practice. NLRB v. Shirlington Supermarket, 4 Cir., 224 F.2d 649, 652-53; NLRB v. Clearfield Cheese Co., 3 Cir., 322 F.2d 89, 92.
The text of the cards distributed by the company prior to election is such as to negative any legitimate purpose by the employer in seeking the commitment of its employees to the substance of the text. The company solicited its employees to reject unionism itself, a commitment which, per se, extends far beyond the particularized issues of the election but is a clear reflection of the attitude of management. And, admittedly, the company withdrew distribution of the cards after reaching 60 of its 155 employees because such action had created hostility among its employees. To me, these undisputed facts could well be considered by the Board, without further inquiry, to have created a pre-election atmosphere inconsistent with its established standards for a free and uncoerced election.
I would affirm the Board on this aspect of the case and proceed to a consideration of the merits.
Rehearing denied; LEWIS, J., dissenting. Rehearing en banc denied; LEWIS and HOLLOWAY, JJ., dissenting.