(concurring and dissenting):
While I concur with the majority in holding that the employees’ petition created sufficient good faith doubt of the Union’s continuing majority status to justify the employer’s refusal to bargain, I cannot agree with that part of the opinion which holds that the employer was also justified in negotiating directly with the employees.
The majority relies on NLRB v. Superior Fireproof Door & Sash Co., 289 F.2d 713 (2d Cir. 1961), which held that, after the end of the certification year, an employer who has good faith reason to believe that his employees’ bargaining representative has lost its majority status may not only refuse to bargain with that agent, but may also negotiate with another group believed to have majority support, although he undertakes the latter at the risk that his assessment of the situation is not only reasonable but right. I believe that decision failed to take into account the policies underlying the presumption of continuing majority status, and I would hold that it is not controlling in the circumstances of this case.
In support of the proposition that reasonable doubt as to continuing majority status justifies negotiations with others, the court in Superior Fireproof relied *103on NLRB v. Minute Maid Corp., 283 F.2d 70S, 95 A.L.R.2d 660 (1960); Stoner Rubber Co., 123 N.L.R.B. 1440 (1959); American Laundry Machine Co., 107 N.L.R.B. 1574, 1583 (1954); and National Carbon Division, 105 N.L.R.B. 441 (1953), all of which, with the exception of the American Laundry case, establish only that an employer may grant unilateral wage increases or changes in conditions of employment when possessed of such doubt. And in American Laundry, the negotiations took place with the Local Committee which had previously participated in bargaining sessions along with a representative of the International with which the Local was affiliated. Not only is this very different from bargaining with the employees directly but in American Laundry the Board relied on the fact that a decertification petition had been filed before such bargaining began. This is, in my view, a particularly significant distinction.
The opinion in Superior Fireproof with no explanation beyond citation to these cases, greatly expanded the previously recognized exception to the employer’s duty to bargain collectively with the chosen representatives of his employees. That limited exception as stated in Brooks v. NLRB, 348 U.S. 96, 104, 75 S.Ct. 176, 99 L.Ed. 125 (1954) merely permits an employer after the close of the certification year to refuse to bargain with a union as to whose continuing majority status he has a good faith doubt.1
The scope of the exception to the duty to bargain which Brooks allows must be considered against the background of the well-established presumption of continuing majority status and the familiar axiom that the duty to bargain with the employees’ chosen representative “exacts ‘the negative duty to treat with no other.’ ” Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683-684, 64 S.Ct. 830, 833, 88 L.Ed. 1007 (1944), citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 44, 57 S.Ct. 615, 81 L.Ed. 893 (1937).
The presumption of continuing majority status serves not only to protect for a reasonable period a bargaining relationship once rightfully established in order that it may be given a fair chance to succeed, Franks Bros. Co. v. NLRB, 321 U.S. 702, 705, 64 S.Ct. 817, 88 L.Ed. 1020 (1943), but also prevents an employer from arrogating to himself the determination of what in essence is a representation dispute, see Midwest Piping and Supply, Inc., 63 N.L.R.B. 1060, 1070 (1945).
I am persuaded that something more than good faith doubt is required to sanction negotiation with the employees directly. For an employer to enter into negotiations with a group of employees he must go beyond a determination of loss of majority status. He must decide where majority support now lies.
I would therefore hold that the presumption of continuing majority status in this situation means that an employer cannot actively negotiate with someone other than the former -majority representative until, at the very least, he has evidence as to who now represents the majority more formal and better protected from subtle and improper influences than the petition presented in this case. Compare Ruby v. American Airlines, Inc., 323 F.2d 248 (2d Cir. 1963), cert, denied, 376 U.S. 913, 84 S.Ct. 658, 11 L.Ed.2d 611 (1964) where bargaining with a substituted agent took place only after a mediator had found acceptable authorization cards from 84% of the eligible employees.
. See Celanese Corp. of America, 95 N.L.R.B. 664 (1951).