(concurring) :
I concur in .the remand for further consideration by the Board of its own current practice as understood by the Supreme Curt in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), but without limitation. I point out, however, what seems .to me the narrow scope of the Gissel decision in relation to this case. The Supreme Court ruled that an employer’s duty to bargain under Section 8(a) (5) is not restricted solely to those unions which have been certified after a Board election. The Court also rejected the view that Union authorization cards are inherently unreliable. The facts in the record before us make both of these rulings applicable to the present ease; but the Supreme Court also pointed out that it was not deciding whether a refusal to bargain absent an unfair labor practice other than a violation of Section 8(a) (5) constitutes a violation of that section.* I accordingly do not give weight to the Board’s present contention that because the Court described current practices of the Board it impliedly approved them. On the other hand I do not think the Court’s decision covers the Union’s position in the present case, aside from the specific holdings noted above.
Our Per Curiam suggests that the Supreme Court’s understanding of current Board practice is that it prohibits an employer from refusing to grant union recognition on the ground that there is no appropriate unit, thus raising the question whether under that practice the employer’s conduct in our case would be proper. That the Board’s current practice is as our Per Curiam suggests the Supreme Court understood it to be is not entirely clear to me.
Putting aside now the reference in the Supreme Court’s opinion to the practice of the Board as stated in its oral argument in Gissel, it is significant that the standard the Board urges in support of its decision favorable to the employer in the present case is one of “bad faith” on the employer’s part. In this connection the Board urges that if the em*638ployer does not commit other unfair labor practices it can refuse to bargain with impunity so long as it has no independent knowledge of the Union’s representative status. The present record reveals that the Union representatives had authorization cards free of suspicion from a majority in a unit recognized as appropriate by the trial examiner and the Board, followed by evidence of the majority’s solidarity through the picketing and strike. Moreover, the employer did not demand that the Union request a Board election. It simply refused to recognize the Union. I understand our remand does not exclude consideration anew of whether in these circumstances the employer was shown to have acted in bad faith and, if so, the appropriate disposition the Board should make of the case.
In footnote 18, Gissel at 601, 89 S.Ct. at 1933, the Court warned that,
In dealing with the reliability of cards, we should re-emphasize what issues we are not confronting. As pointed out above, we are not hero faced with a situation where an employer, with “good” or “bad” subjective motivation, has rejected a card-based bargaining request without good reason and has insisted that the Union go to an election while at the same time refraining from committing unfair labor practices # $ ^