(concurring):
In declining to adopt the Administrative Judge’s findings that the owners had “instituted the bench-fine rule unilaterally,” the Board focused upon the authority of the Commissioner “to impose fines for conduct detrimental to football with or without the consent of the owners.” From this premise, the Board reasoned that
[t]his fact leads us to conclude that nothing of substance was changed by the owners’ action at their March '25 meeting * * *. Thus, if the owners had not met on March 25 and the Commissioner had levied the fines without prior consultation, there would be no dispute as to the propriety of his conduct. What the General Counsel and Charging Party are asking us to find is that by approving the resolution, the Respondent unilaterally altered the terms and conditions of employment. We believe any such holding would exalt form over substance, in that mere approval of a rule initiated by the Commissioner adds nothing of. substance when the facts show that such approval was neither required nor that it partook of any substantive difference over what the Commissioner could have done without such approval.
I am bothered because the Commissioner departed from his apparent normal course followed in imposing fines “without the consent of the owners.”
A considered analysis of the whole record convinces me that the Commissioner was concerned, and properly so, over the increasing possibility of unnecessary injury to players, and perhaps spectators, as a result of fights on the field. In his expertise, the Commissioner concluded an automatic fine should be imposed upon all players leaving the bench during an altercation on the field. And according to the position now assumed by the Commissioner and the Board, the Commissioner was fully authorized under the Constitution to take just such action. But apparently the Commissioner was also concerned about the impact such action would have upon the competitive aspects of the game; thus, he was motivated to refer the *18problem to his Competition Committee and then to the owners, pursuant to the requirements of the League Constitution.
The Committee pursued its task, contacted the owners, and the subject rule was submitted at the March 25 meeting of the owners. The full minutes of that meeting are not before us. The scanty record reads in pertinent part:
Any player leaving the bench area while a fight is in progress on the field will be fined $200.
Approved by a vote of 24 Yes, 2 No. Thus, it is readily apparent that the rule was adopted by 24 of the 26 owners, and we can assume they acted responsibly only after full consideration of the proposal.
This did not end the matter. In his letter of October 21, 1971, the Commissioner seized upon the action of the owners at the March 25 meeting by informing Edward R. Garvey, the Executive Director of the NFL Players Association, as follows:
Dear Ed:
While still considering your letter of September 30 regarding player fines I am now in receipt of your October 18 letter on the same subject.
The action taken as the result of the player fights was done so under a resolution passed by the member clubs last March. It reads:
“Any player leaving the bench area while a fight is in progress on the field will be fined $200.”
This record leaves me with the firm impression that the actions of the owners and the Commissioner in the consideration and adoption of the subject rule belies the Board’s belated conclusion that the owners’ participation in causing the rule to be adopted constituted nothing more than idle and meaningless conduct. Rather, the inference is inescapable that the Commissioner and the owners themselves considered the manner of promulgating the rule to be highly significant. Perhaps Commissioner Rozelle sought to insulate himself from the expected criticism of the players by ascribing responsibility for the rule to the owners. Or the Commissioner and owners may have believed that enactment of the rule by the owners would lend greater weight to the Commissioner’s action when he sought to enforce the rule against offending players. In any event, the conduct of the owners and the statements of the Commissioner seem at variance with the Board’s characterization of the vote by the owners as meaningless.
In the final analysis, this, like many labor cases, involves important fact questions and it is our responsibility as the reviewing court to determine if the Board’s findings and decision are supported by substantial evidence on the record considered as a whole. I am not convinced that this test has been met.
I therefore agree that the action should be remanded for an appropriate remedy.