(dissenting):
I dissent from the majority’s reversal of the Board’s decision that the Company’s discharge of Tabaka violated § 8(a)(3) of the National Labor Relations Act and from the refusal to enforce those portions of the Board’s order requiring appropriate relief for that violation. I also dissent from the *102majority’s refusal to enforce the Board’s bargaining order.
The majority describes the controlling question as “whether there is substantial evidence in the record considered as a whole to support the Board’s conclusion that Ta-baka would not have been discharged but for his union activities.” The recent cases in this circuit, unlike those from other circuits cited in Judge Meskill’s thorough opinion, have not usually framed the issue in “but for” terms when the employer has both valid and invalid reasons for discharge.1 However, I see no need for an extended discussion of problems I have with the “but for” test, because the majority’s result cannot be justified even under its own test.
The record reveals evidence of the following: Tabaka led the attempt to organize the employees in the unit, and the Company concedes that it knew of Tabaka’s union activities when it discharged him. The Company was hostile to the union and engaged in a course of unlawful conduct designed to undermine it. Among other things, the Company gave various employees the impression their union activities were under surveillance and threatened them with loss of benefits and more onerous working conditions in reprisal for their union activities. These activities were the basis of the § 8(a)(1) order, which the Company does not contest and which the majority confirms by enforcing. Commission of these unfair labor practices is probative of the Company’s anti-union motivation in discharging Tabaka, see, e. g., NLRB v. Advanced Business Forms Corp., 474 F.2d 457, 465 (2d Cir. 1973), as the Board noted. Ta-baka was told by his immediate superior, Petruzzi, that if Tabaka had not engaged in union activities, more work could have been found to keep him employed. Indeed, Pe-truzzi had once before been able to find work for Tabaka to keep him on the job. Tabaka was the first unit employee and had been employed for over 15 months without any criticism of his work. Nevertheless, the Company discharged him without advance notice one week before the hotly contested scheduled election. Yet, some four months before, when Tabaka had asked Pe-truzzi for a raise (before the union came on the scene), Petruzzi told Tabaka to “approach him [again] in four or five months.” Tabaka testified that he had twice been told that the Company had a “couple of years” of work for him, and Tabaka and Sullivan testified that after the Union appeared, they were rushed to finish their work. Other evidence indicates that when Tabaka was fired, there were still several more weeks of work for him to do.
This record, then, supports findings that the Company was hostile to Tabaka’s union activities before it discharged him, indeed admitted that Tabaka would be laid off because of his involvement with the union, accelerated the completion of his final inspection duties, and then summarily terminated him without advance notice shortly before the representation election, despite the fact that he had some work left to do. Substantial evidence therefore supports the Board’s conclusion that when the Company discharged “the Union’s leading adherent” it was “motivated by . union animus” and an intent “to dissuade the [remaining] employees from supporting the Union in the upcoming election.”
Using the majority’s test, I therefore conclude that there was substantial evidence in the record considered as a whole to support the Board’s conclusion that Tabaka would not have been discharged on January 9, 1976, but for his union activities. In refuting the Board’s findings, the majority has improperly substituted its judgment for the Board’s as to the inferences to be drawn *103from the evidence in the record. See NLRB v. Milk Drivers & Dairy Employees, Local 338, 531 F.2d 1162, 1165 (2d Cir. 1976), a case cited with approval by the majority.
In the last sentence of the decision, the majority vacates without discussion the portions of the Board’s order that required the Company to recognize and bargain with the union. I assume the reason for this action is that in the absence of a § 8(a)(3) violation, the majority concluded the Company’s conduct did not warrant a bargaining order. On this record, I would disagree with this conclusion,2 but since I think the Board correctly found that Tabaka’s discharge violated § 8(a)(3), a fortiori, I think the bargaining order was appropriate.
Accordingly, I dissent.
. E. g., in NLRB v. George J. Roberts & Sons, Inc., 451 F.2d 941, 945 (2d Cir. 1971), we said in an analogous situation: “Even if there were ample grounds to fire Moller, [a union leader] if his discharge was even partially motivated by his union activity, there is a violation of § 8(a)(3).” See also NLRB v. Gladding Keystone Corp., 435 F.2d 129, 131-32 (2d Cir. 1970); J. P. Stevens & Co. v. NLRB, 380 F.2d 292, 300-01 (2d Cir.), cert. denied, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600 (1967). The majority opinion cites all three of these cases with approval. For agreement in other circuits with this phrasing of the test, see, e. g., Allen v. NLRB, 183 U.S.App.D.C. 83, 89, 561 F.2d 976, 982 (1977); NLRB v. Big Three Industries, Inc., 497 F.2d 43, 49 (5th Cir. 1974).
. Where, as here, there is a showing that the union once had authorization cards from a majority of the employees in the unit, a bargaining order is proper even though the employer’s violations were less than “outrageous” or “pervasive” if the Board properly concludes that the practices had “the tendency to undermine majority strength and impede the election process.” NLRB v. Gissel Packing Co., 395 U.S. 575, 613-14, 89 S.Ct. 1918, 1940, 23 L.Ed.2d 547 (1969). And in NLRB v. International Metal Specialities, Inc., 433 F.2d 870, 872 (2d Cir. 1970), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971), we held that under Gis-sel the Board has “almost total discretion to determine when a bargaining order is appropriate.” It has been recognized that when violations of the type found in this case — ^“[threatening employees with discharge, loss of benefits, or more onerous working conditions for engaging in union activity,” — occur in a small closely-knit unit, the impact is overwhelming and a fair re-run election is unlikely. E. g., NLRB v. Scoler’s Inc., 466 F.2d 1289, 1293 (2d Cir. 1972). Thus even disregarding Tabaka’s discharge, the reasons given by the Board for imposition of the bargaining order in this case adequately explain and justify its decision.