I respectfully dissent.
In light of the disposition of this case, I will restrict my comments to only those issues discussed by the majority. My silence on the remedy issue, however, should not be construed as indicating my agreement with petitioners’ contentions.
In my view there is ample evidence to support the board’s conclusion the employers did not bargain in good faith. Like the majority, I will discuss separately the “take-it-or-leave-it” offer, the employers’ announcement of the impasse and the public relations campaign.
The “Take-It-or-Leave-It” Offer
The majority state “The record does not support a finding the employers presented their February 21 offer in a ‘take-it-or-leave-it’ manner.” (Majority opn., ante, p. 57.) I disagree. Among the facts relied on by the ma*73jority is the fact that “representatives of the employers never referred to the proposal as a ‘final offer.”’ (See majority opn., ante, p. 57.) I am unimpressed. The board was properly concerned with the substance, not the form, of the contract’s presentation. Our function in reviewing the evidence is not to decide between conflicting views on a de novo basis, but rather on the whole record whether substantial evidence justifiably supports the board’s decision. (Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 488 [95 L.Ed. 456, 467, 71 S.Ct. 456].) Here, in addition to the statements by Andrew Church (see majority opn., ante, p. 59) and the further statements by employer representatives that the contract was a “serious proposal” (see majority opn., ante, p. 57), the employer representatives took the unprecedented step of signing the contract. This could all be reasonably seen by the board as evidence the contract was presented in a “take-it-or-leave-it” manner.
Lending more credence to this view is the employers’ conduct at the next bargaining session, February 28. The union presented a counteroffer which slightly reduced some of its economic demands. The employer representatives called for a break, after which they rejected the union’s proposal without any discussion of it, and declared impasse. This timing—declaring impasse at the next meeting after the contract’s presentation, without any discussion of the union’s counterproposal—also can be seen as evidence the contract was presented as a “final offer.”
Lastly, the employers’ use of the February 21 contract in their public relations campaign evidenced its “take-it-or-leave-it” nature. A full page ad of February 24 in La Voz, a Mexicali newspaper read by many of the agricultural employees in Imperial Valley, was headlined, “We have already signed the contract, why doesn’t the Union sign it?” The ad goes on to state “The contract is complete in each of its clauses and it is already accepted and signed by the 27 affected companies. Now, the Union must also sign it so that you can return to work.”
All of this evidence considered together is sufficient for the board to have reasonably found the February 21 offer was presented in a “take-it-or-leave-it” fashion. Because there is sufficient evidence on this issue I would affirm the board’s finding.
I understand this fact alone does not establish a violation of the act. Employers have the right to take a position and maintain it to stalemate if the position is held in good faith. (N. L. R. B. v. Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229, 231.) But I believe the board’s conclusion of the lack of good faith is amply supported. The employers’ presentation of the *74February 21 contract in a “take-it-or-leave-it” fashion was properly found by the board on substantial evidence to have been designed solely to reap public relations benefits and to set up a bargaining impasse. I agree with the board’s conclusion setting February 21 as the date on which the employers began to bargain in bad faith.
Impasse
My principal difference with the majority on the question of impasse is how we view the effect of the Federal Wage Control Guidelines. The majority say “there is a lack of substantial evidence in support of the Board’s conclusion the employers did not believe they might be subjected to sanctions if the wage guidelines were not followed. . . . [T]hey were concerned sanctions might be applied under proper conditions and that is a worthy reason even though the union may not like it.” (Majority opn., ante, p. 61.)
To reach this conclusion the majority ignore the plain reading of the guidelines, the testimony of Everett Hillard (majority opn., ante, pp. 60-61) and the testimony of Ron Hull of the Imperial Valley Vegetable Growers’ Association who assisted the employers during the negotiations. Hull testified:
“Q. Was it your position that the seven percent was required by law?
“A. It was a voluntary guidelines, and it was certainly a substantial offer in relation to other contracts that had been negotiated.
“Q. Was it your position that the seven percent was required by law?
“Witness: It was a voluntary guidelines, so it wasn’t necessarily it was ‘required by law.’ It is obvious that it wasn’t required by law.” Given these facts, there is ample support for the board’s conclusion the employers did not believe they were bound by the wage guidelines. In effect, the employers had a convenient and patriotic red herring to use as an obstacle to good faith bargaining. “[A]dhering to an untenable legal position during the course of negotiations is inconsistent with the obligation to bargain in good faith.” (Fraser & Johnson Company v. N.L.R.B. (9th Cir. 1972) 469 F.2d 1259, 1263; Queen Mary Restaurants Corp. v. N. L. R. B. (9th Cir. 1977) 560 F.2d 403, 409.) The possibility of resolving the parties’ respective differences over economics was prevented by the employers’ adherence to the guidelines, an adherence not maintained in good faith. The effect of this *75amounted to a refusal to bargain as to economics and evidenced the employers’ failure to negotiate in good faith.
Public Relations Campaign
For brevity I will confine my remarks to the majority’s rejection of the board’s conclusion that the employers’ combined “take-it-or-leave-it” bargaining methods with a publicized stance of unbending firmness constituted a per se violation of the act representing a refusal to bargain “in fact.” In my view there is substantial evidence to support the finding the employers committed the prohibited combination of bargaining tactics.
As I stated earlier, there is substantial evidence to support the board’s finding the employers presented their February 21 contract proposal in a “take-it-or-leave-it” fashion. The employers here were found to be bargaining in a “take-it-or-leave-it” manner on February 21, one week before negotiations came to end with the employers’ declaration of impasse. Although the employers may never have openly admitted they would not move from their position, there was substantial evidence of a “take-it-or-leave-it” attitude on their part.
Initially the employers’ media campaign may have indicated a desire to negotiate with the union. After the employers’ February 21 offer the advertisements demonstrated a subtly changed tone. They asked why the union had not signed the “contract,” stressed the fact the employers had signed it and urged the workers to pressure the union to sign the “contract.” These advertisements only refer to the “contract”; no mention is made of negotiating with the union.
More importantly, throughout the media campaign, the employers stress the applicability of the presidential wage control guidelines. For example: “That’s why we’ve already offered the maximum increase possible under President Carter’s anti-inflation wage and price guidelines.” (Salinas Californian (Feb. 6, 1979).) “The farmers have offered the highest possible wage and benefits increases under President Carter’s guidelines . . . .” (The Brawley News (Mar. 28, 1979).) “[W]e offered the highest possible raise, within the guidelines established by President Carter . . . .” (La Voz (Feb. 7, 1979).) “We the growers have offered the highest possible raise in salaries and benefits, under the guidelines of President Carter . . . .” (La Voz (Apr. 8, 1979).) The advertisements reflect the employers’ position during negotiations. Their representatives repeatedly told the union the guidelines were applicable, and would be followed.
*76It is in these advertisements, and in others mentioning the guidelines and the employers’ 7 percent offer, where the employers’ publicity campaign most closely paralleled the aspects of the campaign prohibited by N. L. R. B. v. General Electric Company (see majority opn., ante, pp. 64-67) by publicly pronouncing they could not offer more than the 7 percent allowed by the guidelines, the employers did what the court found General Electric (GE) did: “[sealed] itself into its original position in such a way that, even if it wished to change that position at a later date, its pride and reputation for truthfulness are so at stake that it cannot do so.” (N. L. R. B. v. General Electric Company (2d Cir. 1969) 418 F.2d 736, 764 (conc. opn. of Waterman, J.).)
Unlike GE, the employers here did not openly refuse to negotiate on all subjects. But because of their bad faith adherence to the position the guidelines were applicable, the employers effectively foreclosed any bargaining on the most important subject, wages and benefits. Without the ability to move in this area the negotiations could only end with either union capitulation or impasse. This is not consistent with the act’s requirement to bargain in good faith, and is the result the court in General Electric was trying to prevent.
The basic elements of the conduct prohibited in General Electric are found in this case—a “take-it-or-leave-it” bargaining method and a widely publicized stance of unbending firmness. While the violative conduct here was not as extensive or as conspicuous as GE’s conduct, it led to the same result—impasse.
Again, I believe substantial evidence supports the board’s conclusion the employers’ media campaign combined with their bargaining tactics violated the act.
Totality of Conduct
I also respectfully disagree with the majority’s conclusion that “in finding the employer guilty of bad faith bargaining, the Board failed to give adequate consideration to the overall conduct of the parties during negotiations.”
First, as to the union’s conduct (majority opn., ante, pp. 70-71) it can be reasonably assumed the board considered all of these union actions in arriving at its holding, as all are mentioned in the board’s recitation of facts. Evidencing this consideration is the board’s reversal of the ALO’s setting of December 8, 1978, as the date at which the employers began to bargain *77in bad faith. The board held the union’s lack of preparation and cancellation of meetings made it impossible to judge the employers’ good faith until mid-February, and adjusted the date on which its make-whole order was to be calculated from accordingly.
But more importantly, this argument must fail in light of the employers’ bad faith insistence on the applicability of the wage control guidelines. As the employers’ adherence to the guidelines prevented any movement on the key issue in negotiations, wages and benefits, they prevented the emergence of a situation where the union’s willingness to compromise and bargain in good faith could be tested. Perhaps the negotiations would have ended at an impasse even if the employers had not insisted on the applicability of the guidelines; perhaps not. It was the employers’ conduct which made this impossible to determine. They can fairly be held responsible for this result.
Second, as to the employers’ publicity campaign, the union’s alleged violation of the agreement to avoid publicity proves little. As the ALO notes, the testimony concerning this oral agreement was very vague. There appears only to have been a consensus not to negotiate through the press, or to comment on the progress of negotiations to the press. Leaflets distributed by the union neither violated this agreement nor were they targeted at union members, and were not distributed to the press or the public at large. The single advertisement placed by the union, run in La Voz on January 12, was found by the ALO not to have reported the contents of negotiations.
In my view, it is the “Boulwarism” aspects of the employers’ communications which violated the act. In that sense the employers’ communications stood alone. The union did not take a “widely publicized stance of unbending firmness.” It is this aspect of the employers’ communications, considered with their “take-it-or-leave-it” bargaining methods, which are critical. The union’s advertisement and leaflets criticizing the employers do not excuse this interference with the bargaining process.
Finally, the majority noted the employers’ good faith in not canceling any meetings and never refusing to discuss any issues with the union. This conduct, however, is not decisive. It clearly does not prove an intent to bargain in good faith. Depending on the surrounding circumstances, it may show no more than a desire to go through the motions—surface bargaining.
Whether the majority is correct in stating strike misconduct excuses a refusal to negotiate (majority opn., ante, p. 72) is academic. There is no case holding such misconduct may serve as an excuse for surface bargaining. And, this is exactly what the board found the employers did here. By *78refusing to meet with the union an employer can force the cessation of strike misconduct, which would then allow the resumption of negotiations. By continuing surface negotiations, the employer does not end strike misconduct and does not comply with the act’s mandate—good faith bargaining.
While continuing negotiations when arguably possessed of the right to discontinue them is perhaps some evidence of a desire to reach agreement, it is certainly not overwhelming evidence. Continuing negotiations in the face of the strike is as consistent with a desire to give an appearance of good faith bargaining as it is with an actual desire to reach agreement. As there is substantial evidence to support the board’s conclusion the employers were engaging in surface bargaining, its determination should be upheld.
The foregoing reasons convince me the order of the board should not be annulled. There is substantial evidence in the record supporting the board’s conclusion of bad faith bargaining on and after February 21, 1979. Accordingly, I would affirm the orders.
The petitions of respondent and real party in interest for a hearing by the Supreme Court were denied June 14, 1984. Bird, C. J., did not participate therein. Reynoso, J., was of the opinion that the petitions should be granted.