The opinion
L. HAND, Circuit Judge
(concurring).
This case comes before us stripped of any intimation of employer control save for the acceptance of the proposal of what I shall assume to have been a majority of the “unit,” acting as such, to abandon the union if the employer would raise the *282 wages of the “unit” as a whole. As I understand it, my brothers think that the Board was justified in holding this to be an “unfair labor practice,” without passing upon the question whether such an acceptance is ipso facto an unfair practice, even though the employer has had no hand, directly or indirectly, in the proposal. They think that they need not pass upon that question, because in such situations it is practically impossible to be sure that the employer has not in fact been the real promoter of the proposal. Rather than allow undetectible instances to escape in which he has been, the Board may condemn all such agreements, from whomever they may appear to emanate. I will not say that, if the Board had so found, I should not have felt bound to yield to its more intimate acquaintance with the subject matter; certainly it is better placed than we to know how likely it is that in such cases more is meant than meets the eye. But it did not rest its order on such a finding; it held that the employer’s acceptance was an “unfair labor practice” as such, quite as much as his proposal would have been, and it seems to me we cannot avoid passing upon that.
If the right of collective bargaining were given only in the interest of the “appropriate unit” concerned, and had no larger public purpose, I should find it very hard to assent to the Board’s position. Although 29 U.S.C.A. § 159 (a) does indeed say that “representatives designated or selected * * * by the majority * * * shall be the exclusive representatives of all the employees * * * for the purposes of collective bargaining,” it would be strong doctrine to hold that in the case of a small group like this, the majority could not be its own representative, for they are certainly the .eventual source of authority to act for the “unit.” Moreover, there can be no warrant for saying that the selection of a representative gives him personally any interest which the law need, or indeed should, recognize; his authority is purely derivative and the majority may cancel it as soon as they choose, and resume their power as principal; at least until the Board, as a measure of administrative convenience, sees fit to regulate such substitutions. If the majority have that power, and if they may use it solely in the interest of the “unit,” it is hard to find anything to prevent them from agreeing not to bargain through any representative, or not to bargain collectively at all. Any such bargain they might make would by hypothesis be a collective bargain, and would therefore bind the minority; the surrender of the “unit’s” right to bargain collectively would be as valid a term of that particular collective bargain as any other term of that, or any other, collective bargain.
Yet scarcely any one would assent to such a doctrine pressed to its conclusion; for the right of collective bargaining was created, not alone in the interest of those employees who on a given occasion may avail themselves of it, but to realize those more pervasive purposes which the preamble of the statute discloses, § 151, 29 U.S.C.A. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 267-269 , 60 S.Ct. 561 , 84 L.Ed. 738 ; National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 362-364 , 60 S.Ct. 569 , 84 L.Ed. 799 ; Phelps Dodge Corp v. National Labor Relations Board, 313 U.S. 177, 193-195 , 61 S.Ct. 845 , 85 L.Ed. 1271 , 133 A.L.R. 1217 . Not even by the unanimous consent of the “unit” could it permanently surrender its right of collective bargaining: that was created ini the interest of industrial peace, and its grant presupposed that it should not be surrendered. Nor could it surrender temporarily that which it could not surrender permanently.
The majority’s proposal in the case at bar seems to me to have been in effect a temporary surrender. True, they did not expressly agree not to bargain collectively for any specific or uncertain period; and indeed it would not inevitably follow, because they proposed to abandon the union just formed, that they proposed not to bargain collectively at all. Moreover, I agree that the Board did not base its order upon such a finding, but upon the fact that the majority could not lawfully deal with the employer while they had an elected representative outstanding. Nevertheless, the Board did find that the majority proposed in consideration of a rise in the “unit’s” wages to abandon the only union in existence; and, since the plant was otherwise completely “unorganized,” it necessarily followed that there would remain no means of collective bargaining, except as the majority continued to act as a bargaining authority. I can find nothing to suggest that the majority meant to do so, the natural inference from what they did *283 was that the relations between the “unit” and the employer were to remain what they had been: that is, conducted without any authority representing the “unit.” That seems to me to be in effect the surrender of collective bargaining, at least for the time being. How long that might be did not appear; but it would have been a breach of faith with the employer for the majority to turn about the next day and organize even an unaffiliated union; for the issue had not been the particular union already formed, but any union at all. While therefore I am not prepared to accept the Board’s reasoning, as I understand it, that it was an “unfair labor practice” for the respondent to bargain directly with the majority after it had appointed a representative, I do think that it was an unfair practice so to bargain when the majority’s revocation of the union’s authority was made conditional upon the closing of a contract in which the majority agreed to abandon collective bargaining even for an unspecified time.