The opinion
BORK, Circuit Judge,
concurring:
I concur in the judgment and I agree with most of what is said in the majority opinion. I decline to join the opinion, how *206 ever, because I am uncomfortable with its overall tone as well as with a number of observations scattered throughout the opinion which seem unnecessary to the result. A prime example is the majority’s discussion of delay as an employer tactic. The majority states that “delay itself almost inevitably works to the benefit of the employer.” 1 Maj. op. at 1563. See also maj. op. at 1564, 1568 & 1569. It is not clear to me that the delay of a rerun election may not be a union tactic as well. A union may believe that the delay will enable it to gain strength. In any event, the employer in this case has not been accused of acting improperly for the purposes of delay and the majority does not suggest that in objecting to the election results the employer acted unlawfully or in bad faith. This discussion is inappropriate in the context of this casé — which involves allegations of unlawful pro-union conduct. There is no need to justify the deference courts owe to the NLRB in cases such as this one by reference to the adverse effects of delay on employee free choice. Here, the Board upheld the Hearing Officer's findings that the atmosphere at the plant was not so infected by employee conduct that a rerun election should be ordered. Maj. op. at 1561-1562. This is a reasonable finding and we owe it deference. The comments about the inevitable effects of delay are superfluous and one-sided.
This one-sided view of the effects of delay means that employee free choice will be identified with union victories. That false identification will mean that the Board should consider the likelihood that a union will win again in deciding whether to order a rerun election. Maj. op. at 1563-1564 & 1564. I am pleased that the clear thrust of this reasoning is somewhat blunted, though perhaps illogically, by footnote 2.
Finally, in agreeing with the Board’s conclusion that Mr. Ball was not a union agent the majority reaches out to reject the Fourth Circuit’s use of the “shoe-on-the-other-foot argument” in PPG Industries, Inc. v. NLRB, 671 F.2d 817 (4th Cir.1982). I am not at all sure that I would join in the majority’s criticism of that case were it necessary for us to decide whether to apply it here. We need not make a pronouncement on every case cited to us by a party merely because it is said to be controlling. In this case, even were we to adopt the PPG court’s reasoning, we would not inevitably hold that Ball was a union agent. As it is, the majority not only needlessly criticizes another Circuit, it also posits and decides a hypothetical case. Moreover, the majority’s analysis of that hypothetical is flawed. It does not follow that every time a manager asks an employee to be the “eyes and ears” of management “the request could ... only be interpreted to mean that the company was commissioning the employee for particularly special service.” Maj. op. at 1566. This conclusion rests on the assumption, which seems to me quite artificial, that it is reasonable in every case to assume that the company is “by defini *207 tion” present in the plant at all times. That case is not before us; there are no allegations here about any company agents. The majority would have done better, in my view, to have confined its discussion to the Board’s findings without ranging far afield to lay down controversial but irrelevant principles and to decide hypothetical cases.
. This proposition, which is repeated several times in the majority opinion, is chiefly supported by repeated citations to a single law review article whose arguments are highly partisan and controversial. For example, the assumption on which the article is predicated is that "[a] major factor in [the] decline [of collective bargaining] has been the skyrocketing use of coercive and illegal tactics ... by employers determined to prevent unionization of their employees." Weiler, Promises to Keep: Securing Workers' Rights to Self-Organization Under the NLRA, 96 Harv.L.Rev. 1769, 1769-70 (1983). While I trust the majority does not regard that view as axiomatic, it does seem to me that the majority should be more wary of conclusions that flow from a premise so dubious.
The second article cited by the majority, Roomkin & Block, Case Processing Time and the Outcome of Representation Elections: Some Empirical Evidence, 1981 U.Ill.L.Rev. 75, acknowledges that until the publication of their article "little published material provide[d] convincing evidence that lawyers and other consultants advise their clients in representation elections to stall intentionally," although “industrial relations folklore” accepts the “effectiveness of this tactic.” Id. at 76. Also, Professors Roomkin and Block are much less sure of the "inevitable" effects of delay than is the majority; according to them, their data suggests that delay "appears to increase the likelihood of the employer winning." Id. at 95. Finally, the Roomkin and Block study does not consider the effects of delay on rerun elections.