The opinion
MacKINNON, Circuit Judge
(dissenting) :
In my opinion, this case should be disposed of in the same manner as Quality Rubber Manufacturing, 1 where Tiidee— 7 2 was distinguished and the refusal of the NLRB to grant the requested monetary relief in an 8(a) (5) case was upheld because the employer’s refusal to bargain was caused by his desire “only to obtain an authoritative determination of the validity of the Board’s decision.” In Tiidee — I, this court reversed the Board and ordered monetary relief for a flagrant 8(a) (5) violation, but in this *1054 case, as in Quality Rubber, we are being asked to grant monetary relief for a non-fla,gmnt 8(a) (5) violation. The only common denominator between this case and Tiidee — I is that both involved a refusal to bargain collectively but Tiidee — I allegedly involved “clear antiunion animus,” illegal “threats to close the plant,” “coercive actions taken against its employees,” “layoffs, discharges and changes in production quotas,” a “refusal to bargain [that] was a clear and flagrant violation of the law” based on “patently frivolous” objections, “intransigence” and a “brazen refusal to bargain, in violation of solemn obligations [stemming from a prior agreement to abide by the decision of the regional director].” 3 No such flagrant conduct exists here. In this case the Board found that Ex-Cell-0 “responsibly fulfills its legally established collective bargaining obligations. * * * [Ex-Cell-O] merely sought judicial affirmance of the Board’s decision that the election of October 22, 1964 should not be set aside on * * * [its] objections.” This is the only way in which Ex-Cell-0 could obtain a judicial review of the validity of the election. The election was close. Of 196 ballots cast, 102 were cast in favor of the union, 93 were cast against the union and one ballot was challenged. Thus a switching of 5 votes out of 196 cast would have changed the result. The election was held on Thursday, October 22, 1964. To challenge this result Ex-Cell-0 filed timely objections criticizing a letter mailed by the union to the employees on October 19, 1964 (the Monday before the election) and a statement made by a union representative at a union meeting held on October 18, 1964. Ex-Cell-0 contended that the union in the letter had made material misrepresentations of fact, i.e., (1) that Ex-Cell-0 had deprived the employees of wage increases amounting to 140 per hour, and (2) that Ex-Cell-0 was hiring men to fill jobs women had previously performed and intended to continue doing so. It was also originally contended (3) that the union had told employees that if the union lost the election Ex-Cell-O’s principal customer would stop its purchases. It is obvious from their force that any one of these allegations might have influenced enough voters to alter the outcome of the election and, in a proper setting, the fact that the allegations were made could have required that the election be set aside. 4
On October 28, 1965, the NLRB overruled Ex-Cell-O’s objections, adopted the hearing examiner’s findings and recommendations and affirmed the certification of the union as the exclusive representative of the employees. On the following day, Ex-Cell-0 wrote to the union as follows:
We have received the Labor Board’s decision concerning our objections to the conduct of the Union election held October 22, 1964. As you know, .the only way the Labor Board’s decision in this case can be reviewed is through a technical refusal to bargain, and consequently we are unable to meet with you and bargain until the review procedure is carried out.
Subsequently the union on November 18, 1965 filed charges alleging that Ex-Cell-0 was refusing to bargain collectively with it in violation of 8(a) (5) and (1) of the Act.
Ex-Cell-O’s position in this regard recognized the statutory scheme established by the National Labor Relations Act, whereby an employer who doubts the propriety of a certification by the Board has no explicit statutory right to seek direct judicial review of that certification. Judicial review becomes available only after the Board has determined that in failing to bargain with a certified *1055 union the employer has committed a violation of 8(a) (5). Thus an employer who truly entertains doubts concerning the propriety of a Board certification can have those doubts judicially assuaged only by refusing to bargain and appealing a subsequent finding by the Board that in so doing it violated 8(a) (5). 5
Under such circumstances, it seems clear to me that Ex-Cell-O’s violation of 8(a) (5) in this case cannot constitute, per se, a flagrant violation of that section. On the surface, at least, the majority opinion does not say that it does. Rather, it states that it is remanding the ease to the Board
for further proceedings not inconsistent with this opinion and the opinion in Tiidee Products — I, including express determinations whether Ex-CellO’s objections to the certification were frivolous or fairly debatable, and whether “make-whole” compensation or some other special remedy is appropriate. 6
A fair reading of the Board’s order, however, indicates that it has already done precisely what the majority is here ordering it to do. In its order, the Board prefaced its statement of reasons for rejecting the union’s request for monetary relief by saying that its broad authority under section 10(c) to “take such affirmative action * * * as will effectuate the policies of this Act” was limited in three crucial respects:
It is not so broad * * * as to permit the punishment of a particular respondent or class of respondents.
Nor is the statutory direction to the Board so compelling that the Board is without discretion in exercising the full sweep of its power, for it would defeat the purposes of the Act if the Board imposed an otherwise proper remedy that resulted in irreparable harm to a particular respondent and hampered rather than promoted meaningful collective bargaining. [3] Moreover, as the Supreme Court recently emphasized, the Board’s grant of power does not extend to compelling agreement. * * * It is with respect to these three limitations upon the Board’s power to remedy a violation of Section 8(a) (5) that we examine the UAW’s requested remedy in this case. (Emphasis added).
The second limitation indicated by the Board clearly shows that it recognized it was required to distinguish between wrongdoers, i. e., to make the distinction which the majority is here commanding it to make. Not only did it recognize that it was required to make such distinctions generally, but it made them with regard to Ex-Cell-O. “In the first place,” it said, “there is no contention that this respondent acted in a *1056 manner flagrantly in defiance of the statutory policy.” It stated further that
an employer or a union, which engages in conduct later found in violation of the Act, does so at the peril of ultimate conviction and responsibility for a make-whole remedy. But the validity of a particular Board election tried in an unfair labor practice case is not, in our opinion, an issue on the same plane as the discharge of employees for union activity or other conduct in flagrant disregard of employee rights. There are wrongdoers and wrongdoers. Where the wrong in refusing to bargain is, at most, a debatable question, though ultimately found a wrong, the imposition of a large financial obligation on such a respondent may come close to a form of punishment for having elected to pursue a representation question beyond the Board and to the courts. (Emphasis added).
It then went on to analogize Ex-Cell-O’s conduct in this case to that of Quality Rubber.
Later in its opinion, the Board did express the opinion that the distinction between “fairly debatable” and “frivolous” objections to a Board certification was, as a general matter, an unworkable one. 7 Nevertheless, it seems clear to me that in this case, the Board has made the distinction and found that Ex-Cell-O, like Quality Rubber, had adopted a “fairly debatable” position. Even were I to agree with the rationale of Tiidee — I, then, I would be forced to conclude that the present case was not an appropriate one for imposing the “make-whole” remedy there approved. In any event, I would certainly not remand this case to the Board and compel it to make again the determinations it has already carefully made.
I do not, of course, agree with the rationale of Tiidee — I, as I stated in my dissent to that decision. In my opinion, the question of controlling significance in this case revolves around the national policy, declared in the Act which is implicit in section 8(a) (5) 8 and (d) 9 of the Act. This policy was considered in H. K. Porter, which pointed out that the Board was without power to compel a company or a union “to agree to any substantive contractual provision of a collective-bargaining agreement.” 10 In my opinion the limitations imposed by this statute would be breached by the affirmation of the direction to fashion monetary relief which is set forth in the majority opinion. In so directing, the majority opinion anticipates the complaint that it *1057 is exceeding limitations imposed by section 8(d) and H. K. Porter, and in defense of its action argues that it does not transgress the statutory limitation because it is merely ordering relief equal to what would have been agreed to. But since the obligation to engage in collective bargaining does not carry with it the obligation or guarantee to reach any agreement, it is improper to base a remedy on a compelled agreement that was not required to be reached by the statutory provision the union claims was violated. To uphold the remedy here ordered by such verbal circumlocution would be to achieve by rhetoric that which is prohibited in fact.
There is no question, as the examiner and the Board stated, that in some cases the power of the National Labor Relations Board is inadequate to deal with certain cases that confront it. That inadequacy, however, stems from the statute which is controlling and the statute does not authorize the Board to settle all cases that confront it. Rather than imposing such broad power in the Board, or in any other person, the statute makes collective bargaining between the parties, and not judicial or administrative decisions by the court or Board, the final arbiter of the respective issues between the contending parties and this does not compel that there be any agreement between them. This should be perfectly apparent to any person who will merely observe the situation that has confronted the nation in our numerous recurring national public interest strikes. Since the statute does not confer power in the Board or in the courts to compel agreement or concession on any points, the void in this respect is to be filled, if at all, by congressional legislation and not by judicial legislation. As Mr. Justice Black remarked in H. K. Porter:
[I]t is the job of Congress, not the Board or the courts, to decide when and if it is necessary to allow governmental review of proposals for collective-bargaining agreements and compulsory submission to one side’s demands. The present Act does not envision such a process. 11
It was just such usurpation of power under the Wagner Act, supported by ill-advised judicial decisions, as is now proposed by the majority opinion, that led to the 1947 reforms enacted in the Labor Management Relations Act of 1947. But there is even less basis now for the exercise of such power by the Board because section 8(d) of the Act specifically declares that neither party is required to agree to any proposal or to make any concession and Congress made a similar declaration part of the legislative history of the Act. 12 Since Congress has not imposed upon any party the obligation to come to any agreement or to make any concession in any collective bargaining that may be required, the holding that a party who refuses to bargain, for what it and the Board consider to be fairly appealable reasons, may be subjected to damages on the basis of a spurious contractual agreement in which the agreement, terms and conditions would be determined by the Board, is to impose a penalty, in the name of securing statutory compliance, that is greater than the result required by the statute. The penalty thus imposes a liability upon the company in excess of that imposed by the statute and does it through means which violate the public policy which the statute declares. In other words, the complainant would get more as a penalty than the company is required to give by fully complying with the Act and this would all be accomplished by the fiction that the company would have agreed to an agreement it was not required to agree to. Such basis for relief thus has no statutory base and is also grounded in factors which are largely speculative. I would affirm the Board.
. United Steelworkers of America, AFL-CIO v. N. L. R. B., 139 U.S.App.D.C. 146 , 430 F.2d 519 (1970).
. International Union of E., R. & M., AFL-CIO (Tiidee) v. N. L. R. B., 138 U.S.App.D.C. 249 , 426 F.2d 1243 , cert. denied, 400 U.S. 950 , 91 S.Ct. 239 , 27 L.Ed.2d 256 (1970).
. Id. at 252-255, 426 F.2d at 1246-1249.
. Compare, e. g., Gallenkamp Stores Co. v. N. L. R. B., 402 F.2d 525 (9th Cir. 1968) ; N. L. R. B. v. Trancoa Chem. Corp., 303 F.2d 456 (1st Cir. 1962), with Follett Corp. v. N. L. R. B., 397 F.2d 91 (7th Cir. 1968) ; S. D. Warren Co. v. N. L. R. B., 353 F.2d 494 (1st Cir. 1965), cert. denied, 383 U.S. 958 , 86 S.Ct. 1222 , 16 L.Ed.2d 300 (1966).
. American Federation of Labor v. N. L. R. B., 308 U.S. 401 . 60 S.Ct. 300 , 84 L.Ed. 347 (1940) ; see National Labor Relations Art § 9(d), 29 U.S.C. § 159 (d) (1964). When the Taft-Hartley Amendments were under consideration, a proposed House amendment would have provided for direct review of certification proceedings. H.R. 3020, 80th Cong., 1st Sess. § 10(f) (1947) ; see H.R.Rep. No. 245, 80th Cong., 1st Sess. 59-60 (1947). The amendment was approved by the House, but rejected by the Senate and conference committee. See H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 56-57 (1947). See generally Leedom v. Kyne, 358 U.S. 184, 191-201 , 79 S.Ct. 180 , 3 L.Ed.2d 210 (1958) (Brennan, J., dissenting).
. Novel demands for monetary relief on the basis here demanded by the union have been gratuitously endowed by someone with the catch phrase “make-whole” compensation. Such label is a self-serving characterization obviously intended to forestall objection to the amount of damages demanded by characterizing the demand with a favorable title upon the premise that no person could reasonably object to a person being made “whole.” In some circumstances the label may also operate to focus attention more on the question as to whether any monetary relief should be granted than on the question as to the amount of relief.
. Contrary to tho intimations of the majority, however, the Board's rejection of the distinction was not based on its conclusion that it was incapable of making such a distinction in theory or in practice. Compare majority opinion at page 1050 and n. 21, supra. Clearly the Board’s opinion indicates that such distinctions can be made, and the Board constantly makes similar distinctions in 8(a) (5) cases where the sole issue is the employer’s “good faith.” Here the Board was concerned solely with the wisdom of injecting into 8(a) (5) cases another issue which would itself become “a matter of intense litigation” requiring more time to be expended in such cases by an agency which is presently operating nearly at full capacity. Such an additional expenditure of time would also serve to lengthen the period between the time an election is conducted and the time the parties begin to bargain.
. It shall be an unfair labor practice for an employer— to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title.
29 U.S.C. § 158 (a) (5) (1904).
. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession * *
29 U.S.C. § 158 (d) (1964) (emphasis added).
. H. K. Porter Co. v. N. L. R. B., 397 U.S. 99, 102 , 90 S.Ct. 821 , 25 L.Ed.2d 146 (1970).
. Id. at 109 , 90 S.Ct. at 826 .
. See also H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 34 (1947) : This mutual obligation [to engage in collective bargaining] was not to compel either party to agree to a proposal or require the making of a concession.