The opinion
MacKINNON, Circuit Judge
(concurring) :
The representation election here involved occurred 61/2 years ago. The result was close. A switch of five votes would have changed the result. At the time of the 1964 election there were 208 employees in the bargaining unit whereas in 1970 when the Board issued its decision there were 530 employees in the unit of whom only 134 had been eligible to vote in the 1964 election. That election thus related to personnel that are no longer present and to outdated issues and a controlling majority of new employees who had no opportunity to vote will be be affected by the stale vote of a small minority. Because of the delay of the case in reaching us and the prejudicial *1066 consequences referred to, my first preference would be to order a new election. 1 However, since my colleagues do not agree, I come to consider the company’s challenge to the election. It is my view that the electioneering by the union was very close to the borderline of being prejudicial in a material degree. Some of the statements by the union were tricky distortions and overstatements of the truth and were aimed at the ignorance and gullibility of the workers and their natural desire for higher wages but they were not complete misrepresentations. The impropriety of the charges was also compounded by the timing of their release — the day before the election. I do not agree that the company had sufficient time to answer the charge and to properly disseminate their answer. However the contents of the release related to an issue which was not completely new to the pre-election campaign. Thus while I consider it particularly unworthy for one seeking to represent workers in a fiduciary capacity to indulge in such questionable tactics to secure their acquiescence, I cannot say there was not some basis in fact for the Board’s determination that the statements were not such a substantial departure from the truth, or that they did not have such a substantial impact on the election, as to justify setting it aside. With these qualifications I concur in Part I of the opinion and in the result announced in Part II. I also concur in the suggestion that the extraordinarily long delay which preceded the Board’s disposition of this case should call for some review by the Board of the procedures which caused it in an attempt to determine whether the consequences of delay which are here present might be alleviated in the future.
. See Clark’s Gamble Corporation v. N.L.R.B., 407 F.2d 199, 201 (6tli Cir. 1969) where a delay of 35 months was considered sufficient for the court to remand the case to the Board to determine whether the passage of time rendered the bargaining order inappropriate.