The opinion
ANDERSON, Circuit Judge
(concurring) :
I concur in Judge Kaufman’s opinion which supports the Board’s contention that on the record as a whole there is ample evidence to justify its finding “that the misrepresentation here was highly likely to affect the outcome of the election.” The Board, however, in its brief and oral argument asserted that “the test is not whether employees were actually or necessarily misled, but only that it is ‘sufficiently likely that it cannot be told whether they were or not.’ ” For this proposition the Board cites Baumritter Corp. v. NLRB, 386 F. 2d 117, 120 (1 Cir. 1967) and NLRB v. Clearfield Cheese Co., 322 F.2d 89, 93-94 (3 Cir. 1963). As I read the opinion in the present case, it in no way expresses or implies approval or adoption of the Board’s statement of the test as the one to be used in cases such as this where, as the Regional Director found, the statement made by the employer was literally true, but it did not describe its context or tell the whole story. The adoption of the test asserted by the Board in these circumstances would lead to a deprivation of the employer’s First Amendment right to freedom of speech at the mere whimsey of the Board.