The opinion
LUMBARD, Circuit Judge,
concurring and dissenting:
I agree with all of the court’s opinion except the acceptance of the Board’s treatment of The Peelle Co. I would not grant enforcement as to that employer.
The Peelle Co. was a “group III” employer which this court held legitimately left the multi-employer bargaining group in 1978. N.L.R.B. v. Independent Ass’n of Steel Fabricators, Inc., 582 F.2d 135 (2 Cir. 1978), cert. denied, 439 U.S. 1130 , 99 S.Ct. *149 1049 , 59 L.Ed.2d 91 (1979). The only charge against Peelle is that it refused to bargain with Local 455 and that it lacked “a rational, good faith doubt as to the union’s majority status.” The administrative law judge found Peelle had such a rational good faith doubt, and his decision is supported by the record. The Board reversed, citing to nothing in the record, ignoring the procedural history of this case and failing to deal with the most important basis for the administrative law judge’s decision. The majority enforces the order against Peelle not because it finds evidence in the record or support in the law for the Board, but because it can posit hypothetical facts beyond the record that might support the Board.
The administrative law judge found for Peelle because much time had passed since Peelle had negotiated with Local 455, because picketing had ceased and because 30 of the 37 employees allegedly represented by Local 455 had ceased paying dues and had been suspended by the Local. Of the seven active members, four were on pension.
The Board reversed. It ruled that passage of time was not probative of Peelle’s “good faith rational doubt” as to Local 455’s majority status notwithstanding — and without mentioning — that Peelle refused to bargain:
—three years after the expiration of its last contract with Local 455;
—one year after Local 455 struck;
—six months after Peelle legitimately left the multi-employer group bargaining with 455;
—four weeks after this court suggested that the passage of time might have diminished support for Local 455. Id. at 151 .
The Board nowhere deals with the administrative law judge’s determination that, by suspending 30 of 37 members for non-payment of dues, Local 455 might logically be considered to have lost the allegiance of the men. 1 This point seems to trouble the majority, for it spends two and a half pages suggesting reasons why men suspended for non-payment of dues might still support their union. The majority hypothesizes that the men were financially hard pressed after a long strike and withheld their dues not because they did not support the union but because they could not afford the payments. But the record is silent on this point. Some employees quit paying dues before the strike, others quit during the strike, and some found employment elsewhere.
The majority hypothesizes that the employees stopped paying dues as they believed the union could do nothing for them because Peelle had moved its manufacturing operations to Canada. The majority supposes that “it is quite likely that employees, if the question were put to them, would have supported the union’s continued representation of any of their interests that might be pursued against Peelle.” This does not appear in the record. Indeed, when Peelle declined to bargain with Local 455 it asked the union to provide some evidence that it still had support from the men. The union failed to do so then, and the majority points to no evidence submitted by the union in these proceedings.
The majority cites one case to support its hypothetical reasoning, N.L.R.B. v. National Seal Corp., 127 F.2d 776 (2d Cir. 1942). But National Seal Corp., did not involve employees who were actually suspended by their union. There the employer tried to prove the men were suspended because of a clause in the union’s constitution, but failed to do so. We subsequently pointed to the absence of discipline for non-payment of dues as showing that employees retained loyalty to a union. N.L.R.B. v. Master Touch Dental Laboratories, Inc., 405 F.2d *150 80, 83 (2d Cir. 1968). Here we have such discipline. The Board ignored it; the majority does likewise.
By enforcing the Board’s order against Peelle, the majority rules that a union can suspend the vast majority of union members for non-payment of dues, yet still claim the loyalty of those members and win so long as an appellate panel can dream up reasons neither supported in the record nor enunciated by the Board as to why the workers might still support the union. I cannot agree with such a holding. Like the administrative law judge, I would deny enforcement of the Board’s order against The Peelle Company.
. The Board dismissed Peelle’s arguments by referring to its determination that Achilles Construction Co., Inc., another Group III employer, failed to establish a reasonable doubt as to Local 455’s continuing majority status. But as Achilles, of seven union members two had retired and only two had terminated their membership in Local 455; three of five active workers were still union members in good standing. I do not think the Board’s treatment of Achilles suffices to support its order against Peelle, where 30 of 37 employees quit the union.