The opinion
HAYS, Circuit Judge
(dissenting):
This case illustrates the particularly pernicious effect of a case which erroneously decided in the first place, is gradually broadened to cover other situations never contemplated by the first decision.
In NLRB v. Flomatic Corporation, 347 F.2d 74 (2d Cir. 1965), this court decided that the Board could not, under the circumstances there presented, employ a bargaining order to correct a situation in which it had found a Section 8(a) (1) violation. The relevant circumstance on which the court principally relied was that the Section 8(a) (1) violation was not “flagrant.”
“There was no aggressive or planned campaign aimed at dissipating union strength by resort to threats, discharges or refusals of recognition. On the contrary, the Board found that the employer was never asked to bargain, and there was evidence that he even expressed a willingness to do so if the employees wanted union representation.” 347 F.2d at 78 .
The court went on to say:
“[T]he courts have implicitly recognized that the bargaining order remedy should be applied with restraint, and accordingly have enforced such orders in cases of §§ 8(a) (2), 8(a) (3) and 8(a) (5) violations, some of which were coupled with or included § 8(a) (1) transgressions. [Citing cases.] Those cases involved more glaring violations than the one found here, and where as in § 8(a) (5), an employer has refused to bargain, under circumstances in which he was under a duty to do so because the union enjoyed the status of exclusive bargaining agent, the remedy may be thought uniquely appropriate. No court, however, has held that a borderline, un-aggravated § 8(a) (1) violation, standing alone, occurring prior to an election, warranted a bargaining order.” 347 F.2d at 79 .
Thus it is perfectly clear that Flo-matic, as it was originally decided, stood *114 solely for the narrow proposition that where there was only a non-flagrant Section 8(a) (1) violation, the Board could not order the employer to bargain.
Flomatic was first extended beyond its •original limits in NLRB v. Better Val-U Stores, of Mansfield, Inc., 401 F.2d 491 (2d Cir. 1968). In that case there was not only a violation of Section 8(a) (1) but also a violation of Section 8(a) (3) by the discharge of an employee. In spite of the express language of Flomatic as to “discharges” and “Section 8(a) (3)” violations, quoted above, the court said “[W]e feel compelled by the facts in our case to follow the majority view in Flomatic.”
However, in Better Val-U the court said:
“To require an employer to reinstate an employee with back pay, to cease and desist from further unfair labor practices, and to post appropriate notices are proper and accepted remedies for violations of Sections 8(a) (1) and 8(a) (3). See, e. g., NLRB v. A. P. W. Products Co., 316 F.2d 899 (2 Cir. 1963); NLRB v. Firedoor Corp. of America, 291 F.2d 328 (2 Cir.), cert. denied, 368 U.S. 921 , 82 S.Ct. 242 , 7 L.Ed.2d 136 (1961). Accordingly, to this extent we grant enforcement of the Board’s order without further comment. However, the Board’s imposition of a bargaining order where no violation of Section 8(a) (5) was found to have occurred is a more troublesome matter. * * *
The controlling test in this circuit as to whether a bargaining order is appropriate in a situation where there was no finding of a refusal to bargain by the employer in violation of § 8(a) (5) of the Act was announced by Judge Anderson in NLRB v. Flomatic Corp., 347 F.2d 74 (2 Cir. 1965).” 401 F.2d p. 493.
Thus there can be no doubt that, although the Flomatic rule was extended by Better Val-U to cover a Section 8(a) (3) violation, there was no intention to extend that case to cover a situation where the Board had found a Section 8 (a) (5) violation and was upheld by the court in such a finding. In fact in such a case, the court said in Flomatic, a bargaining order “may be thought uniquely appropriate.”
During the period since Flomatic this court has on several occasions enforced the Board’s bargaining orders on the basis of a finding of Section 8(a) (5) violations based on a card count. See NLRB v. Big Ben Department Stores, Inc., 396 F.2d 78 (2d Cir. 1968); Bryant Chucking Grinder Co. v. NLRB, 389 F.2d 565 (2d Cir. 1967); NLRB v. Consolidated Rendering Co., 386 F.2d 699 (2d Cir. 1967); NLRB v. Divigard Baking Co., 367 F.2d 389 (2d Cir. 1966); NLRB v. Gotham Shoe Mfg. Co., 359 F.2d 684 (2d Cir. 1966); Irving Air Chute Co. v. NLRB, 350 F.2d 176 (2d Cir. 1965).
The majority, overruling sub silentio all the intervening cases, now pushes Flomatic an enormous distance farther than it has previously been extended and condemns a bargaining order in a case where there was a violation of the duty to bargain under Section 8(a) (5) and where the court has upheld the Board in its finding of such a violation.
It is obvious that the result reached here is not only not required by Flomatic and Better Val-U but that it is directly at variance with the reasoning of those cases. Moreover it is contrary to numerous previous decisions of this court and contrary to the holding of the Supreme Court in such cases as Franks Bros. Co. v. NLRB, 321 U.S. 702 , 64 S.Ct. 817 , 88 L.Ed. 1020 (1944).