The opinion
HAYNSWORTH, Chief Judge
(concurring) :
I join Judge Thomsen in his opinion, but the dissenting opinion of Judge Winter prompts an additional comment.
I fully accept the decisions of the Sixth, Seventh and Ninth Circuits, 1 upon which our Brother Winter relies. They dealt only with a contention that bargaining orders should not be enforced because of employee turnover occurring *1357 after commission of the charged unfair labor practices. It was a contention with which the Board had not dealt, and in L. B. Foster, G.P.D., Inc. and Kos-tel Corporation there had not even been an attempt to raise the point in the proceedings before the Board.
If all that we had here was a fresh contention of employee turnover, an order enforcing the bargaining order would occasion me no hesitation. If employee turnover alone was enough to deny enforcement of a bargaining order in the usual case, employers, generally, would be provided with an incentive to prolong the proceedings until such turnover had occurred. Moreover, if employee turnover was relevant in the usual case, litigation of the matter might well involve extensive factual controversy over the possible relation of employment terminations to unfair labor practices charged or uncharged. An administrative rule which would generally foreclose litigation of such tangential factual controversies, with a potential to run to huge proportions, may well be justified.
Here the issue arises primarily with respect to a matter which is at once simpler and far more relevant. The employer offered to prove a change of ownership of the plant and the resultant departure from the scene of the former president and all other officials and supervisors who had been involved in the unfair labor practices. The employer also offered to prove that the new management had a history of peaceful and amicable relations with unions.
This proffer is most unlikely to call for an extended factual inquiry. The factual assertions well may not even be controverted. If they are controverted, unlike inquiry into the circumstances of many employment terminations, evidence tending to prove or disprove the asserted facts should call for no more than a very short hearing, and the resolution of any factual controversy should prove neither difficult nor time consuming.
More importantly, however, the proffered facts are much more highly relevant to the Gissel inquiry. The departure of all of the old oppressors from the scene would inevitably affect the duration of the sense of coercion their unfair labor practices had created. When the Board considers, as it must under Gissel, the likelihood of further unfair labor practices, there hardly could be anything of greater significance than the departure of the old oppressive management and the substitution of new management and supervisory staff with a very different history in dealing with labor organizations.
In the absence of compelling administrative reason, the Board ought not to deprive itself of the opportunity to appraise the prospects for a fair election by looking at the scene at the time of the hearing without an arbitrary limitation to the murkier view available as of the time of the commission of the last charged unfair labor practice. Ordinarily that view should be as of the time of the unfair labor practice hearing. 2 In the usual case the Board should at least have substantial discretionary powers to decline to order further hearings with respect to changing circumstances subsequent to the unfair labor practice hearing. This is one of the cases specifically remanded to the Board for findings under the new Gissel standard as laid down by the Supreme Court, however, and in such a case, when the standard changed after the Board’s initial decision, I can see no reason why the Board should ignore any event or circumstance which would enlighten the fact-finding process under the new standards whether or not those events occurred before or after the initial unfair labor practice hearing. In the usual case the Board’s view, as a practical matter, must be *1358 closed at the time of the unfair labor practice hearing, but in this case the Board was specifically directed to take a new look to answer the newly relevant factual questions, and, in doing so, it ought to open the record to any evidence which has potential relevance to those factual issues.
I thus have no quarrel with the cases upon which the dissent relies, but those decisions do not reach this case.
. G.P.D., Inc. v. N.L.R.B., 6 Cir., 430 F.2d 963 ; N.L.R.B. v. Kostel Corporation, 7 Cir., 440 F.2d 347 ; N.L.R.B. v. L. B. Foster Company, 9 Cir., 418 F.2d 1 .
. Apparently the change in management occurred before the unfair labor practice hearing, for there are incidental references to such things as the resignation and departure of the former president in the transcript. These were not developed for they had no relevance to the criteria which then governed the Board’s decision.