The opinion
WELLFORD, Circuit Judge,
dissenting.
I respectfully dissent from the court’s opinion in this case. While I agree with the court’s conclusion that the election should be set aside, I would not enforce the Board’s imposition of a bargaining order.
The Board’s findings of some improper activities by the Company are supported by substantial evidence, and warrant the order of a new election. I disagree with the court’s conclusion, however, first of all insofar as it relies on the withholding of the wage increase as a basis even for setting aside the election. In this situation, the employer seems to be in a genuine dilemma.
In Heckethorn Mfg. Co., 208 NLRB 302 , 306 (1974), enf’d. 504 F.2d 425 (6th Cir. 1974), this court upheld a finding by the Board that an employer’s withholding of a wage increase until after a union election was over was not violative of the Act. In Heckethorn, to determine whether the company had violated the Act, the Board looked at (1) whether there was evidence indicating that the company intended the withholding of the wage increase to have an effect on the outcome of the election, or whether employees believed such to be the case, and (2) whether the company sought to capitalize on the absence of a wage increase by connecting the absence with the union or the employees’ support of the union. In the present case, there is no indication that the company intended to affect the outcome of the election, or that employees believed it intended to do so. Indeed, the company president assured the employees on October 19 that “[i]n any event, when this election is over, you’ll be getting your raises no matter how it turns out.” In addition, the evidence does not indicate that the company sought to capitalize on the absence of a wage increase. Employees were informed that the wage increase was being withheld because the employer believed federal law prohibited the granting of such an increase pending the union election. There was no attempt to blame the union or the employees who supported the union. Under these circumstances, the Board’s finding that the withholding of the wage increase was violative of the Act does not appear to be supported by substantial evidence, especially if that withholding is to be treated as a basis for ordering the employer to recognize a union and bargain with it.
The court’s enforcement of the Board’s bargaining order does not, moreover, seem justified. Prior decisions by this court indicate that the ALJ’s findings and analysis in this case are insufficient to support such a drastic remedy. The usual deference given to NLRB findings is lessened when the *1078 Board orders “the strong and less preferred remedy of a bargaining order without holding a new election.” United Services for the Handicapped v. NLRB, 678 F.2d 661, 664 (6th Cir.1982). Accord, NLRB v. Rexair, Inc., 646 F.2d 249, 250 (6th Cir.1981). In addition, bargaining orders have not been enforced by this court when
“[t]he Board made no findings or detailed analysis as to the residual impact ..., or the likelihood of recurrence, of any of the unfair labor practices,” or when they are “based on conclusory statements unsupported by sufficient facts” .... or when the Board’s reasoning consisted simply of “a litany, reciting conclusions by rote without factual explication.”
United Services for the Handicapped, supra, 678 F.2d at 664 , citing NLRB v. Rexair, supra.
In United Services for the Handicapped, supra, this court remarked that, under NLRB v. Gissel Packing Co., 395 U.S. 575 , 89 S.Ct. 1913 , 23 L.Ed.2d 547 (1969), the analysis of the Board must concentrate on whether a-fair election can be held, and on the present effects of past coercive unfair labor practices. In that case, the Board had found several overt and direct threats of closure if unionization occurred, and that the employer discharged six employees. The court found that the threats and harassment were given, a continuing effect by the permanent discharge of employees, and that this strongly supported a conclusion that the fair election process had been tainted. 678 F.2d at 664-65 . There has been no discharge in the case sub judice.
Donn Products, Inc. v. NLRB, 613 F.2d 162 (6th Cir.1980), seems analogous to the situation in this case. This Court found in Donn Products that the employer had engaged in unfair labor practices, but there was nothing in the record to indicate that any of the violations were of such a substantial and continuing nature as to warrant a bargaining order. The court observed that the Board had made no findings or detailed analysis as to the residual impacts or continuing effect, or the likelihood of recurrence, of any of the unfair labor practices, and that while there were threats, there was no discharge effectuated during the organizing campaign. The Donn court noted:
There was a hard-fought campaign, but the classic tactics of discharge and widespread discrimination against and harassment of union sympathizers were not present. Though we have sustained the finding that there was a threat of plant closing, the Board has determined that the actual closing which followed the union’s loss of the election was for economic reasons.
613 F.2d at 166 . If anything, the acts of the employer in Donn were more serious than were those of Southern Moldings.
While in the case at bar the ALJ made detailed findings with regard to the company’s violations of the Act, there was a failure to analyze the residual impact or likelihood of recurrence of these actions. The fact that the employer may have some continuing hostility towards the union is not enough to justify a bargaining order; hostility to the union’s organization efforts often exist in these situations. The employer in this case in fact posted an overly broad no-solicitation rule that constituted an unfair labor practice. The overbreadth of the rule was cured, however, prior to the union election; this indicates that a violation would not recur. Solicitations continued to occur, in fact, on the employer’s premises and there was no serious disciplinary action taken. The speeches by the president of the company violated the Act only because they contained predictions as to the effect of unionization that may not have been substantiated by objective facts. There was no indication in these speeches, which involve some first amendment considerations, of vindictiveness or threats that he would close the plant or penalize employees who supported the union. The withholding of the wage increase, even if it was wrongful, was cured by granting the increase after the election, in the face of the union’s challenge to the outcome, and making it retroactive to the date on which it normally would have been granted. In sum, the ALJ’s findings in this case, which were adopted by the panel majority, seem similar to that found by this court in NLRB v. Rexair, Inc., supra:
*1079 The ALJ simply recites his findings of the Company’s improper activities and then states that a cease-and-desist order could not cure these wrongs. There is no analysis of the residual impact or possible recurrence of these violations, nor explanation why a cease-and-desist order would fail to prevent possible recurrence.
646 F.2d at 251 .
Gissel itself involved situations where there were discharges of union sympathizers, spying on union meetings, polling employees about union preferences, persistent threats of discharge to pro-union employees, and other discriminatory actions taken sufficient to make it evident that “the possibility of erasing the effects of past practices and of ensuring a fair election ... by the use of traditional remedies ... is slight....” 395 U.S. at 614 , 89 S.Ct. at 1940 (emphasis added). I do not feel that the facts in this case, or the Board’s analysis of the facts, demonstrate that the possibility of a fair election at the Southern Moldings plant is only slight, nor that the unfair labor practices here are comparable to those considered in Gissel.
I would, accordingly, enforce the Board’s order but only to the extent of ordering a new election in this case.