Conair Corporation v. National Labor Relations Board, Local 222, International Ladies' Garment Workers' Union, Afl-Cio, Intervenor

WALD, Circuit Judge,

dissenting:

I dissent. I believe that the Board had authority under the National Labor Relations Act to order bargaining with the Union based upon its findings, accepted by the majority of this panel, that no other remedy could “dissipate the lingering effects of [Co-nair’s] massive and unrelenting coercive conduct” which “has foreclosed any possibility of holding a fair representation election,” and that “a remedial bargaining order is the only way to restore to employees their statutory right to make a free and uncoerced determination whether they wish to be represented in collective bargaining by a labor organization.” Conair Corp., 261 NLRB 1189 , 1193 (1982). In the face of such findings, my colleagues weakly profess frustration and vexation that “employers who offend the law most egregiously will escape the most stringent remedy in the NLRB’s arsenal.” Maj. Op. at 1378. Yet they are forced to comb through the words of the statute and thousands of pages of its extensive legislative history for the few thin strands they weave into a statutorily-based rejection of the Board’s authority to do anything about one of the worst cases of unfair labor practices it has encountered in its fifty year history. I find it paradoxical, yea incomprehensible, that they can accept the Board’s findings of massive violations of the Act by the Employer, undermining embryonic labor support, and then infer from the “purpose” of the Act an intent of Congress to deprive the Board of the only remedy it believes can at some point in the *1388 near future restore the employees’ right to make a free choice to have or not have a union. Either the Board is totally offbase in its findings, or my colleagues have usurped for themselves a mighty responsibility in emasculating the Board’s remedial authority in extreme cases to fulfill its congressional mandate to “effectuate the policies of the Act.”

I. The Board’s Findings

The Board found not only that Conair had violated the Act, but that the violations had been so outrageous and pervasive that, in the Board’s words,

neither our traditional remedies nor even our extraordinary access and notice remedies can effectively dissipate the lingering effects of Respondent’s massive and unrelenting coercive conduct. By this conduct, Respondent has foreclosed any possibility of holding a fair representation election. Under these exceptional circumstances, we find that a remedial bargaining order is the only way to restore to employees their statutory right to make a free and uncoerced determination whether they wish to be represented in collective bargaining by a labor organization.

261 NLRB at 1193. It was on the basis of these findings that the Board ordered the Employer to bargain with the Union, in spite of the Union’s inability to demonstrate, through authorization cards or otherwise, that it had at any time obtained the support of a majority of the employees eligible to vote. The Board also found, however, that there was a reasonable basis to conclude that the Union would have enjoyed majority support but for the Employer’s unfair labor practices, relying primarily upon the fact that the Union at one point had the support of forty-six percent of the employees. Id. at 1194.

Certainly conclusions as to the predicted effect of the Employer’s illegal practices on the election process, the ineffectiveness of alternative remedies, and the probable effect of that illegal conduct on the Union’s original ability to obtain majority support involve, even more than ordinary questions of fact, the utilization by the Board of its accumulated experience and expert judgment. The Supreme Court has underscored the necessity for judicial deference when reviewing such determinations. Commenting on the assertion by a circuit court that a cease and desist order and the posting of notices ordinarily would effectively remedy unfair labor practices, the Court stated, “[i]t is for the Board and not the courts ... to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity.” NLRB v. Gissel Packing Co., 395 U.S. 575 , 612 n. 32, 89 S.Ct. 1918 , 1939 n. 32, 23 L.Ed.2d 547 (1969). Of course, the Board must always support its conclusions with a reasoned explanation and substantial evidence in the record. It did so here. 1

*1389 In evaluating the impact of the unfair labor practices in Conair, the Board followed its analysis in United Dairy Farmers Cooperative Association, 257 NLRB 772, 774 (1981) (United Dairy II), which identified the “gravity, extent, timing, and constant repetition” of violations as the key factors bearing upon whether the employer’s illegal conduct was so outrageous and pervasive as to foreclose the possibility of a fair election. 261 NLRB at 1192. Summarizing its findings as follows, the Board laid heavy stress on the repetition and insidious timing of the violations committed by this Employer:

The chilling effect on employee rights of a single discharge or threat of plant closure is difficult enough to erase. Several repetitions of these and other violations of the Act multiply the strength and duration of the impression left on employees. The same multiplier effect results from the manner in which Respondent timed its unlawful conduct — i.e., swift and severe initial retaliation against the Union’s organizational efforts, a lengthy campaign of unfair labor practices, an increase in violations as the election neared, and two unlawful discharges even after the election. In moment and duration, the timing of Respondent’s unfair labor practices underscored its enduring resolve to oppose unionization by any means and deeply imprinted on employee memories the drastic consequences of seeking union representation.

*1390 Id. at 1193. I agree wholeheartedly with the majority that “we have no cause in this case to second guess the NLRB’s expert appraisal of the quality and effects of Co-nair’s unlawful activities.” 2 We have today unanimously upheld the Board’s judgment that the Employer’s coercive conduct has left such an indelible mark on the workforce that not even the Board’s extraordinary notice and access remedies would restore to employees their right to make an un-coerced decision about union representation.

The Board also found that it was reasonable to conclude that the Union would have enjoyed majority support but for the Employer’s egregious conduct. The Board’s finding on this issue, which I consider critical, 3 rests on precisely the same kind of expertise and the same body of precedent, and is thus entitled to the same degree of deference as its other conclusions concerning the seriousness and probable impact of particular unfair labor practices. Yet the majority swiftly passes over the Board’s conclusion as to the probable effect of the coercive practices on the Union’s initial ability to gain majority support, asserting that “[ajbsent a card majority, the Board cannot forecast with any degree of reliability how the employees would have responded in a free election.” Maj. Op. at 1378-1379. This cavalier rejection of the Board’s expert judgment is inconsistent with the posture of deference properly assumed with respect to the Board’s closely related conclusions unanimously upheld here. Furthermore, the main study cited in support of the majority’s statement actually confirms the Board’s premise that serious unfair labor practices by employers have a significant effect on the level of support for the union. 4 Finally, in this case the majority agrees with the Board that the campaign of coercion was exceptionally intense and pervasive. It is in light of that assessment that I briefly review the factual basis for the Board’s conclusion. The Union began its organizing campaign in March and by April 11 had the support of about forty-six percent of the employees. 261 NLRB at 1205. Yet only days after the onset of the Employer’s campaign on April 4, a group of twenty-five to thirty employees approached the Union, stating that the Employer’s threats had made them fear losing their jobs; several requested the return of their cards. Id. at 1191. The Union secured only fourteen authorization cards after April 11, the day the strike began. Id. at 1205 n. 15. If the Employer’s conduct had such an immediate impact on employees who had already expressed their support for the Union, it was certainly reasonable for the Board to conclude that it may have had an equally inhibiting impact on the relatively small number of undecided employees— about fifteen — that would have sent the union over the fifty percent mark and into majority status for recognition purposes. There is little question but that the Union would have continued to gain adherents but for the Employer’s relentless anti-union *1391 campaign. The Board’s conclusion in this respect is thus supported by adequate reasoning, established Board precedent concerning the impact of various unfair labor practices, and substantial evidence in the record.

II. The Board’s Authority to Issue a Non-Majority Bargaining Order

The Board rested its claim of statutory authority in large part on the Supreme Court’s opinion in NLRB v. Gissel Packing Co., 395 U.S. 575 , 89 S.Ct. 1918 , 23 L.Ed.2d 547 (1969), and on subsequent judicial interpretations of that decision. I, too, find support for the Board’s authority in the language and reasoning of these cases, recognizing that, as always with Supreme Court dictum and even with Supreme Court holdings, what the Court giveth it can as easily taketh away. In any event, because the issue of nonmajority bargaining orders has been smoldering on the Board and in this court for decades, I believe a searching inquiry into the language, legislative history, and underlying policies of the Act, as well as the practical effects on labor relations of upholding or overturning the Board, is called for before pronouncing judgment on either side of the issue. I find in none of these sources, singly or cumulatively, any contrary indicators to what the Supreme Court appeared to be saying in Gissel. On the contrary, I conclude from my inquiry that the issuance of a non-majority bargaining order under exceptional circumstances like these may well be the only way to “effectuate the policies of the Act.”

A. The Gissel Decision and Category I Cases

In Gissel, the Court decided that a majority of union authorization cards, unambiguous on their face, constituted “convincing evidence of majority support.” If an employer refused to bargain with a union that had obtained a majority of valid cards, and at the same time committed independent unfair labor practices tending to undermine the union’s majority strength and impede the election process, the Board could issue a bargaining order as a remedy even if the union subsequently lost the election.

The Court went on to summarize in some detail the factors that determine the appropriateness of a bargaining order in three categories of cases:

Despite our reversal of the Fourth Circuit below in Nos. 573 and 691 on all major issues, the actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter. While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.” The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices.

The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior.

395 U.S. at 613-14 , 89 S.Ct. at 1939-40 (citations omitted) (emphasis added). The *1392 Court thus reinforced its approval of the “Category I” non-majority bargaining order described by the Fourth Circuit by indicating that a showing of majority support is necessary only in “less extraordinary cases” falling into Category II. The Court also described a third category of even less serious offenses in which no bargaining order was appropriate without an election. Id. at 615 , 89 S.Ct. at 1941 .

The Court’s description of Category I cases of outrageous and pervasive violations where a bargaining order is warranted “without need of inquiry into majority status” is characterized by the majority as mere dictum, a palliative to the rejected and presumably dejected Fourth Circuit. 5 I am not as certain as the majority that the “dictum” can be so easily dismissed. In one of the four cases decided by the Court in Gissel, the Court appears to have applied the analysis it described as appropriate for Category I eases:

In Sinclair, No. 585, the Board made a finding, left undisturbed by the First Circuit, that the employer’s threats of reprisal were so coercive that, even in the absence of a § 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of those threats. The Board therefore did not have to make the determination called for in the intermediate situation above that the risks that a fair rerun election might not be possible were too great to disregard the desires of the employees already expressed through the cards.

Id. (footnote omitted). As the majority suggests, the court’s statement is cryptic, and is conceivably open to an interpretation that its reference to the “absence of a § 8(a)(5) violation” alludes only to the employer’s possible lack of bad faith in refusing to bargain. See Maj. Op. at n. 85. But the language is also open to a reading that the Court did not feel it necessary to inquire into the majority status of the union in disposing of the Sinclair case. Because the extreme nature of the employer’s coercive conduct made a fair election impossible and therefore placed Sinclair into Category I, the Board did not have to meet the Category II requirements of showing that the union had obtained a card majority and that a fair election was too unlikely to disregard this showing of majority support. This court has previously adopted the latter interpretation, declaring that the Supreme Court in Gissel “approved the bargaining order entered against Sinclair without a showing of a prior union majority because the facts indicated ‘exceptional’ or ‘outrageous’ unfair labor practices.” Amalgamated Clothing Workers v. NLRB, 527 F.2d 803 , 808 (D.C.Cir.1975), cert. denied sub nom. Jimmy Richard Co. v. NLRB, 426 U.S. 907 , 96 S.Ct. 2229 , 48 L.Ed.2d 832 (1976).

Virtually every other court I know of has interpreted the Gissel decision similarly, assuming the existence of an extreme category of cases in which a bargaining order may issue in the absence of a card majority. 6 Only recently, however, did the case materialize. 7 In United Dairy Farmers Coopera *1393 tive Association v. NLRB, 633 F.2d 1054 (3d Cir.1980), the Third Circuit faced the issue for the first time in a union appeal from the refusal by a divided Board to issue a bargaining order in a Gissel Category I situation. 8 After a careful analysis of the Gissel decision and its rationale, the court held that “the Board has the remedial authority to issue a bargaining order in the absence of a card majority and election victory if the employer has committed such ‘outrageous’ and ‘pervasive’ unfair labor practices that there is no reasonable possibility that a free and uncoerced election could be held.” Id. at 1069 .

Nonetheless, despite the Gissel pronouncement and a contemporary consensus of circuit court interpretations of it to the effect that the Board may issue a non-majority bargaining order to counter extraordinarily flagrant employer violations, our court decides today that the Board has no statutory authority ever to issue such an order. See also Teamsters Local 115 v. NLRB (Haddon House), 640 F.2d 392 (D.C. Cir.1981) (earlier misgivings about such authority). 9 With the understandable queasiness experience brings from relying too heavily on predictions of what the Supreme Court will do in the future based on what it has said in the past, I turn now to an examination of the language and legislative history of the Act to see whether the Board’s interpretation of Gissel will hold.

B. The Language of the Act

The Board points to the broad remedial mandate of section 10(c), empowering it to order a party “to take such affirmative action ... as will effectuate the policies of [the Act]” once it has found a violation. The Employer asserts and the majority now decides that the Board’s seemingly wide authority under section 10(c) is in fact securely bound by a fundamental principle of majority rule incorporated in section 9(a) which acts as an absolute limitation on the Board’s authority to issue a non-majority bargaining order, whatever the circumstances.

Section 9(a) states in relevant part: “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining ...” 29 U.S.C. § 159 (a). The Employer and the panel majority read the exclusive majority representation rule of section 9(a) into section 7, which provides that “[e]mployees shall have the right to self-organization, ... to bargain collectively through representatives of their own choosing, ... and shall also have the right to refrain from any or all such activities.” 29 U.S.C. § 157 . They say that together the two sections mean that the employees’ right to bargain through representatives chosen by majority rule is violated by any Board order that requires an employer to bargain with a union that cannot demonstrate that it has at any time enjoyed the support of a majority of the employees, regardless of the egregiousness of the employer’s conduct. *1394 In addition, the Employer points to section 8(a)(2), which makes it an unfair labor practice for an employer “to dominate or interfere with the formation ... of any labor organization,” 29 U.S.C. § 158 (a)(2), and which has been interpreted to prohibit an employer from voluntarily- recognizing a union that represents only a minority of its employees. International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731 , 81 S.Ct. 1603 , 6 L.Ed.2d 762 (1961).

Sections 9(a) and 8(a)(2) define conduct constituting unfair labor practices on the part of employers. They appear to have no direct application to the scope of the Board’s remedial authority when employers have been found guilty of unfair labor practices. Congress most assuredly knew how to limit the Board’s authority. For example, section 9(b), following directly after section 9(a) and dealing with determination of bargaining units, clearly limits the Board’s power. It provides “that the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit.” 29 U.S.C. § 159 (b). It seems obvious to me that neither section 9(a) nor any other section of the Act dealing with unfair labor practices by an employer can be automatically read as an explicit limitation on the authority of the Board to take remedial action as to those same unfair labor practices. 10

The majority’s argument that section 9(a)’s majority principle, in conjunction with section 7’s guarantee of freedom of choice, limits the Board's remedial authority in all cases and for all time ignores the quintessential paradox of this case. The Employer has been found to have engaged in an intense campaign of egregious unfair labor practices in complete and deliberate disregard of the section 7 right of employees freely to choose their bargaining representatives. Now the Employer — and the panel majority — emerge as the champions of that very right of choice: they would invoke that right as an absolute bar against the Board’s authority to remedy the Employer’s violation by issuing a bargaining order. But in fact, by my colleagues’ own admission they simply leave the employees in an eternal limbo, for the Board has determined that a bargaining order in the short run is the only means of restoring to the employees their statutory right freely to choose whether or not to be represented in the long run by a union. Thus both the Board and the panel/Employer assert the same statutory sections as the basis for their diametrically opposite positions on the permissibility of a non-majority bargaining order. I am particularly reluctant to reject the Board’s construction of its remedial authority on the basis of a purported conflict with the very statutory language it is claiming to implement. The bottom line here is how the employees, having been subjected to relentless employer pressures not to choose a union, can be best restored to some kind of equilibrium in which they can choose freely for or against the Union. The Board, as the expert in the field, says this can happen only if a short-term bar *1395 gaining order is put into effect; the panel says that such an order is against statutory policy and that the employees therefore should be left in the status quo. Certainly the language of the statute alone does not compel Board paralysis of this sort.

C. Legislative History

There is nothing in the legislative history of the Wagner Act or subsequent amendments to indicate that Congress meant to withhold this remedial power from the Board. The majority’s citations prove only that Congress provided a mechanism for employees in the usual situation to pick or reject their union by majority rule and required employers to abide by that decision. There is not a single word, however, to suggest that, if a fair election could not be held because of employer interference, the Board’s remedial powers were absolutely restricted by majority rule.

Of course, Congress in passing the Wagner Act embraced the principle of majority rule in the selection of bargaining representatives by employees. S.Rep. No. 573, 74th Cong., 1st Sess. 13-14 (1935); H.R.Rep. No. 972, 74th Cong., 1st Sess. 18-19 (1935). It did so to obviate refusals by employers to recognize a labor organization that represented the majority of employees, and their attempts instead to divide employees by bargaining with individuals or with a company union that represented only a minority. Congress thus associated minority bargaining by the employer with collusive and complacent company unions; it was also worried about destructive competition among unions caused by employer bargaining separately with factions or individuals. See H.R.Rep. No. 972 at 19. These dangers arise where an organized majority is denied recognition; they have nothing to do with a situation like this where the Board orders the employer to bargain with the only employee organization that reasonably could be expected to have gained majority support but for the outrageous and pervasive unfair labor practices of the employer.

Throughout the Act’s passage, the principle of majority rule was always discussed in the context of an employer’s bargaining obligations or the employees’ representation choices; it was never discussed as a limitation on the Board’s powers. Indeed, the Act’s major sponsor, Senator Wagner, explicitly approved the possibility of a remedial bargaining order in the absence of a current majority when he approved the result in Texas & New Orleans Railroad Co. v. Brotherhood of Railway & Steamship Clerks, 281 U.S. 548 , 50 S.Ct. 427 , 74 L.Ed. 1034 (1930). See Hearings on H.R. 6288 Before the House Comm, on Labor, 74th Cong., 1st Sess. 21-22 (1935) (statement of Sen. Wagner). In that case, decided under the Railway Labor Act, the Supreme Court upheld the order of the district court “disestablishing” a company union which could show current majority support, and reinstating the union that had enjoyed majority support before the company’s illegal and eoercive campaign against it. The company was ordered to recognize the union that currently had only minority support until the employees rejected it in a fair and un-coerced election. 281 U.S. at 557, 571 , 50 S.Ct. at 429, 434 . In addressing that case, Senator Wagner implicitly acknowledged that strict application of the principle of majority rule must sometimes give way to the need to remedy illegal employer practices in order to permit employees genuine freedom of choice.

In general, however, non-majority bargaining orders as remedial measures were not discussed. See H.R.Rep. No. 972 at 21 (examples of remedial measures within Board’s power). I infer from this silence at most either that Congress never conceived of the extraordinary circumstances giving rise to the need for a non-majority bargaining order or that Congress did not wish to constrain the Board’s choice of remedial measures in this manner. I certainly see no way to infer, as the majority does, that the Act meant to take away from the Board this specific remedy without ever identifying it. The legislative history of the Wagner Act accordingly gives no cause to overrule the Board in its choice of remedies.

*1396 Nor does the history of subsequent amendments to the Wagner Act. The Taft-Hartley amendments in 1947 were addressed in part to perceived excesses by the Board. For instance, they limited the Board’s power to certify bargaining representatives by means other than secret ballot election, 29 U.S.C. § 159 (c); 11 they provided for a process by which employees could decertify a bargaining representative they no longer supported, 29 U.S.C. § 159 (c)(l)(A)(ii); § 159(e)(1); they prohibited certain kinds of “closed shop” agreements which limited employment to union members, 29 U.S.C. § 158 (a)(3). The Supreme Court in Gissel, however, demonstrated the irrelevance of any of these changes to the Board’s independent power to issue a remedial bargaining order, noting the critical distinction that “[a] certified union has the benefit of numerous special privileges which are not accorded unions recognized voluntarily or under a bargaining order.” NLRB v. Gissel Packing Co., 395 U.S. 575, 598-99 , 89 S.Ct. 1918, 1932 , 23 L.Ed.2d 547 (1969). 12 Congress did not deal either in 1947 or in later amendments with the kind of remedial order issued by the Board here, which neither certifies a union nor compels union membership.

The majority argues that Congress’ addition in 1959 of section 8(f), authorizing pre-hire agreements with unions in the construction industry even in the absence of a prior showing of majority support, reinforces the conclusion that there is no other authorized exception to the principle of majority rule. I disagree. If Congress had not passed section 8(f), employers in the construction industry, like other employers, would be barred by section 8(a)(2) from voluntarily concluding agreements with a union that cannot demonstrate majority support. Congress recognized the special needs of the construction industry and permitted such voluntary agreements. Thus, section 8(f) is an exception to a general rule that the Board’s remedial order here does not contravene. In other words, the majority’s view of the significance of section 8(f) is merely a recapitulation of the Employer’s argument that the Act’s prohibition on voluntary minority bargaining precludes a remedial non-majority bargaining order. I do not believe that this prohibition has any bearing upon the power of the Board to order bargaining where the employer has by extremely coercive conduct prevented the union from gaining a majority. See infra at 1367.

In sum, neither language nor legislative history contains anything to show that Congress intended to prohibit the Board from issuing a non-majority bargaining order if it is truly necessary to “effectuate the purposes of the Act.” The centrality of the majority rule principle in the Act only reinforces the paradox that results from the majority’s ruling today: the Board is precluded by the principle of majority rule from issuing a non-majority bargaining order when the Board has found (and the *1397 panel majority has conceded) that such an order is the only effective way of restoring to employees their right to make an un-coerced majority decision about union representation. I find such statutory creativity disturbing, to say the least.

D. The Policy of the Act: Majority Rule and Employee Freedom of Choice

The majority’s argument—like the Employer’s—appears to boil down to one of statutory ambience: Even if there is no explicit prohibition of a non-majority bargaining order in the language or legislative history of the Act, the entire statutory scheme of collective bargaining rests on the premise of majority rule and its corollary, the prohibition against minority bargaining set out in International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 738 , 81 S.Ct. 1603, 1607 , 6 L.Ed.2d 762 (1961). Assuming that this is true, however, there is a familiar principle that the need to remedy a violation often justifies and even requires measures that might be unauthorized if undertaken on the actor’s own volition. For example, state-imposed racial quotas, in the absence of an arguable constitutional violation, may run afoul of the fourteenth amendment under Bakke. 13 But courts clearly have the power to order race-conscious remedies for proven constitutional violations. 14 This principle also operates throughout the administration of the Act in contexts no longer in dispute. Thus, an employer would presumably violate the Act’s prohibition on minority bargaining if he voluntarily recognized and bargained with a union that, although it once had a card majority, had since lost a Board election. Yet Gissel clearly authorizes the Board to order bargaining under such circumstances if the employer has committed substantial independent unfair labor practices. The prohibition on minority bargaining thus has no application to the permissibility of a bargaining order.

The principle of majority rule, while indeed central to the scheme of employer-employee rights and obligations, has never been mechanically applied to bind the Board in the remedial area. The Gissel situation is only one of several recognized by the Supreme Court in which the Board, pursuant to and consistent with the policies of the Act, may require an employer to bargain with a union that cannot demonstrate current majority status, 15 or to cease bargaining with a union that does appear to have the support of a majority. 16 Furthermore, the Board is clearly authorized to invalidate for cause the results of elections in which a majority of employees expressed their preference either for 17 or against 18 a union.

*1398 In truth, the majority rule principle is inextricably tied in the statutory scenario to the unfair labor practice prohibitions against employer coercion, domination and discrimination contained in sections 8(a)(1), (2) and (3) of the Act. These limitations on employer conduct during organizational campaigns are more severe than we would tolerate in the political process, but they are acceptable in the labor context precisely because of the inherent potential for economic coercion of employees by the employer. As the Supreme Court stated in Gissel,

what is basically at stake is the establishment of a nonpermanent, limited relationship between the employer, his economically dependent employee and his union agent, not the election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers as a class freer to talk.

395 U.S. at 617-18 , 89 S.Ct. at 1941-42 . The entire statutory scheme is based on the clear congressional endorsement of the notion that only in the absence of illegal employer coercion can a majority of employees make the kind of free choice for or against union representation that is at the heart of the majority rule principle incorporated in the Act.

Thus it is heavy irony that this majority rule principle should now be touted to prevent the Board from dealing with the most intimidating tactics adopted by employers to discourage union representation. We have here a case in which the Employer has been found guilty by the Board and this court of such outrageous and pervasive violations of the Act as to destroy any electoral atmosphere in which employees may express free choice. Under these circumstances, the vigorous assertion by the Employer and the majority of the statutory rights of the employees to select or not to select a bargaining representative strikes me as either disingenuous or incredibly naive.

I would emphasize here what a remedial bargaining order does and does not do and the Board’s reasoning as to how such an order can help restore to employees their right to make an uncoerced decision about union representation and collective bargaining. First, a bargaining order is not tantamount to certification, which, as we have noted, affords the union certain statutory privileges and a continuing presumption of majority status. 19 As the Supreme Court has recognized, “[tjhere is, after all, nothing permanent in a bargaining order, and if, after the effects of the employer’s acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a representation petition.” NLRB v. Gissel Packing Co., 395 U.S. at 613 , 89 S.Ct. at 1939 . The bargaining order does not impose union membership. 20 Furthermore, the union’s ability to impose contractual terms against the will of a majority of the employees is virtually nonexistent:

The employees need not strike against their will. And they will generally possess some influence over the terms of the bargain, if only because the contract will often depend, in the last analysis, on their willingness to fight to obtain it. Still more important, there is every reason for the union to negotiate a contract that will *1399 satisfy the majority, for the union will surely realize that it must win the support of the employees, in the face of a hostile employer, in order to survive the threat of a decertification election after a year has passed. 21

At the same time, a bargaining order does impose a trial period during which the employees can gain exposure to the merits of union representation in the only way that remains possible when the employer has irremediably destroyed all opportunity for a free election preceded by open discussion and debate. When the employer has so flagrantly flouted the law and the rights of its employees in order to keep out the union, thereby impressing upon employees his complete and unchallengeable control over their working conditions, a bargaining order may provide the only opportunity, albeit a temporary one, for them to see at work an employee organization with which their employer is obligated to negotiate about specific proposals to better their working conditions. This interim arrangement may also serve to dissuade them of lingering fear that it is impossible to elect a union without suffering dire consequences. In grossly tainted atmospheres, only the dynamics of ongoing collective bargaining and the display of power by a functioning employee organization can dispel the overwhelming sense of impotence created by the employer’s prior success in breaking up the employees’ attempts at self-organization. 22

I do not view this case, as the majority does, as presenting a conflict between employee freedom of choice and majority rule on the one hand, and the Board’s determination to punish the Employer or simply deter future violations on the other. As the Board explained in its decision, the Employer has already effectively undermined any opportunity to ascertain whether an un-coerced majority would choose to be represented by this union, Conair Corp., 261 NLRB at 1194, although “a reasonable basis exists for concluding that the Union would have enjoyed majority support but for Respondent’s unfair labor practices.” Id. As noted previously, the union held authorization cards from forty-six percent of the employees before the Employer’s vicious campaign began to take its toll. Id. I would be less confident about the propriety of a bargaining order in a case in which it was not reasonably likely that the union would have gained majority support in a free atmosphere. In this case, however, the failure of the union by less than five percent to make it over the fifty percent mark at any point in its campaign demonstrates to me the imprudence of drawing this “clear bright line” where an agency’s statutory authority to choose remedial measures for extreme violations is at issue.

To invoke the principle of majority rule as an absolute bar to a bargaining order in cases of extreme coercion like this introduces into the Act an unjustified premise that the employees’ right to reject collective bargaining is more important than their right to choose it, 23 a premise Congress *1400 clearly did not endorse. To leave untouched, perhaps permanently, the negative fallout of an employer’s successful campaign to wipe out organizational activity means that the employees are indefinitely presumed to have rejected the union even when they have been prevented from exercising their free choice. To permit a Board order as temporary surrogate for their right to select a union representative, on the other hand, appears a far less drastic alternative, and more in keeping with the congressional policy of encouraging free choice and collective bargaining. 24 I believe that the fundamental statutory policy of protecting employees’ freedom to choose by majority rule whether to be represented by a union is not undermined but rather is advanced by a temporary non-majority bargaining order where it is reasonable to conclude that the union would have gained majority support but for the employer’s outrageous and pervasive unfair labor practices, and where no other remedial measures available will remove the taint of those practices so as to permit a fair election in the foreseeable future. I simply do not understand the logic of the majority’s walk-away construction when confronted with violations of these dimensions and impact.

E. The Policy of the Act: Deterrence

In the face of coercive conduct as grave, deliberate and unrelenting as the Employer’s conduct here, the Supreme Court has also said that the Board may properly give increased weight to the deterrent effect of a proposed remedy. The Gissel Court stressed the importance of deterring the extreme misconduct covered by Category I; only on a “lesser showing of employer misconduct” covered by Category II did the Court deem the goal of “effectuating ascertainable employee free choice ... as important a goal as deterring employer misbehavior,” and consequently require “a showing that at one point the union had a majority.” 395 U.S. at 614 , 89 S.Ct. at 1940 .

The deterrent value of a bargaining order against an employer who has engaged in egregious illegal behavior is apparent. The prospect of a remedial bargaining order should create a strong incentive for the anti-union employer to keep its campaign within legal limits. For even if the company wins the organizational battle, it may lose the collective bargaining war. On the other hand, today’s decision that no bargaining order can ever issue unless the union has gained the support of more than half the unit employees at some point in the process creates reverse and indeed perverse incentives. The anti-union employer can avoid ever dealing with a union by rushing in at the first sign of union sentiment, before employees have begun to experience the collective strength of numbers, with threats of plant closings, mass discharges and close surveillance, thereby creating an atmosphere of coercion that outlasts the tenure of current employees and outdistances the remedial powers of the Board. Indeed, we need not conjure up such a hypothetical horror story, for the Employer here has done precisely that. The Act is dealt a debilitating blow by the majority’s ruling and the Board is deprived of its only effective means to remedy and deter a massive campaign of coercive and illegal conduct by an employer bent on crushing inchoate union organization.

Thus I would uphold the Board’s authority to issue a bargaining order even in the absence of a positive showing of majority support for the union in the circumstances *1401 in this case, in which (1) the employer has engaged in unfair labor practices so pervasive and outrageous that there is no reasonable possibility of a fair election, and that even the Board’s ordinary and extraordinary non-bargaining remedies will not restore to employees their right to choose or reject union representation free from employer coercion; and (2) it is reasonable to conclude that the union would have gained the support of the majority but for the employer’s extremely coercive illegal conduct. On this basis, I respectfully dissent.

. The Employer objects that the Board failed to consider changed circumstances making the issuance of a bargaining order inappropriate after the passage of six years since the unfair labor practices took place. Although it did not offer evidence of any particular changed circumstances, it argues that the Board has a duty to inquire as to whether, for example, there have been changes in the composition of the workforce or other outside forces that would tend to dissipate the lingering taint of the earlier events. Brief for Appellant [hereinafter Employer’s Brief] at 43-44. The majority implicitly rejects this objection, thus reaching the issue of statutory authority; I agree that the objection fails, and I summarize my own reasoning for whatever guidance it may offer.

Neither the mere passage of time, NLRB v. Katz, 369 U.S. 736 , 748 n. 16, 82 S.Ct. 1107 , 1114 n. 16, 8 L.Ed.2d 230 (1962), nor normal employee turnover, Franks Bros. Co. v. NLRB, 321 U.S. 702, 703-06 , 64 S.Ct. 817, 818-19 , 88 L.Ed. 1020 (1944); NLRB v. Ship Shape Maintenance Co., Inc., 474 F.2d 434, 443 (D.C.Cir.1972), is grounds for overturning a bargaining order. However, the significance of subsequent events for the validity of a Board order is a subject of sharp dispute among the circuits and the Board. Compare NLRB v. Drives, Inc. , 440 F.2d 354, 366-67 (7th Cir.), cert. denied sub nom. General Drivers & Dairy Employees v. NLRB, 404 U.S. 912 , 92 S.Ct. 229 , 30 L.Ed.2d 185 (1971); G.P.D., Inc. v. NLRB, 430 F.2d 963, 964-65 (6th Cir.1970), ce rt. denied, 401 U.S. 974 , 91 S.Ct. 1193 , 28 L.Ed.2d 323 (1971); NLRB v. Staub Cleaners, Inc., 418 F.2d 1086, 1089-90 (2d Cir.1969), cert. denied, 397 U.S. 1038 , 90 S.Ct. 1357 , 25 L.Ed.2d 649 (1970) (up *1389 holding Board’s refusal to consider subsequent events) with Peoples Gas System, Inc. v. NLRB, 629 F.2d 35 (D.C.Cir.1980); NLRB v. Western Drug, 600 F.2d 1324 (9th Cir.1979) (requiring Board to consider certain events). This court has required the Board to consider subsequent events only when particularly noteworthy events such as an unusually high rate of turnover, NLRB v. Ship Shape Maintenance Co., Inc., 474 F.2d at 443 , or the union’s decisive loss in a valid election wholly free of employer coercion, Peoples Gas System, Inc. v. NLRB, 629 F.2d at 47-48, have been brought to the attention of the Board or the court. I am aware of no such event in this case. Furthermore, in neither of these two previous cases had the employer been found guilty of substantial, much less “outrageous and pervasive,” unfair labor practices. See 474 F.2d at 442 (“[n]o overt anti-union animus ... was demonstrated to any of its employees.”); 629 F.2d at 39 (court emphasized “borderline nature of the violation” of duty to bargain). See also NLRB v. Wilhow Corp., 666 F.2d 1294, 1304 (10th Cir.1981); NLRB v. Western Drug, 600 F.2d at 1326 (turnover need be considered only in close cases, not egregious cases). As the Fifth Circuit stated about practices similar to the Employer’s here:

Practices may live on in the lore of the shop and continue to repress employee sentiment long after most, or even all, original participants have departed. The Board is not compelled to infer that past practices have attenuated, especially practices striking directly at the heart of the security of the employees, such as threats to close the plant, blacklisting, and the like.

Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir.1978).

Additional considerations militate against imposing a blanket requirement that the Board inquire into possible subsequent events before issuing a bargaining order. First, it would generate enormous administrative difficulties at the Board level and possibly delay resolution of basic issues in the case including Employer liability as well as remedial measures. Second, we would reward the Employer’s efforts to postpone the enforcement of an effective remedy by attaching to every normal delay in the process a “bonus” in the form of a requirement of further proceedings entailing additional delay. The Ninth Circuit, confronted with a similar issue, went to the jugular:

[Delay] is an unfortunate but inevitable result of the process of hearing, decision and review prescribed in the Act. And to deny enforcement, with or without remand for reconsideration on the basis of facts occurring after the Board’s decision, is to put a premium upon continued litigation by the employer; it can hope that the resulting delay will produce a new set of facts, as to which the Board must then readjudicate. Suppose that the Board does so, and again finds against the employer. There can then be a petition to this court, a decision by it, and a petition for certiorari to the Supreme Court. By that time there will almost surely be another new set of facts. When is the process to stop?

NLRB v. L.B. Foster Co., 418 F.2d 1, 4 (9th Cir.1969), cert. denied, 397 U.S. 990 , 90 S.Ct. 1124 , 25 L.Ed.2d 398 (1970).

On occasion, especially significant subsequent events may critically undermine the Board’s ability to draw educated inferences about future events from circumstances at the time of the violations, even in the case of extremely serious violations. This possibility, however, does not compel us to require the Board in this case to inquire into possible subsequent events.

. Maj. Op. at 1374. The majority continues: First, this case in several respects is similar to the one other case in which the Board concluded a nonmajority bargaining order was necessary because an employer’s ‘outrageous’ and ‘pervasive’ unfair labor practices precluded a fair rerun election, and it is distinguishable from cases in which the Board did not reach that conclusion.

Id. at 1374-1375 (citations omitted).

. See infra at 1370. The Board disclaims reliance on this conclusion as a necessary prerequisite to a bargaining order. Conair Corp., 261 NLRB at 1194. Because this conclusion is a significant aspect of the factual context for the Board’s claim of statutory authority, however, I discuss its validity here.

. The majority cites Weiler, Promises to Keep: Securing Workers’ Rights to Self-Organization Under the NLRA, 96 Harv.L.Rev. 1796, 1786 (1983) (discussing W. Dickens, Union Representation Elections: Campaign and Vote (Oct. 1980) (unpublished Ph.D. dissertation, Department of Economics, Massachusetts Institute of Technology)) for the conclusion that unions would have won just under half of all elections if employers had campaigned entirely cleanly. See Maj. Op. at n. 79. The same study concluded, however, that the number of pro-union votes was reduced by 15% where employer unfair labor practices included threats or actions against union supporters. Weiler, supra, at 1781-86. In particular, the study results indicate that employer intimidation is most effective when the union does not enjoy overwhelming support. Id. at 1785.

. See Maj. Op. at 1379-80; see also Teamsters Local 115 v. NLRB, 640 F.2d 392 , 396 (D.C.Cir.1981) (Haddon House); Employer’s Brief at 36. Cf. United Dairy Farmers Coop. Ass’n v. NLRB, 633 F.2d 1054 , 1065-66 (3d Cir.1980).

. See, e.g., NLRB v. Montgomery Ward Co., 554 F.2d 996, 1002 (10th Cir. 1977); NLRB v. Armcor Indus., Inc., 535 F.2d 239, 244 (3d Cir.1976); J.P. Stevens Co., Gullstan Div. v. NLRB, 441 F.2d 514, 519 (5th Cir.), cert. den., 404 U.S. 830 , 92 S.Ct. 69 , 30 L.Ed.2d 59 (1971); NLRB v. S.S. Logan Packing Co., 386 F.2d 562, 570 (4th Cir.1967). But cf. NLRB v. Roney Plaza Apartments, 597 F.2d 1046 , 1051 n. 8 (5th Cir.1979).

. Prior to 1979, the Board had uniformly declined to issue bargaining orders, even in cases of “outrageous” and “pervasive” violations, in the absence of a showing of majority status. E.g., Fuqua Homes Missouri, Inc., 201 NLRB 130 (1973); GTE Automatic Elec., Inc., 196 NLRB 902 (1972); The Loray Corp., 184 NLRB 557 (1970). It is not clear from these cases, however, that the Board believed itself to be without authority ever to order this remedy. In none of the three cases above had the precise extent of employee support for the union been litigated at all; nor had the General Counsel sought a bargaining order. Furthermore, the Board found, explicitly in The Loray Corp., 184 NLRB at 558, and implicitly in the other two cases, that other non-bargaining remedies *1393 would be adequate to redress the employers’ violations. As I read these cases, the Board’s determination that a bargaining order was not appropriate was not so much based on its view of the limits of its statutory authority as on its expert assessment of the particular remedial requirements presented by a given set of facts.

. 633 F.2d at 1064-65 . Two members of the Board believed that, although the Board may have such authority under some circumstances, this was not the appropriate case for the exercise of that authority. United Dairy Farmers Coop. Ass’n, 242 NLRB 1026 , 1028 n. 11 (3d Cir.1979) (United Dairy I). Two members argued that the Board did have the authority and should exercise it in this case. Id. at 1031-38.

. In Haddon House, this court upheld the Board’s refusal to issue a non-majority bargaining order without discussing the Board’s statutory authority to do so. Faced with the same Board member lineup as the Third Circuit in United Dairy, see supra note 8, this court was not persuaded that the Board’s decision rested on the legal conclusion of one member that the Board lacked authority. We found that the Board decision just as likely turned on the judgment of two members that the exercise of that authority was inappropriate in that case, and we therefore did not reach the question of statutory authority. 640 F.2d at 397 n. 7.

. The Supreme Court has on occasion limited exercise of the Board’s remedial authority because of conflict with a basic policy embedded in the Act. In H.K. Porter Co. v. NLRB, 397 U.S. 99 , 90 S.Ct. 821 , 25 L.Ed.2d 146 (1970), the Court held that the Board lacked authority to order an employer to accept a particular union bargaining proposal, citing section 8(d) of the Act: “[The obligation to bargain collectively] does not compel either party to agree to a proposal or require the making of a concession ....” 29 U.S.C. § 158 (d). The Court reached its conclusion that the Board lacked authority in that case not from section 8(d)’s language alone, however, but rather from overwhelming evidence in the legislative history that Congress explicitly intended to preclude the Board from intruding into the substantive terms of collective bargaining agreements. See 397 U.S. at 104-06 , 90 S.Ct. at 824-25 . In my view, the “plain language” of sections 7 and 9(a) offers far less support for the Employer’s (and the panel’s) view that the Board is barred from ever issuing a non-majority bargaining order, even when the employer has made a fair election impossible, than did the explicitly preclu-sive language of section 8(d), cited in Porter, defining exactly what the obligation to bargain did or did not mean.

. Section 9(c) of the Wagner Act had permitted the Board to certify a representative by “a secret ballot of employees, or ... any other suitable method to ascertain such representatives.” National Labor Relations Act, ch. 372, § 9(c), 49 Stat. 453 (1935). The Taft-Hartley amendments in 1947 substituted a more elaborate set of guidelines effectively limiting certification to unions that had gained a majority in a valid secret ballot election. Labor Management Relations Act, ch. 120, Title I, § 101, 61 Stat. 143 (1947) (codified at 29 U.S.C. § 159 (c)).

. For example, for a one-year period following certification, there is an irrebuttable presumption of majority status during which the employer must bargain with the union, Brooks v. NLRB, 348 U.S. 96, 103 , 75 S.Ct. 176, 181 , 99 L.Ed. 125 (1954), and during which no rival union may petition for an election, 29 U.S.C. §§ 159 (c)(3); 159(e)(2), or picket for recognition, 29 U.S.C. § 158 (b)(4)(C). After the one-year “certification bar” the union has the benefit of a continuing but rebuttable presumption of majority status. Brooks v. NLRB, 348 U.S. at 103-04 , 75 S.Ct. at 181-82 . In addition, the so-called “contract bar” calls for the automatic dismissal of any representation petition by a rival union during the term, up to three years, of a valid collective bargaining agreement between an employer and the certified representative of the employees. See, e.g., Leonard Wholesale Meats, Inc., 136 NLRB 1000 (1962). A union that has obtained bargaining rights under a remedial bargaining order does not necessarily acquire these benefits.

. University of California Regents v. Bakke, 438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978).

. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971). Cf. Fulliiove v. Kiutznick, 448 U.S. 448 , 100 S.Ct. 2758, 2780 , 65 L.Ed.2d 902 (1980) (10% minority set-aside is within Congress’ power to enforce 14th amendment, in view of past discrimination).

. The Board may order an employer to bargain with a union that had a card majority before the employer succeeded in obtaining evidence of majority support for an employer-dominated union, International Ass’n of Machinists v. NLRB, 311 U.S. 72 , 61 S.Ct. 83 , 85 L.Ed. 50 (1940); and with a union that had a card majority but withdrew its election petition because of the employer’s unfair labor practices. Franks Bros. Co. v. NLRB, 321 U.S. 702 , 64 S.Ct. 817 , 88 L.Ed. 1020 (1944). Furthermore, an employer may not refuse to bargain with a union within one year of its certification or during the term, up to three years, of a valid collective bargaining agreement whether or not the union can still demonstrate current majority support. Brooks v. NLRB, 348 U.S. 96 , 75 S.Ct. 176 , 99 L.Ed. 125 (1954).

. The Board may order an employer to cease recognizing an unlawfully dominated union even though it may have majority support. NLRB v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261 , 58 S.Ct. 571 , 82 L.Ed. 831 (1937).

. See, e.g., NLRB v. Savair Mfg. Co., 414 U.S. 270 , 94 S.Ct. 495 , 38 L.Ed.2d 495 (1973) (Board should set aside election where union waived initiation fees for employees who signed cards before election). Courts have shown no reluctance to direct that a union victory be set aside in cases of union misrepresentations. See generally General Knit of California, Inc., 239 NLRB 619 , 626 (1978) (Member Penello, dissenting) (citing 47 cases in which courts denied

. See note 18 on page 1398.

*1398 enforcement of Board orders based on elections with minor union misrepresentations).

18. See, e.g., NLRB v. Exchange Parts Co., 375 U.S. 405 , 84 S.Ct. 457 , 11 L.Ed.2d 435 (1964) (upholding Board invalidation of union electoral loss where employer granted unlawful economic benefits during campaign).

. See supra note 12.

. As one commentator has noted,

“bargaining will not necessarily compel the employees to join the union or pay dues. These consequences will follow only if a union security clause is negotiated. An employer who will violate the law to resist unionization is an unlikely prospect for a union security clause, and it will be difficult to pressure him into making this concession when the majority of the employees are opposed.

Bok, The Regulation of Campaign Tactics in Representation Elections under the National Labor Relations Act, 78 Harv.L.Rev. 38, 135 (1964).

. Id

. This case thus, presents a far different situation than we faced in Local 57, Int’l Ladies’ Garment Workers’ Union v. NLRB, 374 F.2d 295 (D.C.Cir.1967), cert. denied, 387 U.S. 942 , 87 S.Ct. 2078 , 18 L.Ed.2d 1328 (1967), in which the employer had violated sections 8(a)(1), (3), and (5) when it moved its operations to Florida from a unionized shop in New York. As part of its remedy, the Board ordered the employer to bargain with the union at the Florida location. We denied enforcement because the remedy violated the Florida employees’ freedom to select a bargaining representative. Id. at 300. The Board had justified its remedy solely on the basis of the need “to deprive the company of the ‘fruits’ of its illegal acts,” id., and to deter others, id. at 303. In that case, unlike this one, there had been no showing of any interest by the Florida employees in the union and no claim that they had been coerced so as to make a fair election impossible. Furthermore, the Board did not even assert that the remedy would restore to the New York employees the section 7 rights violated by the employer. In short, the Board had wholly ignored the rights of one group of employees, not even to restore the rights of another group of employees, but simply to punish the employer and deter others. This case is obviously radically different.

. The Chamber of Commerce in its amicus brief openly urges this premise upon us. It argues that “(A) unionization imposes major *1400 burdens on personal liberty that most Americans refuse to accept, and (B) the Act contemplates that those burdens will be imposed only in response to the active, demonstrated, majority will of the employee unit.” Brief of amicus curiae Chamber of Commerce at 8.

. The majority complains that Í “would substitute for the coercion Conair imposed an opposing coercive force imposed by the government.” Maj. Op. at 1383. I view the choice differently. Faced with massive and documented coercion by Conair that the majority agrees made a free election impossible, the Board applied the only remedy it found effective, even though there was a theoretical possibility (almost purely hypothetical in this case) that undesired union representation might be temporarily imposed on employees. So viewed, the Board’s and my choice seems not only justifiable but necessary under the Act.