c33:No. 6, Docket 28735

MOORE, Circuit Judge
(dissenting):
The majority has given me a most cogent reason for dissent in saying: “Were we merely to weigh the respective equities of the parties we might be inclined to deny enforcement of the Board’s orders or, alternatively, to require that the Board conduct another representation election.” I had always supposed that the statuesque figure, usually blindfolded, and referred to as “Justice,” held the scales for the very purpose of weighing equities in order to dispense justice. However, if we are to make the blindfold so opaque that she cannot see the scale imbalance or, if we are to disregard the equities as recorded on this balancing device, as my colleagues feel that they are compelled to do, there is little chance of achieving justice or, particularly in labor cases, of giving to the employees the right to bargain collectively through representatives of their own choosing. Section 7, National Labor Relations Act.
Again quoting from the majority, there are indeed “arguments against subjecting the large majority of the employees to the leadership of a union which they have repudiated and to the terms of a two-year contract which by this time would have expired.” To solemnly order that the employer bargain with a union “as the exclusive representative of the employees” and in late 1964 or early 1965 execute a contract with an “effective terminal date of March 1, 1964” is to give to a modern-day Gilbert and Sullivan or a Charles Dickens further material from which they can ridicule the eccentricities of the law.
I find nothing in the summary reversal in National Labor Relations Board v. International Union, Progressive Mine Workers of America, et al., 375 U.S. 396 84 S.Ct. 453, 11 L.Ed.2d 412 (1964), reversing 319 F.2d 428 (7 Cir., 1963) or in NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962) which indicates that the rights of employer and employee specified by the Supreme Court in Brooks v. N. L. R. B., 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954) have been repudiated by that Court. Therefore, I would remand the case to the Board for further inquiry into the facts or, in the alternative, if during such bargaining as may be requested and which may ensue pursuant to the order to be entered, “the employees are dissatisfied with their chosen union” or the “employer has doubts about his duty to continue bargaining,” these respective parties, apparently forced by force of law to become antagonists, have the privilege of seeking that Chimera-like goal of “industrial peace” in the manner approved by the Supreme Court in Brooks v. N. L. R, B., supra at 103, 75 S.Ct. at 181.
. The “now effective terminal date to be September 1st, 1965” as specified by the majority creates by judicial fiat a three-year contract instead of the two-year contract which is the only contract even under the Board’s interpretation of the facts agreed upon by the parties. It seems rather inconsistent to order the employer to bargain or, in the alternative, to have the court by frowned-upon “judicial intervention” fix the terminal date never agreed upon or even considered so far as appears from the record.

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