concurring and dissenting:

I concur with the majority opinion, except in the enforcement of the bargaining order. I would remand that issue to the Board for the purpose of making findings of fact on the charges of serious violence by the union during the strike, and on whether, if such violence was found to have occurred, it had any coercive effect upon the employees in the exercise of their free choice. Thereafter, the Board should reconsider its bargaining order in the light of the analysis of the effect of union violence on the propriety of a bargaining order developed in Laura Modes Co. (1963) 144 N.L.R.B. 1592 , and N. L. R. B. v. United Mineral & Chemical Corp. (2d Cir. 1968) 391 F.2d 829, 838-41 .

Neither the administrative law judge nor the Board gave more than casual attention to respondents’ charges that the union had committed a series of grave offenses early in the strike. Those charges included attempted arson on the Triumph plant, assault and battery on non-striking employees and supervisors, attempted assault on one of the respondents, breaking and entering, destruction of respondents’ property, threats to kill, threats to throw acid in the face of the wife of one of the respondents, and threats to harm the child of one of the respondents. The Board has admitted that certain violent episodes took place but has sought to minimize their seriousness and significance. The administrative law judge made no findings specifically directed toward respondents’ charges other than to observe that the violent incidents took place early in the strike and that respondents’ conduct was also not above reproach.

The failure of the Board to focus its attention upon the claim of serious union violence appears to derive from the assumption that the denial of a bargaining order is primarily a punitive measure designed to deter the union from future misconduct and to induce the union to comply, in good faith, with the legal process instead of resorting to violent self-help. If the Laura Modes doctrine requiring that bargaining orders be denied in cases of serious union violence rested solely on that rationale, I would agree with the Board that it was unnecessary to examine further the underlying charges of violence because both deterrence and evidence of reformation existed in this case after the Board brought its Section 8(b)(1)(A) proceeding against the union, which was thereafter settled. The rationale of Laura Modes, however, has an important different aspect, which mandates an inquiry into the effect of serious violence upon the present and prospective members of the union.

*479 The denial of a bargaining order in a situation marked by union violence is not simply a sanction directed against the union. More significantly, it is a vindication of employee rights, because violence, whether initiated by the employer or the union, and whether directed against the employer, non-striking workers, unionists, or outsiders, can inject an element of coercion and intimidation into the relationship between a union and its members which is incompatible with the principle of employee free choice, the keystone of the structure of representation and bargaining established by our national labor legislation. Violent conduct on the part of the union can make the membership fearful of exercising their rights to seek to end a strike or to change their union representation because even when the violence is not directed against employees it may suggest to them that the union is willing to resort to force in resolving disputes in the future.

The place to begin the analysis is the Laura Modes case. The union had received the unanimous support of the employees in the bargaining unit, as determined by the employees’ signing authorization cards. In response to the demand for recognition and negotiation by the union, the employers called a meeting of employees, at which they denounced the union, requested employees to withdraw from it, declared that they would never negotiate with the union, and that they would drastically cut back the size of the work force if unionization occurred. Early in the dispute, two violent episodes took place in which one employer-partner was struck in the face by a union man and another partner was beaten up. The employers filed charges with the Board, alleging union violations of Section 8(b)(1)(A). As in our case, the complaint in Laura Modes was later withdrawn after the regional director reached a settlement agreement with the union, wherein the union pledged to refrain from committing further violent acts.

The Board refused to issue the bargaining order because (1) the union deliberately bypassed the statutory procedures designed to test its representation claim and to enforce its bargaining rights; and (2) union violence, whether or not directed solely at management, creates a coercive atmosphere which may taint the representation process by putting the employees in fear. 1 The Board recognized that union violence could create “[a]n atmosphere of violence and intimidation” and could be destructive of employee free choice. The potential for employee intimidation from union directed violence is every bit as great whether, as here, the union’s representative status had been determined before the violence occurred or whether, as in N. L. R. B. v. World Carpets of New York, Inc. (2d Cir. 1972) 463 F.2d 57, 62 , the violence was a concomitant of a representation struggle. (See also Allou Distributors, Inc. (1973) 201 N.L.R.B. 47 , 48 (violence by union which had been certified as bargaining representative found to constitute a “callous attempt to enforce its representation rights”; bargaining order withheld); Donelson Packing Co., Inc. (1975) 220 N.L.R.B. 1043 (examining the “lingering effects” of union misconduct and concluding that the infection had sufficiently “subsided” to warrant a bargaining order).)

As I read Laura Modes, a prima facie showing of employee intimidation is made upon proof that the union committed serious acts of violence. Absent a showing by the union that the coercive effects of its misconduct have been dissipated, the union can no longer be considered the freely-chosen representative of the bargaining unit. Under such circumstances, the issuance of a bargaining order is inappropriate.

Moreover, this understanding of why a bargaining order is denied under circumstances of union violence necessarily affects the process by which we determine whether to withhold a bargaining order in a particu *480 lar case. If our only concern were the appropriate punishment for an erring union, I would agree that in deciding whether to apply Laura Modes it is proper to balance union misconduct against employer unfair labor practices. But this kind of balancing is beside the point when the real issue is the impact of union violence upon the employees’ continued support of the union. (See, e. g., N. L. R. B. v. United Mineral & Chemical Corp. (2d Cir. 1968) 391 F.2d 829, 841 .) As the Board has observed, “misdeeds by competing parties do not erase or neutralize each other”; rather, an employer’s misconduct “compounds rather than nullifies” the union’s bad behavior. (Donelson Packing Co., Inc., supra, 220 N.L.R.B. at 1060.) Thus, if Laura Modes is distinguishable it cannot be because the employer’s misconduct was somehow “more serious” than the union’s, but because the union’s violence was not serious enough to intimidate or coerce employees with respect to their relationship with the union.

That may ultimately prove to be the case here, but such a determination cannot be made upon the present record. Neither the administrative law judge nor the Board made adequate findings on the violence issue. The General Counsel would minimize the significance of the acts which admittedly occurred by a gentle reading of the record in the union’s favor (cf. N. L. R. B. v. United Mineral & Chemical Corp., supra, 391 F.2d at 838-41 ); but the fact that the union did not carry out its threat to kill or to maim and that the alleged arson attempt was unsuccessful does not resolve the issue. Threats of death and personal injury may have been perceived by the employees as simply emotional outbursts in the heat of battle, but under all of the circumstances, .the employees may have taken them seriously and been fearful that the union was “engaged in a deliberate plan of intimidation and violence” in order to obtain the ends it sought. (Allou Distributors, Inc., supra, 201 N.L.R.B. at 48.)

I would remand to the Board for findings on the acts of violence charged and the effect, if any, upon the employees’ freely-given acceptance of the union as their bargaining representative. 2

. “We recognize that the employees’ right to choose the Union as their representative survives the Union’s misconduct. But we believe it will not prejudice the employees unduly to ask that they demonstrate their desires ajiew in an atmosphere free of any possible trace of coercion.” (144 N.L.R.B. at 1596.)

. In the event that such an inquiry would prove to be too difficult or too costly, the Board could forego the bargaining order and test employee sentiment through a new election. See, e. g., Chico Convalescent Hospital (1974) 210 N.L. R.B. 547, 552, enforced sub nom N. L. R. B. v. Dent (9th Cir. 1976) 534 F.2d 844 ; Laura Modes Co., supra, 144 N.L.R.B. at 1596; N. L. R. B. v. United Mineral & Chemical Corp., supra, 391 F.2d at 841 .