On these petitions for review and enforcement of a Labor Board order the only question we find worth discussing is whether an employer, who has afforded a union access to the plant and reasonable but not excessive assistance in its organizational campaign in admitted ignorance that another union was also attempting organization, has unfairly discriminated against the rival union by failing to grant that union's request for equal access made only after the first union had signed up a substantial majority of the employees.1 The Board, apparently because the rival union had been in the course of attempting to organize the employees, held that there was discrimination when the company did not allow the second union an equal opportunity to "undo" the employees' selection.

At least in the absence of excessive assistance to a known party one cannot "discriminate" against someone not known to exist. What the Board is holding is that subsequent occurrences after an accomplished event may cause one to become a discriminator ab initio. The unsettling effect of such a rule is apparent on the facts of this case. Here we have a union, so far as the evidence shows, acting at all times without knowledge of the existence of a rival, obtaining recognition through a card check and negotiating an agreement, and then, on a charge filed eight weeks later, being ousted because after it had obtained its majority membership the employer did not allow another union that had been competing secretly to come in and compete openly. We see no great hardship on this particular union in view of its complete lack of diligence.2 But even if there were hardship, the present rule would suspend a Damoclesian sword over every instance where an employer innocently extended, and a union innocently accepted, legitimate accommodation to an organizational campaign. We do not think this admittedly highly unusual case should be permitted to make bad general law.

A decree will be entered setting aside the order of the Board.