O’SULLIVAN, Senior Circuit Judge.
National Labor Relations Board seeks enforcement, and respondent Canton Sign Company (Canton) resists enforcement, of an Order of the Board entered February 28, 1969, directing respondent to bargain with intervenor, Sign Display and Pictorial Artists and Allied Workers, Local 639, Brotherhood of Painters and Allied Trades, AFL-CIO (the Union), as representative of Canton’s employees. The Board’s Order and its Trial Examiner’s Decision are reported as 174 N.L.R.B. No. 133.
We deny enforcement.
At the times here involved, Canton Sign Company of Canton, Ohio, had five employees eligible for membership in Local 639. But neither Local 639 nor a predecessor, Local 89, had ever been certified as bargaining agent for Canton’s employees; neither is there evidence that any of them had ever chosen to become a member of either of such Locals. A Regional Director and the Trial Examiner who made the decision before us, took the position that Canton had recognized Local 89 and Local 639 as representatives of its employees and was thereby obligated to continue to deal and bargain with Local 639 or be guilty of an unfair labor practice. The immediate background to the order before us was a strike, called by Intervenor Local 639 on April 8, 1968. It covered respondent’s plant as well as the plants of two other Canton enterprises engaged in activities similar to those of respondent. The record before us is unclear as to just why the strike was called or why it ended. It was short lived. Except for one Thomas Franta, none of respondent’s employees who participated in it ever asked for reinstatement, nor did they ever return to the employ of respondent. Thomas Franta, a brother of Edward A. Franta, respondent’s president, was himself its vice-president. Because he did some work of like kind to that done by respondent’s four other employees, he paid dues to Local 89 and Local 639, and was apparently considered a member. Except for Thomas Franta, who returned to work one day after the strike was called, the other employees of Canton, at a date not shown by the record, all went to work for other employers. Local 639 found new jobs for them.
Prior to and during the strike, meetings were had between representatives of the Union and respondent during which the Union sought to have the Company recognize it, and enter into a contract with it, as bargaining agent for Canton’s employees. While the strike was in progress, the Company filed an unfair labor practice charge against the Union claiming that the picketing was a violation of Section 8(b) (7) (c), 29 U.S.C. § 158(b) (7) (c) as an illegal effort to force the Company to recognize and bargain with Local 639. The Regional Director, however, refused to issue a complaint, asserting that Canton had already recognized Local 639 as bargaining agent for Canton employees. Upon the Company’s appeal to the General Counsel, the Regional Director’s decision was affirmed. No representation election, no card count, [835]*835nor any other mechanism had ever been employed or directed for the purpose of making a reliable determination as to whether Local 639 was, in fact, the chosen representative of Canton’s employees.
Returning to the background of this litigation, we recite that on March 31, 1964, Canton Sign Company entered into an agreement with Local 89 of Sign Display and Pictorial Artists and Allied Workers, Brotherhood of Painters and Allied Trades, AFL-CIO. It was there provided that each employee of Canton, after the first 30 days of his employment, or after 30 days duration of the contract, was required,
“[A]s a condition of employment become and remain members of the Union, to the extent of tendering or paying the amount of the uniform dues and initiation fees required by the Union of its members.” (Emphasis supplied.)
The record is silent as to what negotiations led to this “union-shop” contract and as to whether any of Canton’s employees had a part in whatever negotiations led to it.
The making of such a contract by a union and an employer without a majority of the involved employees having chosen the union as its bargaining agent would be illegal, and confers no right on the union. Section 8(a) (3) of the Act, 29 U.S.C. § 158(a) (3). International Ladies’ Garment Workers’ Union v. National Labor Relations Board, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961); Lane Drug Co. v. NLRB, 391 F.2d 812, 820 (6th Cir. 1968); NLRB v. Pepsi Cola Bottling Co., 454 F.2d 5 (6th Cir. 1972).
The contract was to run to April 1, 1967, with annual renewals unless terminated by a 90 day advance notice. No contract had ever been made between Canton and Local 639, the charging party. The trial examiner, however, found that Local 639 had become the bargaining representative of Canton’s people by reason of a merger between Local 89 and Local 639. In February, 1966, Local 639 sought to take over Local 89. Local 89 was a small organization covering three sign companies of Canton, Ohio, having a total of about 35 employees, five of whom worked for respondent. Local 639 was a large union covering eligible employees of sign companies throughout the entire State of Ohio and parts of Kentucky. On February 2, 1966, pursuant to notice to the members of Local 89, a meeting was held at which fifteen of the thirty-five members of Local 89 were present. A vote by secret ballot was taken and thirteen of the fifteen who were present voted for the merger. There was no evidence that any employee of Canton voted for the merger or was even present at this meeting. No notice was given to respondent Canton of such a plan, nor was it ever consulted as to whether it would be willing to substitute Local 639 for Local 89 as bargaining representative of its people. It learned of the merger later. It would be well at this point to emphasize that the burden of proving charged illegal conduct is on the General Counsel. NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509, 513 (6th Cir. 1964); Sears, Roebuck & Company v. NLRB, 450 F.2d 56, 61-62 (6th Cir. 1971).
There is no evidence of any trouble between Canton and its employees over membership in Local 89, Local 639, or in any other union, nor as to who was to bargain for them. After the 1966 merger, Canton’s employees paid their union dues to Local 639 which had taken over the assets and records of Local 89. It is a fair inference that this was a routine affair, obedient to the requirement of the 1964 contract and to the direction of the business agent of Local 639. There was no occasion for Canton to deal with Local 639 until, on January 17, 1967, it received a letter from Local 639 advising that it wished to discuss termination of the existing contract (with Local 89) “which will expire by its terms on April 1, 1967,” and asked the company to meet with Local 639 to discuss “a replacement agreement which will become effective April 1, 1967.” Canton replied that in view of the fact that neither the com[836]*836pany nor the union had given notice of intention to terminate or change the existing contract with Local 89 “90 days prior to April 1, 1967” the existing contract would continue for one year until April 1, 1968. The company’s response, however, concluded:
“However, if there is any specific problem or proposal which you wish us to consider with you, or any suggestion which is likely to improve our business prospects or increase employment, we shall be glad to hear further from you, looking to arrangements for a joint discussion.”
Thereafter, on December 27, 1967, more than 90 days prior to April 1, 1968, the expiration date of the existing contract, Local 639 — its letterhead identified its office as being in Cleveland, Ohio — asked that Canton meet with its representatives to discsuss “a replacement agreement.” The company responded that,
“In order to expedite things, please present your proposal to us in writing at your earliest convenience.”
Subsequently, negotiations were had looking to an eventual making of a contract between Canton and Local 639. During these negotiations, respondent company in no way sought to dissuade its employees from remaining, or becoming, members of Local 639. Meetings were held at which the union submitted proposed contracts. These proposals contained the same “union security” provision which had been in the expiring contract with Local 89. Notes appearing on such draft proposals indicate that respondent would likely have gone along with such a provision if total agreement was reached. There obviously were areas of disagreement, however, and respondent’s employees, as well as the employees of the other two sign companies of Canton, Ohio, went on strike as hereinabove set out.
The order which the Board here asks us to enforce is bottomed on the union’s charge that in April, 1968, after the strike had commenced, the respondent Company refused to continue bargaining with Local 639 as the representative of Canton’s employees. In February, 1969, the Board found the respondent guilty of the charge and ordered Canton to bargain with Local 639. The Board’s petition to us for enforcement was filed in April of 1971. This long interval was in part the consequence of some interim proceedings, discussed later.
The Board relies on decisions which have held that where a union has been certified, or has otherwise become the bargaining representative of the employees of a company, it is the duty of such company to bargain with that union and if it is ordered to do so following an unfair labor practice charge, it must continue to bargain with that union for a reasonable length of time — one year being found to be reasonable — notwithstanding that after the Board’s order the Union loses its status as representative of the majority of the employees involved. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); NLRB v. Warren Company, 350 U.S. 107, 76 S.Ct. 185, 100 L.Ed. 96 (1955); NLRB v. P. Lorillard Co., 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380 (1942); Franks Bros. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944); Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954). This Circuit obeys such rule. McLean v. NLRB, 333 F.2d 84, 88-89 (6th Cir. 1964). The law announced in these cases is, of course, controlling if the facts here call for their application. They do not.
Without attempting exposition of all the facts of the above cases which distinguish them from the case at bar, we mention two factual elements common to all of them. First, the unions with whom the employers were ordered to bargain had, by election, card count, or otherwise been shown to be the chosen bargaining representatives of the accused’s employees. Second, the involved employers had been shown to have an anti-union history and had been continuing in attempts to frustrate the unions’ efforts to attain, or to retain, the status of legit[837]*837imate bargaining agents. Both of these essentials are missing here.
In May of 1967 Local 639 had filed a petition with the Regional Director asking that it be certified as the bargaining representative of three Canton Sign Companies including the respondent. It was withdrawn, apparently because the current contract would not expire until April 1, 1968.
The Trial Examiner also' concluded that joining the picket line by respondent’s employees was proof that they had chosen Local 639 as their bargaining agent. We do not agree. Whatever may have been said by other courts in different contexts, we are not persuaded that the joining in the picket line by Canton’s employees in a strike called by Local 639 constituted such local as a bargaining agent with whom Canton had to deal or be guilty of an unfair labor practice. The Board here cites several cases to support its Examiner’s finding in the above regard. They are not in point. In NLRB v. National Seal Corporation, 127 F.2d 776 (2d Cir. 1942) we find this:
“He [the union representative] called a meeting of the employees that night at which they voted to strike the next day, which they did with substantial unanimity, putting forward five grievances of which one was the refusal to recognize the union.” 127 F.2d at 777.
In NLRB v. Harris-Woodson Co., 4 Cir., 179 F.2d 720, is a factual recital:
“The facts are that following the organization of the union in' August 1942, it [the union] was unanimously chosen as the bargaining representative at an election held shortly thereafter.” 179 F.2d at 721. (Emphasis supplied.)
Other cited cases, NLRB v. I. Taitel & Son, 261 F.2d 1, 4 (7th Cir. 1958); NLRB v. Shurett, 314 F.2d 43, 44 (5th Cir. 1963); and NLRB v. Preston Feed Corp., 309 F.2d 346, 350 (4th Cir. 1962), just do not fit here.
After the strike commenced, further meetings were held between Canton management and the business agent of Local 639. Efforts to come to agreement continued. However, at a meeting held on April 19, 1968, the company representative then advised that “there was no need to meet unless we [Local 639] found out that we were the proper bargaining representative of the people at that shop, Canton Sign Company.” Since that date no effort has been made to establish by election, by a card count, or by any other mechanism, that Canton’s employees, those that went on strike and those that replaced them, desired to have Local 639 bargain for them.
On May 27, 1968, the business agent of Local 639 filed the unfair labor charge which is here involved. The charge was that since April 15, 1968, respondent Canton Sign had “refused to bargain collectively with * * * Local 639.” A complaint was issued July 12, 1968; a hearing thereon held on September 12, 1968; a Trial Examiner’s decision was announced on November 25, 1968; on February 28, 1969, the Board affirmed the Examiner’s decision and ordered Canton to bargain with Local 639. Notwithstanding what had preceded this order, the company posted the notice required by it and expressed its willingness to further negotiate with Local 639. On June 26, 1969, the Acting Regional Director wrote to the company and the union as follows:
“The Respondent having satisfactorily complied with the affirmative requirements of the Order of the National Labor Relations Board in the above-entitled case and the undersigned having determined that Respondent is also in compliance with the negative provisions of the Order, the file in this matter is hereby closed. The closing is conditioned upon continued observance of the Board’s Order, and subsequent violations may become the basis of further proceedings despite the formal closing of the case.”
Correspondence was had looking to further bargaining sessions. In the meantime, the strike of April, 1968, had been completely abandoned. On May 23, 1969, in response to a letter from Local 639 [838]*838respondent expressed its willingness to meet with the Local’s representatives. The Local did not respond to this until July 23, 1969. A meeting was finally had in August of 1969. The Company then advised Local 639 that it would not bargain further until the Local established its right to speak for Canton’s employees. Local 639 then filed a new charge on October 16, 1969, charging that since May of 1969 Canton was refusing to bargain with Local 639. A hearing was had on this charge and after a hearing on February 24, 1970, the trial examiner issued a decision dismissing the complaint. He said:
“The Company contends that it complied with the Board's order in Case 8-CA-5039 because it posted the notices provided for, and offered to meet with the Union. The Union did not timely respond to the Company’s offer to meet. When the Union later sought a meeting significant changes had taken place: the strike had come to an end and none of the striking employees requested reinstatement. Respondent argues that in the circumstances it is entitled to insist upon the Union demonstrating its majority before the Company should be required to recognize and to bargain with the Union. It is unnecessary to meet this argument because I shall recommend that the complaint be dismissed for other reasons.” (Emphasis supplied.)
And under Conclusions of Law, he said:
“The Company has not engaged in any unfair labor practice which warrants the issuance of a remedial order.”
It should be observed, however, that the dismissal was the product of the Examiner’s conclusion that the original order— the one before us here — was still in force.
“Furthermore, any remedy ordered in this case ‘would add nothing of substance to the remedy provided in the earlier case.’ New Enterprise Stone and Lime Co., Inc., 176 NLRB No. 71. No useful purpose would be served by issuing another like order.”
On October 31, 1970, the Board affirmed its examiner’s dismissal of the second complaint, but did so upon its holding that the original order of February, 1969, was still in effect and was sufficient to require Canton to continue to bargain with Local 639 for a reasonable time. No effort, however, was made by Local 639 to bargain with the Company after the Union filed its second charge on October 16, 1969, nor was any effort made by Local 639 to obtain the membership of any of Canton’s employees. The following examination of the then agent for Local 639 occurred during the hearing on the second charge:
“Trial Examiner: May I interrupt just a moment. Is it your testimony that Local 639 does not represent any employees currently working for the Company ?
“The Witness: Correct.
“Trial Examiner: Does it represent any employees who formerly worked for the Company who wished to return to the Company but are refusing to do so because they are participating in a strike against the Company ?
“The Witness: Not any more.
“Q. (By Mr. Rector) Well, isn’t it a fact that your Union took those pickets and put them to work with another Company ?
“A. That’s right.
x x x x ■>:• -x
“Trial Examiner: Who is striking?
“The Witness: No one, but the strike is not abandoned as far as our Local is concerned. We haven’t concluded an agreement, so you can’t say the strike is over. It is over when an agreement is signed.
“Trial Examiner: What former employees are concerned with the strike now?
“The Witness: None. They replaced them after the strike.
“Trial Examiner: But, there are none?
“The Witness: No.”
[839]*839We have reviewed the facts and proceedings at the above, probably undue, length believing that their recital provides clear distinction of this case from the authorities relied upon by the Board’s General Counsel. Aware that there was no evidence that any employee of Canton had ever chosen Local 639 as its bargaining agent, the Board contends that by reason of the merger of Local 89 and Local 639 and the Company’s dealing with the latter while its original contract with Local 89 was still in force, Local 639 somehow became the representative of Canton’s employees. The basis of this claim is that Local 89 was merged into Local 639. There is no evidence that any employee of Canton attended the meeting to consider the merger. Only 15 of the 35 members of Local 89 were present at the meeting and 12 of the ones who were present voted in favor of the merger. Our decision of Union Carbide & Carbon Corp. v. NLRB, 244 F.2d 672 (1957), is cited as supporting the binding force of the merger on Canton. We disagree. In Union Carbide a union which had won an election and been certified as bargaining agent, was then consolidated with another union. Upon a relevant hearing, the Board had found the consolidated union had succeeded to the status of the constituent unions. We there said, however :
“In the instant case, there were no changes in the membership or officers of the local, or in its day-to-day relationships with the company. The Gas Workers were of comparable size with the Oil Workers and had an equal voice in deliberations and in the division of officers. In short, the consolidated group was intended to function as a continuation of its two constituent unions, so that the consolidation would not impair any of their certifications. For these reasons, our decision in the Dickey case is not controlling here.” 244 F.2d at 673. (Emphasis supplied.)
This is not this case where respondent Canton’s five employees were but a small fraction of the total membership of Local 639 which at the time of the second hearing covered “the complete state of Ohio and parts of Kentucky.” Local 89 covered three employers in the City of Canton, Ohio. In Union Carbide, supra, we distinguished our earlier case of Dickey v. Nat’l Labor Relations Bd., 217 F.2d 652 (6th Cir. 1954), by saying:
“There, the members of the certified unit constituted only a fraction of the merged group and had no control over it.” 244 F.2d at 673.
Our case of Dickey v. NLRB clearly fits the case at bar. We said there:
“An employer cannot by dealing with a union constitute it the lawful representative of employees who have not chosen it to represent them.” 217 F.2d at 655.
The Board’s examiner found that respondent’s employees had chosen Local 639 as their agent because they paid dues to it. After the so-called merger meeting, Local 639 took over and assumed to speak for all of the former members of Local 89. Under the “union-shop” agreement with Local 89, membership in the union was required only,
“[T]o the extent of tendering or paying the amount of the uniform dues and initiation fees required by the Union of its members.”
We do not consider that paying dues to Local 639 can, under the circumstances here, be held to be a selection of that Local as the agent of each of Canton’s employees. The first examiner held that Canton had recognized and accepted Local 639 as the representative of its employees by discussing a possible new contract upon the expiration on April 1, 1968, of its old contract with Local 89. In dismissing the Company’s charge of illegal picketing, the Regional Director said:
“[T]he evidence disclosed that the Employer, over the period of approximately two years, has recognized and bargained with Local 639 by, inter alia, adjusting an oral grievance presented by a business representative of Local 639, and submitting at least two bar[840]*840gaining proposals to Local 639 during the course of collective bargaining negotiations in 1968, * *
The trouble with this argument is that neither the Company nor Local 639 had the right to choose the bargaining representative of Canton’s employees. These employees, or the majority of them, are the ones, and the only ones, who had the right to select their bargaining agent. The most cogent circumstance that distinguishes this case from those relied on by the Board and its General Counsel resides in the fact that there is not a scintilla of evidence that Canton ever tried to dissuade any of its employees from being or becoming members of Local 639, or any other Local. This applies to its five employees who joined in the strike, as well as those who replaced them and continued to work for the company after the strikers had been provided jobs with other employers by Local 639. No effort has ever been made by Local 639 to organize the employees who came to work for Canton after the strike. While the Board, in the exercise of its powers, may order a company with a history of interfering with the right of its employees to organize for their mutual aid and protection, to desist from such interference and to recognize a union of the employees’ choice, or one that is seeking to be chosen as such representative, neither the Board, an employer, or a union has any right to make such a choice for a group of employees. In International Ladies’ Garment Workers’ Union v. National Labor Relations Board, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961), the Supreme Court made clear that it is a violation of the rights of a company’s employees for a union and a company to make a contract recognizing a union as the exclusive representative of the involved employees if a majority of such employees had not chosen the union as such agent. The Court there said:
“The Board found that by extending such recognition, even though done in the good-faith belief that the union had the consent of a majority of employees in the appropriate bargaining unit, the employer interfered with the organizational rights of his employees in violation of § 8(a) (1) of the National Labor Relations Act and that such recognition also constituted unlawful support of a labor organization in violation of § 8(a) (2). In addition, the Board found that the union violated § 8(b) (1) (A) by its acceptance of exclusive bargaining authority at a time when in fact it did not have the support of a majority of the employees, and this in spite of its bona fide belief that it did. Accordingly, the Board ordered the unfair labor practices discontinued and directed the holding of a representation election.” 366 U.S. at 732-733, 81 S.Ct. at 1604.
Idem, Lane Drug Co. v. NLRB, 391 F.2d 812, 820 (6th Cir. 1968); and NLRB v. Pepsi Cola Bottling Co., 454 F.2d 5 (6th Cir. 1972). There are, of course, the cases which hold that even though, subsequent to an order to bargain, the union loses its status as representative of the involved employees, the employer must continue to bargain for a reasonable time. NLRB v. Warren Company, 350 U.S. 107, 76 S.Ct. 185, 100 L.Ed. 96 (1955); NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); NLRB v. P. Lorillard Co., 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380 (1942); Franks Bros. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944); Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954). This Circuit has followed this rule. McLean v. NLRB, 333 F.2d 84, 88-89 (6th Cir. 1964).
None of the foregoing decisions fit this case. In each of them the involved union had been certified as, or found to be, the legitimate bargaining representative of the involved employees after an election or valid card count; in each the accused company had carried on an anti-union campaign before and after the certification, and after the Board’s order. These facts are not present here. In none of them was the union entirely without members among the involved company’s employees at the time of the refusal to [841]*841bargain and at the time of the Board’s order. Such, however, is the situation in the case at bar.
We believe that what we do here is consonant with the views expressed in Clark’s Gamble Corporation v. NLRB, 407 F.2d 199 (6th Cir. 1969), and in our reconsideration of that case after remand by the United States Supreme Court. Clark’s Gamble Corporation v. NLRB, 422 F.2d 845. The Supreme Court in NLRB v. Clark’s Gamble Corp., 396 U.S. 23, 90 S.Ct. 197, 24 L.Ed.2d 143 (1969), directed that we further consider our decision “in the light of NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547.” In our first decision we emphasized the likely turnover of the company’s employees in the interim between the date of the unfair labor practice charge in early 1965 and the Board’s order in November, 1967. We said:
“[T]he case is remanded to the National Labor Relations Board for a determination as to whether in view of the passage of time since the entering of its Order that portion thereof requiring petitioners to bargain collectively with Local 1262, Retail Clerks International Association, AFL-CIO is still appropriate. Specifically the Board is enjoined to determine the extent to which there has been a change in the identity of the employees since the time demand for recognition was made. If such change is found to have been substantial it is directed that the Board cause a representation election to be conducted.” 407 F.2d at 202.
In our opinion following remand, Clark’s Gamble Corporation v. NLRB, supra, we said:
“The thrust and philosophy of the Act is that employees be represented by a bargaining agent of their choice and in this situation which fails to reflect the selection of an agent by the employees sought to be affected, and where the period for personnel turnover has been extended by Board-occasioned delay, we conclude that it would be contrary to the intent of the Act to order enforcement.” 422 F.2d at 847. (Emphasis supplied.)
We concluded that Gissel Packing did not require a different result and again remanded the matter to the Board. The Supreme Court denied certiorari to our final decision. 400 U.S. 868, 91 S.Ct. 100, 27 L.Ed.2d 108. We do not believe that our later decision in G.P.D., Inc. v. NLRB, 430 F.2d 963, impaired the precedential standing of either of our decisions in the Clark’s Gamble case. In G.P.D., we were dealing with a situation where an anti-union employer was trying, by illegal conduct, to interfere with its employees' free choice of a bargaining representative. Such is not this case. Because of our expressed view that Local 639 had not become the bargaining agent of Canton’s Employees before the strike of April 8, 1968, and the fact that at no time thereafter were any of Canton’s employees members of such Local, we feel it right to deny enforcement of the Board’s order. If the Board’s and its Trial Examiner’s conclusion that Local 639 was the chosen bargaining agent of Canton’s employees prior to, or after, April 1, 1968, was a finding of fact, we hold that such finding is not supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160 (c); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
Enforcement is denied.1