O’SULLIVAN, Circuit Judge.
In No. 18,357, Tennessee Products & Chemical Corporation seeks review, and in No. 18,463 the National Labor Relations Board seeks enforcement of, a decision of the National Labor Relations Board whereby petitioner, Tennessee Products and respondents Basham Coal Company, et al., were found guilty of violating Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act, 29 U.S..C. § 158(a) (1) and (5), by refusing to bargain with the United Mine Workers of America through the agency of a multi-employer unit constructed by order of the NLRB. In addition, respondents H. Willis Flynn, d/b/a Poplar Coal Company (Poplar), and Sycamore Coal Company (Sycamore), were found guilty of violating Section 8(a) (2) of the Act, 29 U.S.C. § 158(a) (2), by entering into contracts with the Southern Labor Union which had not been certified as the bargaining agent of their employees. The opinion and order of the Board is No. 12 in Volume 167 NLRB.
We deny enforcement of the Board’s order.
Alleged violations of Sections 8(a) (1) and (5).
I.
Recital of the facts and the prior proceedings is necessary because of the unusual nature of this case. It grows out of the labor strife that has so long beset southeastern Tennessee coal lands. Pri- or to 1962, Tennessee Products and Chemical Corporation (Tennessee Products) and Tennessee Consolidated Coal Company (Tennessee Consolidated) were the dominant interests in the area here involved; both had actively operated coal mines and leased portions of coal lands controlled by them to independent operators.
Tennessee Products and Tennessee Consolidated, with other mine operators in the area, had, prior to 1962, bargained with the United Mine Workers through an organization known as the Southern Tennessee Coal Producers Association. The contract negotiated by this association in 1958 expired in October, 1962. In September of 1962, various operators in the area formed the Sewanee Coal Operators Association, Inc. (Sewanee). Sewanee’s charter stated that it was incorporated for a purpose, among others, of acting as the exclusive bargaining agent for its members. Neither Tennessee Products, Grundy Mining Company, nor Tennessee Consolidated became formal members of Sewanee. Instead they made application for membership subject to the condition that Sewanee not negotiate for them unless and until the UMW had been duly certified as bargaining agent for their employees.
Negotiations between Sewanee and the UMW commenced in September, 1962. Between September and December, 1962, there were four bargaining sessions between UMW and the Sewanee group. We draw a justified inference that the [171]*171only contract that the United Mine Workers could consider was the National Bituminous Wage Agreement of 1950, as amended by the Price Wage Clause of 1958. This was the contract .that had been made between the Bituminous Coal Operators Association, an association of the operators of the big mechanized mines in Tennessee, and the United Mine Workers. This contract was the subject of several suits against .the Mine Workers charging violation of the Sherman Act. See Ramsey v. United Mine Workers, 265 F.Supp. 388 (D.C.E.D.Tenn.1967) affirmed 416 F.2d 655 (6th Cir. 1969); and Tenn. Consolidated Coal Co. et al. v. United Mine Workers, 416 F.2d 1192 (6th Cir. 1969).
The negotiations between the Sewanee group and the UMW were fruitless; and on December 26, 1962, the Mine Workers called a strike throughout the involved coal fields. The mines of all the respondents, as well as those of Tennessee Products, were shut down. Most of these mine enterprises have gone out of business.
II.
In February, 1963, following the start of the strike, United Mine Workers filed a petition with the Regional Director to have that union certified as the bargaining representative of the employees of all the members of Sewanee Coal Operators Association as well as the employees of Tennessee Products and Grundy Mining Company, all of which employers to be required to bargain with the UMW as a single multi-employer unit. Success in this endeavor would give the UMW exclusive bargaining rights for the employees of some forty-three different mine operators, regardless of the wishes of a majority of the employees of any single enterprise. On May 23 and June 6, 1963, the Southern Labor Union (SLU) filed with the Board petitions seeking elections in separate and single-employer units consisting of the employees of Grundy Mining Company, Stephenson Brothers Coal Company, Inc., and M. A. Payne, Inc. Grundy Mining was the largest single employer involved. The Sewanee Association requested that bargaining agents for employees of each of its members be determined by election in individual employer units. Grundy Mining Company requested that it be considered a separate unit for any certification election. It is clear, therefore, that at the time the Board first considered the propriety of constructing a multi-employer unit, it was fully aware that every employer involved was opposed to it. It knew also that a union competing with the UMW was asserting that it represented a majority of the employees of three separate employers. The Board’s own decision asserts its awareness of these facts.
The Board’s decision also discloses its recognition that law and its own policy required that intent by the involved employers to form such a multi-employer unit was essential to its creation. The Board said:
“The test is whether the employer parties have manifested an intent to be bound by group rather than individual action.” (Emphasis supplied.)
The Board, on September 30, 1963, ordered that an election be held among the employees of all of the mine operators here involved, tied together into a single multi-employer unit. The Board’s asserted justification for this resides in the fact that in earlier years there had been some multi-employer bargaining and the shortlived effort by mine operators to deal with the UMW through the Sewanee Association.
It is the Board’s position that no new intent could be arrived at after the strike had commenced. Thus, the Board reasoned:
“The bargaining history also reflects that the intent on the part of the companies ,to bargain on a multi-employer basis is a continuing one.” (emphasis added)
This conclusion was expressed notwithstanding the Board’s knowledge that, following the start of the strike and the UMW’s intransigent insistence that only [172]*172its .then standard contract would be accepted, all of the operators involved repudiated such multi-employer bargaining.
Pursuant to the Board’s order of September 30, an election was held on October 15, 1963. Canvass of the voting disclosed that 579 ballots were cast, of which 108 were for UMW, 50 for the Southern Labor Union, and 421 ballots were challenged. Prior to the election there were only 280 employees of employers in the Sewanee Association listed as eligible to vote and Grundy had listed 155 of its employees as eligible to vote. It is clear that the number of votes cast substantially exceeded the total listed as eligible to do so. While the record is silent on the matter it may be that some, or all, of the mine operators who had gone out of business after the December 26, 1962, strike did not send in eligibility lists, but their former employees voted nevertheless.
Prior to the Board’s decision of September 30, and the election of October 15, the Grundy Mining Company which had been the biggest operator prior to the strike, attempted to resume operations employing members of the Southern Labor Union. These employees attempted to organize a local union made up of members of the Southern Labor Union working for Grundy. Such activities brought on spectacular violence and terrorism by members of .the UMW. This violence was described in, and was the subject of, two decisions of the Board finding the UMW guilty of such conduct. See United Mine Workers Local No. 7083 (Grundy Mining Company) and Southern Labor Union, 146 NLRB 176 (1964), and United Mine Workers of America, Local No. 7244 (Grundy Mining Company) and Southern Labor Union, 146 NLRB 244 (1954).
After the report of the election, Grundy and SLU filed timely objections with the Regional Director charging that the conduct of the Mine Workers had made a fair election impossible. The Regional Director, sustaining objections in such regard, found that the previous violence of the UMW and the conditions that surrounded the voting area on the day of the election prevented a free choice by the voters. He said:
“However, in the opinion of the undersigned, the pictorial evidence submitted during the investigation depicting the crowd massed at the entrance to the polling place and the placard electioneering by unidentified persons in behalf of the UMW in the area immediately outside the polls and in close proximity to the voters waiting in line coupled with the background of violence hereinbefore described was sufficient to create an atmosphere of fear and confusion at .the polls which raises substantial and material issues regarding the results of the election.”
After the foregoing, and other recitals, the Regional Director recommended that :
“For this reason, the election should be set aside and a new election directed, subsequent to the hearing hereinafter recommended.”
The hearing thereafter recommended by the Regional Director was “to resolve the issue raised by the 421 challenged ballots.” His recommendations also contain the recital that the “Board agent challenged 379 persons whose names were not on the eligibility list furnished by the employer” and further set out that,
“As a result of the strike, certain members of Sewanee ceased operations either temporarily or permanently, whereas others continued operations. As a result the persons who voted in the election consisted of working employees, strikers, replacements and laid off employees.”
His recommendations reported that the Sewanee Association had contended that only 11 of its former members “intend to remain in business” and that some 21 of the involved former mine operators had “permanently ceased operations prior to the elections” but that their former employees nevertheless voted at the election. [173]*173These considerations led, then, to his recommendation that,
“a hearing before a Trial Examiner of of the Board be directed to resolve the issues raised by the 421 challenged ballots herein.”
The foregoing Report and Recommendations of the Regional Director were filed on December 17, 1963. Thereafter, on December 23, 1963, Sewanee, apparently assuming that a new election would be held, as recommended by the Regional Director, requested that the Board “spell out the names of the coal companies in business whose employees were entitled to vote as members of Sewanee.”
On April 28, 1964, the Board issued a supplemental Decision and Order, reported as Sewanee Coal Operators Association, Inc., 146 NLRB 1145 (1964) in which it refused to follow the Regional Director’s recommendation that the election be set aside. The Board thought that the April and May, 1963, mob threats and violence of which it convicted the UMW “could have no substantial impact on voter free choice in the election.” The Regional Director’s report stated that during the election,
“a large number of persons, including strikers, nonstrikers, replacements and others congregated on the sidewalk and stood immediately outside the polling place before and during the polling period.”
and that,
“the crowd was estimated to number from 200 to 2000 at various times, with a line of voters four to six feet deep extending from the polling place down the sidewalk for a block or more. While the polls were opened, several unidentified persons circulated about the voting line outside the polling place wearing placards reading ‘VOTE FOR UNITED MINE WORKERS AND BE ABLE TO GET A PENSION.’ ”
Disagreeing with the Regional Director, the Board said:
“The Regional Director based his finding concerning crowding upon pictorial evidence submitted during investigation. However, he does not point to any specific incidents of disorderliness or coercive conduct but merely couples the evidence of electioneering and crowding immediately outside the polling place with the much earlier incidents of strike violence which we have found to be too remote to have an effect upon the election.”
Disposing of all of the employer objections to the report of the election, the Board concluded,
“In view of the foregoing, we hereby overrule the objections in their entirety.”
Thereafter, on May 11, 1964, Grundy Mining filed a petition for reconsideration and motion to reopen the record. Once again it requested the Board to determine the bargaining agent of its employees independently of all other employers and to consider further misconduct of the UMW occurring after the election of October 15,1963. This motion was denied by the Board’s order of June 11, 1964, which order, however, expanded the matters to be considered at the hearing which had been initially set up to consider only the 421 challenged ballots:
“IT IS FURTHER ORDERED that, to the extent that the facts alleged may affect the disposition of the challenges, or to the extent that alleged events occurring after the election relate to changes in the composition, or the continued existence of, the unit found appropriate, the scope of the hearing set for June 16, 1964, is broadened to permit the introduction of such evidence.” (Emphasis supplied.)
Thus, the propriety of putting into one multi-employer unit all of the involved mine operators was reopened in June of 1964 for reconsideration in the light of events occurring after the election. This hearing commenced on June 16, 1964, before Trial Examiner Fannie M. Boyls. Prior to that date the Sewanee Coal Operators Association had formalized its position that it was not in existence as a multi-employer group by surrendering its [174]*174charter to the State of Tennessee and terminating its corporate existence.1
At the June, 1964, hearing it was again made clear that all o,f the mine operators who would be affected by being included in a multi-employer unit were opposed to it. Petitioner Tennessee Products had early advised that it had ceased all mining operations and would not reenter the business. Grundy Mining Company expressed its desire to carry on its operations with members of the Southern Labor Union. The Board knew of the violence wrought upon Grundy by the UMW for Grundy’s attempt to so operate and had properly denounced it in earlier decisions. Such was the situation when the hearing commenced before Trial Examiner Boyls on June 16, 1964. The testimony taken confirmed and corroborated employers’ opposition to a multi-employer unit by every employer concerned. While there is some confusion as to whether the respondents had so stipulated, the Board found that a majority of the votes cast at the October 15, 1963, election were for the UMW. There is no way of telling how the employees of any single employer voted. We need not further consider the matter of the 421 challenged ballots.
The Southern Labor Union, obviously speaking for employees of Grundy, opposed being included in such a unit. The testimony showed that the majority of the onetime members of Sewanee went completely out o.f business following the strike of December 26, 1962, and at the time of hearing had no prospects of returning. At most, only 12 companies, originally considered as members of the appropriate unit by the Board, evidenced any intent to continue, or resume, mining operations. That the trial examiner knew all of this is exhibited by various observations, such as:
“The fact that many of them [formerly members of the then defunct Sewanee] because of heavy financial losses suffered during the strike or because the mines which they had been operating are no longer operative, expressed the view that they will not be financially able to resume their business as operators if and when the strike is settled, does not, in my view, warrant a finding that the multi-employer unit no longer exists or is inappropriate.”
Further, she said:
“Accordingly, despite the testimony of some of the operators that they have no present intention o,f hesuming the no present intention of resuming the business of operating coal mines, I am convinced that some of those so testfying will find the means of again opening their old mines or other mines in that area, and that they will continue to feel the need of collective strength in bargaining with the representative of their employees as they did when they joined Sewanee.”
Trial Examiner Boyls made specific findings that some nine former members of Sewanee went out of business because their leases had been cancelled, and set out that some thirteen others were clearly out of business without prospects of reentering. But the examiner concluded the matter by stating:
“The multiemployer bargaining unit heretofore found by the Board to be appropriate was described in the Decision and Direction of Election as comprising the production and maintenance employees of all members o,f Sewanee, but in view of the fact that Sewanee in its corporate form has dissolved since the UMW won the election, the multi-employer unit is now more accurately described as comprising the production and maintenance employees of those coal mining operators who were formerly members of Sewanee. It is accordingly recommended that the [175]*175Board certify the UMW as the collective bargaining representative of all the production and maintenance employees of coal mining operators who were formerly members of Sewanee, including those who are not now operating but who resume the business of operating coal mines at the end of the strike or before the conclusion of the strike.”
Her decision came down on September 29, 1964, (reported as Sewanee Coal Operators Association, Inc., 152 NLRB 663). The Board affirmed this decision on May 17, 1965, expressing its view that the appropriate unit included not only former members of Sewanee Coal Operators Association who were still in business, but also,
“those not now operating but who resume operating old mines either before or after the conclusion of the strike, and including also those individuals who had sole or controlling interest in a corporation which was a member of Sewanee Coal Operators Association who form another corporation and operate a new or different mine on the geographic area here involved.” (Emphasis supplied.)
A certification consistent with the May 17 decision was issued on June 7, 1965. The UMW, in July, 1965, made a demand upon all the respondents and Tennessee Products to bargain with them. No response was made to these demands and on November 1, 1965, charges of refusal to bargain were filed by UMW. Amended charges were filed in March of 1966, and on April 8, 1966, the complaint here involved was issued. Hearing on this complaint was had in September of 1966 and a decision of a trial examiner finding all respondents and petitioner Tennessee Products guilty of violations of Section 8(a) (1) and (5) of the Act came down on March 28, 1967. The Decision and Order of the Board affirming its Trial Examiner came down on August 22, 1967. The Trial Examiner’s recommended order, adopted by the Board, commanded that some 43 concerns, ex-eluding as an entity the defunct corporate association Sewanee.
“Take the following affirmative action which it is found will effectuate the policies of the Act:
“(a) Upon request, bargain collectively with United Mine Workers of America as the exclusive bargaining representative of employees in the appropriate unit set forth hereinabove, jointly together with the other Respondents (except Sewanee and New Floyd), or together with other persons within the description of the appropriate unit, or separately, as may be mutually agreed upon between the Respondents, or any of them, and the UMW, for a reasonable period, but not less than 12 months, and if an agreement is reached, embody such understanding in a signed agreement.” (emphasis supplied)
III.
The above Decision and Order of August 22, 1967, entered just under five years after commencement of the strike, presented the first opportunity for any employer to obtain judicial review of its inclusion in the multi-employer group. Presumably there has been no bargaining between such a multi-employer unit and the United Mine Workers since the strike of December 26, 1962. We read the end product of the long procedure herein reviewed as a command by the NLRB that no enterprise which, at the beginning of the UMW strike of December 26, 1962, was a member of or had authorized the Sewanee Association to bargain for it, shall ever again mine coal in the State of Tennessee without first bargaining with the United Mine Workers.
We are not persuaded that a mining operation whether carried on as a sole proprietorship, as a member of a partnership, or in corporate form, and whose business was destroyed by the strike and such operator’s inability to meet the terms of the UMW proffered contract should be closed out of ever re-entering [176]*176the mining business except on the UMW terms.
We have had numerous occasions to consider the great power of the United Mine Workers in the coal fields of Tennessee. This power was greatly enhanced by the dealings between the UMW and the big mining companies acting together as the Bituminous Coal Operators Association. Wholly apart from whether the UMW illegally conspired with the BCOA, it was the aim and purpose of the UMW to require that anyone attempting to mine coal in southeastern Tennessee do so only by signing and living up to the terms of the National Bituminous Coal Wage Agreement of 1950 as supplemented by the 1958 Protective Wage Clause. Paragraph A of this Wage Clause provided:
“A. During the period of this Contract, the United Mine Workers of America will not enter into, be a party to, nor will it permit any agreement or understanding covering any wages, hours or other conditions of work applicable to employees covered by this Contract on any basis other than those specified in this Contract or any applicable District Contract. The United Mine Workers of America will diligently perform and enforce without discrimination or favor the conditions of this Contract and will use and exercise its continuing best efforts to obtain full compliance therewith by each and all the parties signatory thereto.”
In the case of Tennessee Consolidated Coal, et al. v. United Mine Workers, 416 F.2d 1192 (6th Cir. 1969), recently announced by this Court, and dealing with the Mine Workers seeking complete control of mining in southeastern Tennessee, Judge Weick observed:
“The record contains an admission by counsel for UMW that the PWC [the Price Wage Clause contained in the contract between UMW and the Bituminous Coal Operators Association] was a ‘quid pro quo.’ Paragraph A was demanded by BCOA. Paragraph B, containing the promise of the signatory operators, was demanded by UMW. In this paragraph the operators agreed to boycott coal not produced in conformity with the national agreement. UMW faithfully complied with Paragraph A in all collective bargaining agreements which it entered into. UMW struck operators who refused to agree to the national contract. The record in Ramsey is replete with evidence of mass picketing, force and violence.” 416 F.2d at 1198.
The Ramsey case referred to in this quotation is reported as Ramsey v. United Mine Workers, 265 F.Supp. 388 (E.D.Tenn.1967), aff’d en banc by equal division of this Court in Ramsey et al. v. United Mine Workers, 416 F.2d 655 (6th Cir. 1969). That case covered substantially the same period of the violent history of coal mining in southeastern Tennessee. Concerning this period, Judge. Wilson said:
“In the period since 1960 the coal operators in the Southeastern Tennessee coal field have been unable to compete and survive in the T.V.A. coal market under the National Bituminous Coal Wage Agreement. While in many instances this appears to have been due to antiquated mining methods and equipment or other causes, the fact nevertheless remains that since 1960 there has not been a single instance of a successful coal mining operation in the Southeastern Tennessee coal field under the National Bituminous Coal Wage Agreement and this in spite of the fact that the only feasible alternative facing most coal operators in the area was to operate under the national contract or go out of business.” 265 F.Supp. at 430. (Emphasis supplied.)
From a reading of the record here and from other cases such as Gibbs v. United Mine Workers of America, 343 F.2d 609 (6th Cir. 1965), reversed, Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), it is clear that the only labor organization that attempted to compete with the Mine Workers was the Southern Labor Union. The few mine operators who tried to operate without signing the Uniform National Bitu[177]*177minous Coal Wage Agreement of 1950 with the Protective Wage Clause of 1958, tried to do so without union men or with members of the Southern Labor Union. The grave and. spectacular violence that attended these efforts is set out with particularity in United Mine Workers of America v. Local No. 7083, (Grundy Mining Company) and Southern Labor Union, 146 NLRB 176 (1964), United Mine Workers of America, Local No. 7244, (Grundy Mining Company) and Southern Labor Union, 146 NLRB 244 (1964). In both of these cases the United Mine Workers were convicted of the violence charged.
Grundy Mining did attempt to operate independently of, and during, the hegemony of the UMW. One Paul Gibbs who had attempted to open a mine, using members of the SLU as his employees, was the object of violence employed by members of the United Mine Workers in the case Gibbs v. United Mine Workers of America, 220 F.Supp. 871 (E.D.Tenn.1963). On review, our affirmance of the Gibbs decision was reversed upon a holding that there was not clear proof that the UMW, as an entity, was responsible for the violent depredations of its members. Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130. In Ramsey, District Judge Wilson described the events that followed the strike here involved and which is claimed to be still in progress.
“With respect to the strike which occurred on December 26, 1962, and which has been in effect since that date, the evidence is clear * * * that the strike has been accompanied by much mass picketing, violence and property destruction. Both sides in the dispute have suffered the effects of such violence, but the operators and those miners who sought to cross the picket lines have suffered much the worse of the violence. Without attempting to itemize the record, it may be said that homes were shot into, burned or dynamited by unidentified assailants. Coal was dumped upon the highway. Trucks and cars were fired upon numerous times. Power poles and mine equipment were dynamited. Coal tipples were burned and mine guards were fired upon. Operators were forced to abandon their mines and equipment for reasons of personal safety, with the mines and equipment suffering heavy losses from mine flooding and vandalism. Several men were killed. One intrepid operator was the intended victim of dynamite thrown into his yard from a speeding car, but he seized the lethal bundle and removed the cap just seconds before it went off. While it certainly adds no luster to the occasion, there were victims to violence upon both sides. The home of the U.M. W. District Representative was damaged by dynamite. Four local union halls were burned. Union men were shot at and union homes were burned.” 265 F.Supp. at 429.
IV.
The law is clear that it is within the Board’s power to put together a so-called multi-employer group and certify the union which will be the exclusive bargaining agent for the employees of all the employers within the multi-employer group. In NLRB v. Truck Drivers’ Union, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957), the Supreme Court said:
“[T]he compelling conclusion is that Congress intended ‘that the Board should continue its established administrative practice of certifying multiemployer units, and intended to leave to the Board’s specialized judgment the inevitable questions concerning multiemployer bargaining bound to arise in the future.’ ” 353 U.S. at 96, 77 S.Ct. at 647.
The power of the Board to order multiemployer bargaining does not derive from statutory enactment. Instead, it is permitted as an instrument of the National Labor Board’s policy and duty — the promotion of industrial peace through effective bargaining. The validity of the Board's exercise of power in any given circumstance depends, then, upon whether it will effectuate the purposes of the Act. [178]*178In this case the Board’s determinations and orders have led to neither effective bargaining nor industrial peace; neither, in our view, were they calculated to serve these ends. The Board’s attempt to sanction the creation and perpetuation of a UMW hegemony in southeastern Tennessee, therefore, cannot stand unquestioned.
The multi-employer unit is a creature based, at its inception, on consent of employees and their employers. NLRB v. Local 210, International Bhd. of Teamsters, 330 F.2d 46, 12 A.L.R.3d 800 (2nd Cir. 1964). In NLRB v. Sklar, 316 F.2d 145 (6th Cir. 1963), we said:
“Membership of an employer in a multiemployer unit is wholly voluntary. The unit can only be created with the consent of the employers. The Board may not force any employer to join a multiemployer unit or prevent him from exercising his right to withdraw therefrom at an appropriate time. The fact that MAD had been a member of a multi-employer unit did not consign it to that status forever. The Board has recognized that an employer may withdraw from the multi-employer unit provided that it clearly evinces at an appropriate time its intentions of pursuing an individual course in bargaining.” 316 F.2d at 150.
In Universal Insulation v. NLRB, 361 F.2d 406 (6th Cir. 1967), we held that under the special facts of that case one employer’s attempt to withdraw from a multi-employer unit, after that unit had begun bargaining and had arrived at a contract with a union, was untimely. We there referred to several NLRB cases and NLRB v. Sheridan Creations, Inc., 357 F.2d 245 (2nd Cir. 1966) which appeared to announce a per se rule that an employer’s withdrawal is untimely after bargaining has begun except on mutual consent. The Board relies on our decision in Insulation and that of the Second Circuit in Sheridan. However, the Second Circuit in NLRB v. Spun-Jee Corporation, 385 F.2d 379 (2nd Cir. 1967) made clear that the per se rule of Sheridan would yield to unusual circumstances. Such is the view of the Tenth Circuit, see NLRB v. Tulsa Sheet Metal Works, Inc., 367 F.2d 55 (10th Cir. 1966), and the Board, itself, see Retail Associates, Inc., 120 NLRB 388, 395 (1958). Here we are not dealing with individual withdrawals of members from a multi-employer unit. If there came into being such a unit, lasting for the short period of the abortive negotiations with the UMW, such unit was completely destroyed by the unusual circumstances outlined at length in this opinion.
Furthermore, it is doubtful that Grundy Mining ever became a member of the multi-employer group. Its membership in Sewanee was conditioned upon a choice by its employees of the UMW as their bargaining agent. Such condition was never, under our view, fulfilled. Additionally, the request by the Southern Labor Union for a separate election for the Grundy employees made clear that such employees did not intend to be part of a multi-employer unit. In NLRB v. Local 210, Internat’l Bhd. of Teamsters, 330 F.2d 46, 12 A.L.R.3d 800 (2nd Cir. 1964), the Court said:
“One basic test is whether the multiemployer unit was created with the approval, express or implied, of the employees in each of the constituent single-employer units.” 330 F.2d at 47. (Emphasis supplied.)
In his dissent from the original Decision and Order of September 30, 1963, Board Member Boyd Leedham stated:
“I construe Grundy’s currently qualified application for membership in Sewanee as conditioned upon separate certification of a union as the majority representative of Grundy's employees. I would, therefore, direct a self determination election among Grundy’s employees. If they select the same bargaining representative chosen by majority of the employees in the multi-employer unit, I would approve them in that unit. On the other hand, in the event that Grundy’s employees select a different representative, or no repre[179]*179sentative, they would be excluded from the multi-employer unit and either constitute a separate appropriate unit, or be unrepresented.”
We are persuaded that the events before and after the election of October 15, 1963, destroyed the consenuality needed to justify the creation and, in all events, the continuation of a multi-employer unit. The abortive effort of the Sewanee Association to come to agreement with UMW before the commencement of the strike, called by the latter, did not foreclose withdrawal, from whatever multi-employer unit may have once existed under the unusual circumstances here present.
We are also of the view that in all events by the time the certification of the UMW as the exclusive bargaining agent of Tennessee Products and the other respondents was made on June 7, 1965, there was not in existence a legitimately identifiable multi-employer unit which could be required to bargain with the UMW. We so hold.2
The alleged Section 8(a) (1), (2) notations.
On July 16, 1964, respondents Poplar Coal Company and Sycamore Coal Company 3 entered into collective bargaining agreements with the Southern Labor Union. On July 1, 1965, the United Mine Workers filed a charge that such contracts violated Sections 8(a) (1) and (2) of the Act, 29 U.S.C.A. § 158(a) (1) and (2),4 claiming that these contracts dominated or interfered with the formation or administration of a union and constituted providing support to the SLU. These charges were consolidated and decided with the 8(a) (1) and (5) violations discussed above. Respondents Poplar and Sycamore asserted in defense the six-month statute of limitations provided in Section 10(b) of the Act, 29 U.S.C.A. § 160(b)5
In addition to their defense of the statute of limitations, Poplar and Sycamore assert that ultimate invalidity of the certification of UMW as the bargaining agent for them absolves them of any violation of § 8(a) (2). It has been held, however, that whether there has been a valid certification or not, an employer’s entry into a contract with one union may be considered violative of the Act where there existed a serious question as to the membership of its employees in the union contractually recognized by the company. NLRB v. North Electric Company, 296 F.2d 137, 139 (6th Cir. 1961); NLRB v. Signal Oil & Gas, 303 F.2d 785, 788 (5th Cir. 1962); Iowa Beef Packers, Inc. v. NLRB, 331 F.2d 176, 182 (8th Cir. 1964); NLRB v. National Container Corp., 211 F.2d 525 (2nd Cir. 1954).
If there was no evidence as to whether all of the Sycamore-Poplar employees, or a majority of them, were [180]*180members .of SLU, the critical question remained unanswered. The Trial Examiner made no finding in this regard. The burden is on the General Counsel to come forward with evidence to support a claim of violation. NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509, 513 (6th Cir. 1964); Lawson Milk Co. v. NLRB, 317 F.2d 756, 760 (6th Cir. 1963); NLRB v. Cleveland Trust Co., 214 F.2d 95, 99 (6th Cir. 1954).
What evidence there was strongly suggested that Flynn’s operation was a small .one, an offshoot of Grundy, trying to operate with SLU, which union had sought a separate election of Grundy’s employees. We entertain serious doubt that the proofs established that the Flynn-SLU contract violated Section 8(a) (2). However, we will not undertake to resolve it, satisfied that prosecution of the charged violation was barred by the limitation provided by Section 10(b).
The charge of violation of Section 8(a) (1) and (2) was not made until July 1, 1965, almost a year after the accused contract or contracts of July 16, 1964. If there was a violation, that is the date it occurred. The assertion of the Board that the contract, to run for three years, was a continuing violation, was considered and disposed of by the Supreme Court’s opinion in Local Lodge No. 1424 v. National Labor Relations Board, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960), where the Court said:
“In any real sense, then, the complaints in this case are ‘based upon’ the unlawful execution of the agreement, for its enforcement, though continuing, is a continuing violation solely by reason of circumstances existing only at the date of execution. To justify reliance on those circumstances on the ground that the maintenance in effect of the agreement is a continuing violation is to support a lifting of the limitations bar by a characterization which becomes apt only when that bar has already been lifted. Put another way, if the § 10(b) proviso is to be given effect, the enforcement, as distinguished from the execution, of such an agreement as this constitutes a suable unfair labor practice only for six months following the making of the agreement.” 362 U.S. at 423, 80 S.Ct. at 830.
We therefore hold that the finding of a violation of Section 8(a) (1) (2) by Sycamore-Poplar was invalid.
Enforcement of the Board’s order is, in all respects, denied.