(dissenting).
There have been two decrees in this matter, one entered in January last, the second in May. Each denied enforcement of the Board’s order.
The first decree was ordered vacated following upon the adverse decision in National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. -. However, the original opinion of the court (109 F.2d 194) was not withdrawn. The same course is pursued now, the second decree being vacated but not the second opinion. 112 F.2d 63. The opinions stand as the official pronouncement of the court. In them and in the third now handed down the majority continue to elaborate their views with respect to an issue already adversely determined, and which, in any event, in the light of existing Board rules, has long ceased to have any practical importance.
What is the purpose of this novel procedure? If it were the thought to withdraw the decree as improvidently entered and eventually to dispose of the case in harmony with existing decisions of the court of last resort, I would have no objection to the action now taken. But this is far from the aim of my associates. If I correctly read the opinion, a principal object is to forestall review because it is felt that the question of law involved will be presented in the Supreme Court under conditions of which the majority do not approve.
The National Labor Relations Board is a coordinate agency, burdened with heavy responsibilities and answerable, not to us, but to Congress for the spirit in which its responsibilities are discharged. The Board not only has the right, it is its duty to seek in the Supreme Court authoritative interpretations of the law under which it operates. The notion that this court is to exercise a form of censorship of the circumstances under which the Board may seek review of disputed questions, or under which the Supreme Court may determine them, is so fantastic as to defy comment.
The case itself has become submerged. I am reluctantly persuaded that my colleagues have converted it into a mere vehicle for the perpetuation of an argument. By the simple process of the entry and vacation of decrees and the concurrent handing down of opinions I see m> reason why the argument may not go on indefinitely, but I fail to see how this judicial filibuster comports with the orderly administration of justice or in what way it facilitates the prompt disposition of the public business involved.
For these reasons, and upon the grounds set forth in previous dissenting opinions (National Labor Relations Board v. Sterling Electric Motors, 9 Cir., 109 F.2d 194, 210; Id., 9 Cir., 112 F.2d 63, 69), I dissent.