dissenting.
While I agree that the Supreme Court held that the Board in applying its Amoco rule in NLRB v. Financial Institution Employees of America, Local 1182, 475 U.S.-, 106 S.Ct. 1007, 89 L.Ed.2d 151 (1986) exceeded its statutory authority, and that the Supreme Court vacated our prior judgment in United Retail Workers Union, Local 881 v. NLRB, 774 F.2d 752 (7th Cir.1985), and remanded the case to us for reconsideration in the light of Financial Institution, I cannot agree with the correctness of the majority’s disposition upon that reconsideration. I therefore respectfully dissent.
While it is true that the majority opinion does remand the case for further proceedings by the Board, it does so in a manner sharply limiting the Board’s reconsideration and its well recognized jurisdictional primary discretion. It therefore exceeds our jurisdictional authority in a case involving an administrative body. We are a court of review of such proceedings and are not ourselves an administrative body. Any reconsideration must be made in the first instance by the Board.
*424See Bachrodt Chevrolet Co. v. NLRB, 411 U.S. 912, 93 S.Ct. 1547, 36 L.Ed.2d 304 (1973); FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 245-50, 92 S.Ct. 898, 906-08, 31 L.Ed.2d 170 (1972); SEC v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943). Chenery is apparently the seminal case for the proposition that the making of labor policy is for the administrative body and not the courts. Chenery was cited with approval for this proposition in Sperry & Hutchinson.
A court cannot label a practice “unfair” under 15 U.S.C. § 45(a)(1). It can only affirm or vacate an agency’s judgment to that effect. “If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment. Chenery, supra, at 94 [63 S.Ct. at 462].”
405 U.S. at 249, 92 S.Ct. at 907.
In Bachrodt, supra, a petition for certiorari was filed in the Supreme Court challenging a decision of the Seventh Circuit, NLRB v. Bachrodt Chevrolet Co., 468 F.2d 963 (7th Cir.1972). The majority opinion of this court with one exception enforced the Board’s order. Judge Stevens dissented disagreeing with the analysis by the majority of the case of NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972). The Supreme Court in a short order, cited above, granted certiorari, vacated the judgment, and remanded the case “with instructions to remand the case to the National Labor Relations Board for such proceedings as may be appropriate in light of” the Bums case.
While it is true that the remand in the present case was to this court for further consideration in the light of Financial Institution, it appears to me that if the Board’s Amoco rule is to be vacated or amended the ultimate primary line of disposition should be at the Board or administrative level. The Board had adopted the rule as a policy matter and the Board should have the primary consideration as to its future.
While this court has held that Chenery does not require pointless remand, NLRB v. Village IX, Inc., 723 F.2d 1360,1370 (7th Cir.1983), there is to be a remand here in any event and the Board should have the first opportunity, without limitation, of considering the application of Financial Institution to this case and to its Amoco rule in general.
While I might agree that in most any factual context, the Amoco rule now has little vitality, the Board should have the first opportunity of reconsideration of all issues pertaining to the proposed merger here involved.
My position in contrast to that of the majority might seem at first blush to be merely a matter of an unnecessary exercise in semantics. Words, however, are the principal method of communicating meaning, and the meaning of the majority opinion is loud and clear. While it purports to express no opinion on the “remaining issues,” it also expressly holds “that the NLRB cannot require the United Retail Workers to allow nonunion employees to vote on the merger before ordering May Department Stores to bargain with the post-merger union.”
Pursuant to a circuit rule, following the remand, the parties were requested to file statements of position. Both the Union and the Board agreed in their statements that the case should be remanded to the Board for further proceedings in the light of Financial Institution. The Union also requested that the original decision should be vacated. While arguably, the Board could reconsider all aspects of a case even though its prior opinion was vacated by this court, the majority expressly reverses, precluding thereby any reconsideration of its reasoning in its prior decision.
Whether the Board can find any succor in the Amoco rule, as doubtful as that might now seem, it is up to the Board to make that initial determination. This line of demarcation between the executive and judicial branches is an important one and, *425in my opinion, should not be breached as it has been by the majority’s opinion. It appears to me that our obligation on remand was simply, without more, to have remanded the case to the Board for further consideration in the light of Financial Institution.
I do also note what seems to be a gratuitous observation in the majority opinion, that the present case is stronger than Financial Institution because participation by the minimal number of nonunion employees could not have affected the outcome. I also note, however, the union did not apportion the votes among its four local units. Two of these were solely stores of the May Company. The record simply does not show whether the some 2344 votes against the merger with the addition of the votes of the nonunion personnel of May, which had fewer employees than the number of nay votes, would have shown a different result as to May. In fact we do not know what number of nay votes came from May people. The uncertainty can scarcely make any contribution to this being a stronger case. In the event that at some future time, resolution of this issue should become material to disposition, it is for the Board, upon the basis of the record before it, to pass upon the matter.