concurring:
Deklewa v. International Association of Bridge Workers, Local 3, 282 NLRB 184 (1987), is a new and authoritative interpretation of Section 8(f). The Board rejects the judicial gloss on the statute which permitted parties to 8(f) agreements unilaterally to repudiate their agreements. The Board rejects the distinction between “permanent and stable” and “project by project” work forces.
The Board’s interpretation is a reasonable interpretation and application of the National Labor Relations Act and is therefore entitled to deference. NLRB v. Action Automotive, Inc., 469 U.S. 490, 496, 105 S.Ct. 984, 988, 83 L.Ed.2d 986 (1985). The Board applied its new rules retroactively, and there is no reason that we should not follow this retroactive application. However, Deklewa is contrary to previous circuit law. The circuit should take the opportunity now to correct this law en banc in accordance with Deklewa. The old law is not only contrary to the present authoritative administrative interpretation of the National Labor Relations Act; it is also contrary to the federal preference for arbitration over litigation in the federal courts. The old law is also a judicial gloss on a statute that has the effect of derogating from normal principles of contract.