dissenting:
I would have the court decide the issue whether Galaxie is a “successor” to FMG.
The majority decides that courts of appeals have jurisdiction to make initial determinations of an employer’s status as a successor, but concludes for reasons of policy that “in all but the clearest cases” the Board should first resolve that issue. I agree that we have jurisdiction, but disagree that the issue of successor status should be remanded to the Board.
This is an original proceeding in which the Board asks this court to find the accused, Galaxie, in contempt of the court’s May 1, 1981, judgment enforcing a Board order. Our order was directed to FMG and “its officers, agents, successors, and assigns.” The Board first instituted contempt proceedings against FMG. Following sale of FMG’s business to Galaxie and Board investigation, it amended its petition to accuse Galaxie of contempt. The Board chose to take this path, rather than first bringing an administrative action against Galaxie as in Golden State, or seeking leave of the court to conduct supplemental proceedings as in Ozark Hardwood. Here, the Board chose to stand as the accuser and should be treated like any other litigant.
Judicial precedent on the proper function of the court in a contempt proceeding involving an alleged “successor” is scanty and inconclusive. Golden State was not a contempt proceeding; it and Southport' both concerned enforcement of Board orders. The Supreme Court’s only direction regarding contempt proceedings is found in Southport where the court stated:
Whether there was a bona fide discontinuance and a true change of ownership— which would terminate the duty of reinstatement created by the Board’s order— or merely a disguised continuance of the old employer, does not clearly appear, and accordingly is a question of fact properly to be resolved by the Board on a direct resort to it, or by the court if contempt proceedings are instituted. Southport, 315 U.S. at 106, 62 S.Ct. at 456 (1942).
This suggests that the court has a duty to determine successorship issues when contempt proceedings are instituted, even where the correct result “does not clearly appear.” Id.
Of the circuit court cases discussed by the majority, only three, Aquabrom, Computer Sciences and Tempest, were contempt proceedings. In Aquabrom, the court remanded the issue of successorship to the Board but retained jurisdiction. In Computer Sciences the court dismissed the Board’s petition for contempt. In Tempest, the court decided the issue of successorship without hesitation. Available precedent leaves the court with three choices; I would follow the Tempest court.
Both judicial responsibility and economy to the parties urge that we determine whether Galaxie is FMG’s “successor.” We should bear in mind that in this instance the administrative body is the accuser and that a finding of contempt is a judicial function. Contempt proceedings may be instituted only by the Board. Southport, 315 U.S. at 106 n. 5, 62 S.Ct. at 456 n. 5 (1942), citing Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738. This makes it all the more important to delineate between judge and accuser. We have the Board’s expertise as the initiator of this proceeding. We should put the Board to the task of proving its case.
*295-299We used the word “successor” in our order of May 1981; we should not ask someone else to define it. By confessing uncertainty, as the court does today, we put in the hands of everyone against whom we rule the power to delay our enforcement by presenting something other than the “clearest” case. The majority does not say what the court should do in the event the Board determines Galaxie is a successor. As was the case in Ozark Hardwood, Galaxie may still be free to challenge that finding. I also foresee other, broader issues, relating to contempt, that will need to be referred to a Special Master even after the Board’s ruling on successorship.
I would have the court decide the issue of successorship along with any other issues that may attend this proceeding.