UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 17, 1982
UNITED OIL MANUFACTURING CO., INC., PETITIONER
NATIONAL LABOR RELATIONS BOARD, RESPONDENT
SUR PETITION FOR REHEARING
Present: SEITZ, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges
The petition for rehearing filed by Petitioner, United Oil Manufacturing Co., Inc., in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Judge Hunter would grant rehearing.
Judge Weis joins in the following statement made by Judge Garth:
I would grant the petition for rehearing because I agree with the petitioner and with Judge Van Dusen's dissent that the panel result here is in direct conflict with our decision in NLRB v. K & K Gourmet Meats, 640 F.2d 460 (3d Cir. 1981). Moreover, the Board's reasoning in issuing a bargaining order here, rather than ordering the preferred remedy of an election, is not only contrary to the teaching of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), but in the words of Judge Van Dusen it is "nothing less than a perversion of [Gissel] . . . " (Van Dusen, J., dissenting, slip op. at p. 18). In essence, by upholding the Board's bargaining order, the panel has virtually given carte blanche to the Board to impose bargaining orders when the spirit moves it, and to do so in complete disregard of Gissel.
Because I have previously expressed myself on this subject in a number of opinions. the most recent of which are NLRB v. Permanent Label Corp., 657 F.2d 512, 528 (3d Cir. 1981) (en banc) (Garth, J., dissenting); NLRB v. Eastern Steel, 671 F.2d 104, 112 (3d Cir. 1982) (Garth, J., dissenting), and NLRB v. National Car Rental, No. 81-1180 (3d Cir. filed Feb. 18, 1982) (Garth, J., dissenting), I see no need to repeat my views which I have set forth in those writings.
I would therefore grant the petition for rehearing in this case.
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