Financial Institution Employees of America, Local No. 1182 v. National Labor Relations Board

join, dissenting from denial of rehearing en banc:

I dissent from the court’s failure to hear this case en banc and to consider the con *758 flict we create with the Fifth Circuit on an important issue of labor law. See Local Union No. 4-14 v. NLRB, 721 F.2d 150 (5th Cir.1983).

Quite apart from the labor law question presented, the panel opinion is disturbing for a misapplication of a fundamental legal category, the concept of reason. Since the writings of Cicero, if not before, it has been recognized that the fair application of law to a particular dispute, as well as the underlying theory of justice in a more universal sense, depends on reason. Cicero, De Legibus Book II (C.W. Keyes trans. 1977). Reason is a juridical concept essential for the constancy of our decisions, and we undermine it if we use the term “irrational” to express disagreement with a proposition supported by articulated premises within the boundaries of tenable argument.

We must uphold a Board rule unless it lacks rationality or is inconsistent with the statute. Beth Israel Hospital v. NLRB, 437 U.S. 483, 501 , 98 S.Ct. 2463, 2473 , 57 L.Ed.2d 370 (1978); NLRB v. Nevis Industries, Inc., 647 F.2d 905 , 909…

ORDER DENYING PETITION FOR REHEARING AND REJECTION SUGGESTION FOR REHEARING EN BANC *

The panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the en banc suggestion and an active judge requested a vote on it. The request having failed to receive a majority of the votes of the active judges, the petition for hearing is denied and the suggestion for rehearing en banc is rejected.

Panel opinion, 9th Cir., 752 F.2d 356 .

join, dissenting from denial of rehearing en banc:

I also dissent from the court’s failure to take this case en banc. I simply cannot accept the panel’s judgment that the NLRB rule at issue represents “an unreasonable or unprincipled construction of the statute____” Ford Motor Co. v. NLRB, 441 U.S. 488, 497 , 99 S.Ct. 1842, 1849 , 60 L.Ed.2d 420 (1979). Given the wide latitude we must accord the NLRB’s exercise of its rule-making authority, I agree with the Fifth Circuit that the rule falls within the bounds of NLRB discretion. Local Union No. 4-14 v. N.L.R.B., 721 F.2d 150 (5th Cir.1983). In my view, en banc review is justified because the panel decision creates an unnecessary conflict in the circuits.