Before LUMBARD, Chief Judge, SWAN, WATERMAN, CLARK, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.
Per Curiam: The respective petitions for rehearing are severally denied. Judge Swan has filed a memorandum, appended hereto. Chief Judge Lumbard adheres to his dissenting opinion heretofore filed.
Without objection to the opinion of Judge Waterman heretofore filed on October 18, 1962 is amended as follows: Amendments to the prior opinion are reported in place.
SWAN, C. J.: The intervenors' petition for rehearing asserts that because I concurred in the result of Judge Waterman's opinion "there is no opinion of the Court to guide the Board, the parties in this case, or the unions or employers who will inevitably find themselves in similar situations in the future." I concurred in the result not because I disagree with anything stated therein (I do not) but because Judge Waterman's opinion failed to include certain additional grounds for affirmance which I thought relevant.
Per Curiam: All of the active judges concurring, except Judge Clark, Judge Smith and Judge Hays who vote to grant, the petition for rehearing in banc is denied.
Judge Clark dissents in separate opinion.
CLARK, C. J. (dissenting from the order denying rehearing in banc ): On any of the principles governing the selections of cases to be heard in banc either suggested intermurally or of which I can conceive, the present case would seem a fortiori one for such consideration. There can be no question of the importance of the issue; and the present departure from previous holdings of this court and of the Supreme Court, even if not as clear as I believe it to be, certainly presents a prima facie case of conflicting precedents. Further, the decision, which rejects the expertise of the National Labor Relations Board, is made by only one of the active judges, with the concurrence of a senior judge and against the powerful dissent of the Chief Judge. An additional anomaly is that the vote on the present order, together with this dissent, shows at least four active judges discontented with the decision; since only one active judge is recorded in favor of it, it seems highly probable that it represents the views at most of only a minority of the court. Because our in banc proceedings have actually settled so little, have emphasized division rather than allayed it, I could view with equanimity a decision, if legal, to return to our old course of hearing no cases in banc ; but our present discriminatory approach, with its correlative consequence, as in a case such as this, of misstating the real position of the court and misleading litigants and others properly interested, seems to me wholly undesirable.
Here we are dealing with the sensitive area in labor relations of the secondary boycott, and particularly with the proviso for "primary picketing" expressly permitted by § 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(ii) (B). It seems clear and essentially conceded that the union acts in issue would be within the proviso except that they occurred on the railroad right of way, and not on Carrier's premises. But this emphasis on bare legal title has no connection with the purpose or effect of the proviso, and appears to be the statement of a distinction without a difference. Moreover, it is expressly disclaimed in United Steelworkers of America, AFL-CLO v. N.L.R.B ., 2 Cir., 289 F.2d 591, 594, and in Local 761, International Union of Electrical, Radio & Machine Workers, AFL-CIO v. N.L.R.B ., 366 U.S. 667, 678-681, citing the Steelworkers case with approval.Thus the situation calls strongly for review by the entire court.