The opinion
HEALY, Circuit Judge
(dissenting).
On the reargument in this case respondent Sterling Motors applied to the court for leave to adduce additional evidence, in conformity with § 10 (e) of the act, 29 U.S.C.A. § 160 (e). Leave was granted and the matter is again before the Board for the taking of further testimony. The point of fact to be inquired into is the crucial one on which the Board largely predicated its finding of an unfair labor practice and its order *70 disestablishing the employee union as a bargaining agency. • ■
The statute, § 10 (e), provides that the Board may “modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, * * * and shall file its recommendations, if any, for the modification or setting aside of its original order.”
In this posture of the case, with the question of law dealt with in the majority opinion threatening to become moot, I regard its decision at this, and for the second, time as not only unnecessary but as ill advised. That would be true, I think, even though the question were still open to rational debate. But debate, in inferior federal courts at least, has been foreclosed by National Licorice Company v. National Labor Rel. Board, 60 S.Ct. 569 , 84 L.Ed. -, decided March 4th of this year.
There the Supreme Court unanimously rejected the construction given the act by this court in its original opinion, 109 F.2d 194 . In the present opinion, the majority merely reiterate what they said before. While studiously aimed at the Board, the real target of the present attack would seem to be the Labor Relations Law itself or the Supreme Court’s interpretation' of it.