The opinion
DIANA GRIBBON MOTZ, Circuit Judge,
concurring in part and dissenting in part:
I concur in parts I through III of the majority opinion in which the court refuses to enforce the National Labor Relations Board’s order, based as it was on the old (Res Care) rule. However, I respectfully dissent from part IV in which the majority determines in the first instance that the new (Management Training) rule should not be applied retroactively in this case. I do so because controlling precedent requires that we remand to the Board so that it can determine in the first instance if a new Board rule is to be applied retroactively.
More than twenty years ago, when considering another NLRB case, the Supreme Court, in a unanimous decision, directed:
[ A] court reviewing an agency decision following an intervening change of policy by the agency should remand to permit the agency to decide in the first instance whether giving the change retrospective effect will best effectuate the policies underlying the agency’s governing act.
NLRB v. Food Store Employees Union, 417 U.S. 1 , 10 n. 10, 94 S.Ct. 2074 , 2080 n. 10, 40 L.Ed.2d 612 (1974) (emphasis added). Thus, the Court held that “if the Court of Appeals correctly read [a recent NLRB decision] as having signaled a change of policy ... a remand was necessary, because the Board should be given the first opportunity to determine whether the new policy should be applied retroactively.” Id. at 10 , 94 S.Ct. at 2080 . The Supreme Court has never overruled, modified, or in any way retreated from its position in Food Store Employees. *
Furthermore, in Blackman-Uhler Chem. Div., Synalloy Corp. v. NLRB, 561 F.2d 1118 (4th Cir.1977) (en banc ) (per curiam), this court, in a unanimous en banc decision, expressly followed Food Store Employees. We held that when the NLRB adopted a new rule after its decision in the underlying case, we were required pursuant to Food Store Employees to “remand the ease to the Board for a determination of whether the [new] rule ... is applicable to the instant case.” Id. at 1119 . Like the Supreme Court, we have never suggested that the principle enunciated in Food Store Employees is subject to any exception or modification. Rather, our decisions consistently acknowledge that this principle is mandatory and applies without exception. See, e.g., National Posters, Inc. v. NLRB, 720 F.2d 1358, 1363-64 (4th Cir.1983) (“[wjhere, as here, there is an intervening change of agency policy, the central question is ‘whether giving the change retrospective effect will best effectuate the policies underlying the agency’s governing act,’ and that question is committed, in the first instance, to the agency’s sound discretion”) (emphasis added); Cedar Coal Co. v. NLRB, 678 F.2d 1197, 1199 (4th Cir.1982) (“[r]emand of this case ... is ... mandated by [Food Store Employees ]”) (emphasis added); NLRB v. Cambridge Wire Cloth Co., 622 F.2d 1195, 1200 (4th Cir.1980) (Food Store Employees and Blackman-Uhler require remand to *138 Board in the first instance to determine if new rule should be applied retroactively).
Accordingly, it is not merely, as the majority states, that it “may be appropriate” to remand to the Board “when [it] has not made it clear whether it intends for a new rule to apply retroactively,” Maj. Op. at 135; rather, this course is mandatory. There is simply no Supreme Court or Fourth Circuit precedent for not remanding to the Board so that it can determine in the first instance if its new rule should be applied retroactively. Moreover, the Food Store Employees principle is entirely consistent with, indeed virtually required by, the recognized primacy Congress has bestowed on the National Labor Relations Board with respect to its own rules. See e.g., Garner v. Teamsters, Chauffeurs, and Helpers Local Union No. 776, 346 U.S. 485, 490 , 74 S.Ct. 161, 165 , 98 L.Ed. 228 (1953) (Congress vested the NLRB, “a specific and specially constituted tribunal,” with “primary interpretation and application of its rules”). The majority may disagree with the Food Store Employees principle; it is, to be sure, a conservative principle. However, disagreement provides no basis for refusing to follow a directive of the Supreme Court and controlling precedent of this Court. Rather, this is precisely what is required by faithful application of the rule of law.
In light of the above controlling authority, cases from other jurisdictions are of little relevance here. However, it is worth noting that not even the out-of-cireuit authority relied on by the majority support its holding that a reviewing court can refuse to remand for the Board’s determination, in the first instance, on the retroactivity question. For example, NLRB v. Viola Industries-Elevator Div., Inc., 979 F.2d 1384 , 1396 (10th Cir.1992) 0era banc) does not hold, or even suggest, that a reviewing court “need not remand if applying the new jurisdictional rule retroactively would work a ‘manifest injustice.’” Maj. Op. at 135. The Viola court did not refuse to remand because it found application of a new NLRB rule would be unjust. Nor did it state or imply that a reviewing court could in the first instance determine if a new NLRB rule is unjust. Rather, in Viola, the Tenth Circuit simply held that after the Board has determined that it will apply a new rule retroactively, a reviewing court should uphold that determination unless “manifest injustice would result.” Id. at 1396. The Viola court found that the Board’s retroactive application of the new rule did not result in a manifest injustice and so affirmed that application. Id. at 1397. (“We hold that the Board appropriately applied the [new] rule retroactively in this case.”)
Similarly, none of the other cases discussed in the majority opinion support the conclusion that a reviewing court can determine if retroactive application of a new NLRB rule would work a manifest injustice before any Board determination on this point. Instead, all of these cases describe the standards to be used by a reviewing court after the Board has determined in the first instance that the new rule will be applied retroactively. In one of the cited eases, the court expressly remanded to the Board to make this initial determination. Retail, Wholesale and Dept. Store v. NLRB, 466 F.2d 380, 389-90 (D.C.Cir.1972). In the remaining cases, after the Board applied a new rule retroactively, the reviewing court refused to enforce the Board’s retroactive application, NLRB v. Oakes Machine Corp., 897 F.2d 84 , 90 (2d Cir.1990), or, more usually, upheld the Board’s retroactive application in whole or in part. UFCW Local No. 150-A v. NLRB, 1 F.3d 24, 34 (D.C.Cir.1993); District Lodge 64 v. NLRB, 949 F.2d 441, 447 (D.C.Cir.1991); Consolidated Freightways v. NLRB, 892 F.2d 1052, 1059 (D.C.Cir.1989), cert. denied, 498 U.S. 817 , 111 S.Ct. 59 , 112 L.Ed.2d 34 (1990); General Am. Transp. Corp. v. ICC, 872 F.2d 1048 , 1060 (D.C.Cir.1989), ce rt. denied, 493 U.S. 1069 , 110 S.Ct. 1112 , 107 L.Ed.2d 1019 (1990); Local 900 v. NLRB, 727 F.2d 1184, 1194-95 (D.C.Cir.1984); NLRB v. Affiliated Midwest Hosp. Inc., 789 F.2d 524 , 530 (7th Cir.1986).
The majority’s decision to usurp the Board’s role by determining in the first instance if a new Board rule should be applied retroactively disrupts the orderly process of administrative litigation. Such a decision is thus not only contrary to Food Store Employees, Blackman-Uhler, National Posters, *139 Cedar Coal and Cambridge Wire Cloth, it is also contrary to one of the most fundamental rules of administrative law:
That rule is to the effect that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.
Securities & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 , 67 S.Ct. 1575, 1577 , 91 L.Ed. 1995 (1947). For this reason, other courts have remanded the retroactivity question for Board determination in the first instance, even in cases that had already consumed more time than that involved in this ease. See, e.g., NLRB v. Coca-Cola Bottling Co. of Buffalo, Inc., 55 F.3d 74, 78 (2d Cir.1995) (five years); United Food & Commercial Workers Int'l. Union v. NLRB, 880 F.2d 1422 , 1423-27 (D.C.Cir.1989) (four years).
Indicative of just how contrary the majority’s holding is to controlling precedent, not even the employer, which so mightily benefits from it, maintains that this is the proper course. Although the employer, ABA Services, Inc., does argue that application of the new rule would be “manifestly unjust” and urges us not to apply it, ABA never asserts that it is inappropriate for the Board to make the retroactivity vel non determination in the first instance. Indeed, ABA cites and quotes Food Store Employees and our cases following it and concedes that the Board “must have the opportunity to express its opinion on retroactivity.” ABA Supplemental Brief at 8. The Board has never been given this opportunity. It certainly has never found that retroactive application of its new rule is appropriate in this case.
If given the opportunity, the Board might conclude, as the majority does, that retroactive application of the new rule in this case would result in manifest injustice. On the other hand, if presented with this opportunity, the Board, which is more familiar with the National Labor Belations Act and its underlying policies than any court can ever be, see Garner, 346 U.S. at 488-92 , 74 S.Ct. at 164-66 , might conclude, perhaps on the basis of facts not known or not considered by the majority, that retroactive application is appropriate. In any event, as the employer has conceded, the Board should be given this opportunity. (If lapse of time is a consideration, the Board could be ordered to do this within thirty or sixty days. See Coca-Cola, 55 F.3d at 78 ). After the Board has made its determination as to retroactivity, if dissatisfied, the employer could then seek review in this court. At that time, we would be able to consider the factors set forth in the majority opinion in light of a fully developed record— including the Board’s own reasoning as to the retroactive application of the new rule to this case. The majority’s unauthorized shortcut puts the judicial decision cart before the administrative decision horse.
For these reasons, I respectfully dissent from Part IV of the majority opinion. I would remand the case to the Board so that it could determine in the first instance whether its new rule should be applied retroactively in this case.
Significantly, in indicating that remand to the NLRB for its retroactivity determination was necessary, the Court in Food Store Employees, citing Bradley v. School Board, 416 U.S. 696, 711 , 94 S.Ct. 2006, 2016 , 40 L.Ed.2d 476 (1974), described this course as an exception to the general principle that "[a]ppellate courts ordinarily apply the law in effect at the time of the appellate decision.” Id. at 10 n. 10, 94 S.Ct. at 2080 n. 10. In Bradley , decided just five days prior to Food Store Employees, the Court had explored in great detail another exception to the general principle — the very exception relied on by the majority in this case — that is, the law in effect at the time of the appellate decision is not to be applied if to do so "would result in manifest injustice.” Bradley, 416 U.S. at 711-21 , 94 S.Ct. at 2016-21 . Having so recently decided Bradley , the Supreme Court was certainly well aware of Bradley's exception for "manifest injustice.” Had the Court intended to include the Bradley exception for manifest injustice in the principle announced in Food Store Employees, it would have expressly done so. Its failure to do so precludes us, absent later Supreme Court direction (and there has been no such direction), from using the "manifest injustice” exception prior to agency determination as to whether its rule is to be applied retroactively.