The opinion
McGOWAN, Circuit Judge
(concurring separately):
I share the view of my colleagues that (1) the petitioning union is not entitled to a reversal of the Board’s action as a matter of law by virtue of NLRB v. Fruit and Vegetable Packers, etc., 377 U.S. 58 , 84 S.Ct. 1063 , 12 L.Ed.2d 129 (1964), and (2) the Board erred in finding that the first work stoppage occurred on May 20 rather than on May 19. Because the Board itself appeared to attribute some significance to this erroneous finding, I would normally have felt that a remand to the Board would have been necessary. It is not our function to speculate as to how the Board would have decided the case absent the mistaken factual assumption. It might well, as my colleagues conclude, have come out the same way in this instance, but that is *204 for the Board to say, especially in a case where the Board has in terms made something of the mistaken fact in reporting its initial conclusion.
But the hearing of this appeal eventuating in relief of this kind might have been wholly unnecessary if the union had sought reconsideration, as it was entitled to do, pointing out to the Board the error it had made rather than waiting to raise the matter here for the first time. This is not to say that a petitioner for judicial relief must invariably first seek reconsideration at the Board level. It is to emphasize that this particular petitioner agreed to waive a hearing and to submit the case directly to the Board on a stipulation of facts and with the opportunity to file a brief articulating what that stipulation showed. The General Counsel availed himself of that opportunity. The union did not. When the latter thereafter thought to detect in the Board’s opinion a mistaken reading of the stipulation, every consideration of policy affecting conservation and the improving use of the Board’s time and of ours argued for prior resort to the Board.