The opinion
KENNEDY, Circuit Judge,
concurring:
I am pleased to concur in Judge Solomon’s cogent opinion. Candor requires recognition, though, that our holding is not consistent with a broad statement in one of our recent precedents. In Financial Institution Employees of America, Local 1182 v. NLRB, the court stated “[i]t is irrational to discard an effective procedure ...” even when the Board has determined that a new rule is preferable. 752 F.2d 356 , 366-67 (9th Cir.1984). See also Machinists Local 1327 v. NLRB, 725 F.2d 1212 , 1218 (9th Cir.1984). In my view, both the holding and the quoted statement in Financial Institution Employees were wrong; but the court declined to take the case en banc. See Financial Institution Employees of America, Local No. 1182 v. NLRB, 750 F.2d 757 , 757-58 (9th Cir.1985) (dissents from failure to take en banc). Confronted with the quoted statement in the context of the case now before us, we must either apply it and reverse the Board, or announce it was a dictum unnecessary to the decision in Financial Institution Employees. I adopt the latter course, though it is not a very good way to run the circuit. I see no alternative, however, if the court declines to take en banc those case which are both wrong and overwritten.