The opinion
On Petition for Rehearing.
DENMAN, Chief Judge and ORR, Circuit Judge.
Although the contention was not made in his assignment of errors, respondent contends that an order ■ of dismissal recommended by the trial examiner in his first-report became the order of the Board because no exception was filed thereto, citing Section 10(c) 1 of the Act,- which provides, inter alia: “In ca'se the evidence is -pre-' sented before a member of the Board, or before an examiner or examiners thereof, such member, or such- examiner or "examiners as the case may be, shall issue and cause to be served on the parties- to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period, as the Board may authorize, such-recommended order shall become the order of the Board and become effective as therein prescribed.”
Assuming the order thus became the order of the Board, we do not agree with the contention that the Board lost control over the order and that it must be considered the final adjudication in the proceeding. The above quoted provision is immediately followed by Section 10(d), 2 providing that “Until a transcript of the record in a case shall have been filed in a court, as hereinafter provided, the Board may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set -aside, in whole or in part, any finding or order -made or issued by it.”
We think Section 10(d) gave the Board the power to take the action resulting in the order which we have considered in our opinion.
The petition, for rehearing is denied.
STEPHENS, Circuit Judge, concurs in the denial of the petition, reserving the dissent expressed in his opinion.
. 29 U.S.C.A. § 160 (c).
. 29 U.S.C.A. § 160 (d).