The opinion
CLARK, Circuit Judge
(dissenting).
Judge FRANK’S initially fine statement of the law seems to me to run down to an inconclusive end. I am opposed in principle to any course which serves to drag out litigation essentially determined for the satisfying of procedural niceties. This case seems to me of this sort. For the Board found explicitly that the statements in the letters were no more than “campaign propaganda” within “the proper bounds of concerted activity” and hence “that Penchansky’s discharge because of his part in this concerted activity constituted a violation of Section 8(a) (1) and (3) of the Act.”' Whatever the Board is supposed to do on this remand, I should think that this clear statement shows what its ultimate conclusion must be and is.
But if I understand what the remand is-to ascertain, I think it based on a misreading of the record. The settlement of July 22, 1949, was of an earlier case, on a. charge dated May 24, 1949, of one Melnick for the firing of himself and another employee, Cohen, on May 23. It did not involve the discharge of Penchansky, whose charge (as the Board carefully points out) was filed on the very day of the prior-case settlement, July 22. The letters were written on July 8 and 12, while the picketing, according to Penchansky, took place “the week after July 13” or after his discharge. Later he did say he participated in a picket line in August without defining it further or showing whether it was a renewal or some new development. In any event I fail to see how this circumstance may be used to put a construction upon the letters which they -had not borne earlier. It would seem natural that the union might resume the justified course of protesting Penchansky’s discharge, which had not been redressed and which led eventually to the issuance of the Board’s complaint. But in-fact the picketing could have been proper *655 for a variety of reasons so long as they fell short of the reason the Board refused to find, to wit, attempted compulsion of union recognition during the pendency of representation proceedings. I do not see how a remand can change any of this or show the letters now to be different from what the Board has found them to be. So a remand for a recharacterization of the letters would seem unnecessary and hence undesirable in any event. Moreover, the mandate to the Board seems to me particularly confusing and ambiguous in its directive. What does the “context” mean beyond just what the Board has been considering? And “the letters showed” to whom? To the employer subjectively? Surely that is not.a proper construction, but that seems all that is left to be considered. I hope the Board can see its way more clearly than I.
All this confusion to be now Continued for months or perhaps years cannot make for settled or smooth labor relations in this plant. In my judgment an enforcement order should issue at once.