The opinion
POPE, Circuit Judge
(concurring):
I concur. I think it helpful to note just what the Board decided in Brown and Root, Inc., etc., 132 NLRB 486 , 493 (1961). It there held that the employer has no obligation to seek out or to prefer economic strikers for vacancies which opened up after their applications. The Board in that ease cited Atlas Storage Division, 112 NLRB 1175 , enforced, 233 F.2d 233 , 237-238 (7th Cir.) which held that a company has no duty to seek out an economic striker when no vacancy existed at the time of his request to return to work, but rather opened up later. The Board in the later case went on to say that the employer’s duty was merely to refrain from discriminating against the striker should he request employment again.
Plainly the holdings in those cases precisely fit the question raised here. When these complaining employees applied for reemployment on August 20th, 1964, there was no vacancy. Some of them reapplied later, but there is no proof that any vacancies existed at those times either. Under the rule of the above cases, the employer owed no duty to seek out or prefer these strikers for the positions that opened between October 8th and October 16th, 1964.
The examiner wholly disregarded these earlier rulings, saying “The Board has held that employees who have not been permanently replaced before the end of a strike must be reinstated to their former positions as work becomes available and before new employees are hired.” That was an incorrect statement.
I do not question the right or power of the Board to change its rules from time to time. But when the employer here hired these six new employees, it did exactly what the Board had held it had the right to do. To change its declared policy, and make the change apply retroactively to the respondent’s acts which were entirely proper when performed was arbitrary, capricious and an abuse of discretion — the sort of thing the Administrative Procedure Act, Title 5, § 1009 (e), directs us to set aside. In National Labor Relations Board v. Guy F. Atkinson Co., 195 F.2d 141, 149 (9th Cir.), we said:
“We think it apparent that the practical operation of the Board’s change of policy, when incorporated in the order now before us, is to work hardship upon respondent altogether out of proportion to the public ends to be accomplished. The inequity of such an *131 impact of retroactive policy making upon a respondent innocent of any conscious violation of the act, and who was unable to know, when it acted, that it was guilty of any conduct of which the Board would take cognizance, is manifest. It is the sort of thing our system of law abhors.”