The opinion
CLARK, Circuit Judge
(concurring).
As indicated in the opinion I agree except that for my part I am satisfied we are correctly applying the Express Publishing ruling. That ruling was explicitly restricted to the situation there present of failure of negotiations leading to the employer’s refusal to bargain, contrary to § 8(5) of the Act, with a union in all other respects left undisturbed. But, as the Court says at page 434 of 312 U.S., 61 S.Ct. at page 699, 85 L.Ed. 930 , this was “wholly unrelated to the domination of a labor union or the interference with its formation or administration or financial or other support to it,” contrary to § 8(2), or discrimination against union employees, contrary to § 8(3). The Court thus neatly separated the issue before it from the two most burning issues in labor relations— those of “company unions” or of discriminatory treatment of employees — where violations go to the very heart of the Act. N. L. R. B. v. Entwistle Mfg. Co., 4 Cir., 120 F.2d 532, 536 ; N. L. R. B. v. Air Associates, 2 Cir., 121 F.2d 586, 592 ; N. L. R. B. v. Reed & Prince Mfg. Co., 1 Cir., 118 F.2d 874, 891 , certiorari denied 313 U.S. 595 , 61 S.Ct. 1119 , 85 L.Ed. 1549 .
Hence I do not believe the Court intended drastically to limit the Board’s discretion to determine the appropriate remedy to be applied in these two most important situations. In due course the Court may wish to define its ruling further; the justices were sharply divided, the decision provoked doubt among commentators, 1 and its effect has now to be sharply debated in most of the Board’s cases coming before us. It appears to have been cited, with varying divergences, in some seventy-five cases in the little over two years since its rendition. But until we are told more, I am convinced our previous decisions should stand and do control here.
41 Col.L.Rev. 911, 29 Geo.L.J. 1026, 39 Mich.L.Rev. 1219, 27 Va.L.Rev. 956, 26 Wash.U.L.Q. 554; cf. 53 Harv.L.Rev. 472.