c33:No. 45, Docket 33277

FRIENDLY, Circuit Judge
(concurring).
I would join with Chief Judge Lumbard if I felt free to do so, as I did when I wrote NLRB v. Superior Fireproof Door & Sash Co., 289 F.2d 713, 723-724 (2 Cir. 1961) to which he pointedly refers. However, that decision was rendered before the Supreme Court’s opinion in NLRB v. Katz, 369 U.S. 736, 748 fn. 16, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). As I stated in my concurring opinion in Bryant Chucking Grinder Co. v. NLRB, 389 F.2d 565, 572-573 (2 Cir. 1967), the footnote in Katz “was couched in terms so strong that to impose an exception requires more boldness than I possess” in cases where the employer has refused to recognize a union representing a majority or “to negotiate in fact,” 369 U.S.. at 743, 82 S.Ct. at 1111. Undue delay by the Labor Board in processing such cases creates a painful dilemma between allowing an employer to get away with tactics aimed at destroying the one-time choice of the employees and forcing upon them a union that may not be their present choice. I read Katz as saying that the Board’s value judgment on that issue is beyond a reviewing court’s power to disturb, even in as extreme a case as this. The situation in NLRB v. General Electric Co., 418 F.2d 736 (2 Cir.), decided October 28, 1969, appeared to me to be different, for reasons outlined in the concluding section of my opinion in that case and unnecessary to repeat here.
LUMBARD, Chief Judge
(dissenting).
I dissent.
My colleagues grant enforcement of a Board order which would require Staub to bargain with Local 39 as the representative of its production and maintenance employees although the closely contested election which conferred this status took place more than six years ago, in July of 1963.
The long delay between the expression of employee choice and final enforcement is due almost entirely to the time the Board itself has taken to process this case. Meanwhile, there has been an almost complete turnover of the production and maintenance employees. According to respondent’s counsel at oral argument, 90 per cent of the laundry workers who voted in 1963 are no longer employed at Staub’s plant — a statement which was not disputed by the Board.
Thus, a proceeding designed to secure speedy recognition for the choice of the employees has — primarily by action of the Board itself — been emasculated to the point where it can be said beyond doubt that there is no basis whatever for supposing that Local 39 is the choice of the employees for whom it is now empowered to act.
The problem of administrative delay has drawn increasing attention from courts and commentators. Professor Davis has stated that “[o]ne of the supposed advantages of the administrative process is speedy disposition of controversies, But the unfortunate fact is that many administrative hearings are slower than comparable judicial proceedings.” 1 Davis, Administrative Law Treatise 549-50 (1958); see also, Goldman, Administrative Delay and Judicial Relief, 66 Mich.L.Rev. 1423 (1968); Note, Judicial Acceleration of the Administrative Process; The Right to Relief From Unduly Protracted Proceedings, 72 Yale L. J. 574 (1963). Davis also points out that as early as 1955 the President’s Conference on Administrative Procedure recommended “[t]hat every agency consider delay * * * in adjudication and rule-making procedures to be detrimental to the public interest.” Rep.Pres.Conf. on Admin.Proc. 13 (1955). Criticism of agency delay was an important feature of the recent report of the American Bar Association Committee which studied the Federal Trade Commission at the request of President Nixon, Rep. ABA Comm, to Study the FTC 28-32 (1969).
Specifically, delay by the NLRB has been the subject of increasing judicial comment in recent years. See e. g., Deering Milliken v. Johnston, 295 F.2d 856 (4th Cir. 1961); N.L.R.B. v. Adhesive Products Corporation, 281 F.2d 89 (2d Cir. 1960); N. L. R. B. v. Marcus Trucking Co., 286 F.2d 583 (2d Cir. 1961); N. L. R. B. v. Superior Fireproof Door & Sash Co., 289 F.2d 713 (2d Cir. 1961); N.L.R.B. v. Mastro Plasties Corporation, 354 F.2d 170, 180-1 (2d Cir. 1965); J. H. Rutter-Rex Mfg. Co v. N. L. R. B., 399 F.2d 356 (5th Cir. 1968), cert. granted 393 U.S. 1116, 89 S.Ct. 991, 22 L.Ed. 2d 121 (1969); Clark’s Gamble Corporation v. N. L. R. B., 407 F.2d 199 (6th Cir. 1969); N. L. R. B. v. Patent Trader, 415 F.2d 190 (2d Cir. July 29, 1969). See also, Bryant Chucking Grinder Co. v. N. L. R. B., 389 F.2d 565, 574-575 (2d Cir. 1967) (Anderson, J., dissenting); N. L. R. B. v. Marcellus Vault & Sales, Inc., slip op. 3513, 3524-9 (2d Cir. October 1, 1969) (Waterman, J., dissenting). While this body of judicial dissatisfaction has been accumulating, the Board has stressed that it is always striving to improve efficiency and avoid delay. In 1961, a former general counsel of the NLRB wrote that “to discharge its mission an administrative agency must have the confidence of the public it serves, and the first step toward earning such confidence again lies in the expeditious dispatch of the business entrusted to it. * * * ” Rothman, Four Ways to Reduce Administrative Delay, 28 Tenn.L. Rev. 332, 332-3 (1961); see generally 33rd Annual Rep. of N.L.R.B. (1969).
Surely where the lapse of time is chargeable to the snail-like pace of the Board there must be some point at which the courts have the power and the duty to withhold a grant of enforcement. I do not know exactly where that line should be drawn, but I am convinced that in this case the Board has gone beyond the permissible limit. Where it is so clear that a proposed order is totally inappropriate due to the situation which now exists, it seems to me that it is the duty of this court to deny enforcement. The action of the majority comes close to saying that passage of time can never make a difference — a position which in my view cannot be good sense and ought not to be the law.
To appreciate just how needlessly protracted has been the history of this proceeding, one need only list the chronology of principal events:
July 2b, 1963. The union won the second Board-conducted election held at the Staub plant by a vote of 45 to 37, with 5 challenged ballots. The first election, which had been held June 3, 1963, was set aside by the Regional Director, who also ordered the second election. Staub promptly made application to the Regional Director claiming that rumors, described in the majority opinion, had affected the outcome of the election.
August 19, 1963. The Regional Director certified Local 39 as the bargaining representative of the Staub plant production and maintenance employees. Staub promptly sought review of the Regional Director’s action.
September 27, 1963. The Board denied Staub’s request for review of the Regional Director’s certification and Staub’s request for a hearing on its objections based on the rumors on the ground that no substantial factual issues were presented. In the late fall of 1963, the Regional Director issued an unfair labor practice complaint against Staub.
August 11, 196b. The NLRB issued its original order directing Staub to cease and desist from violating sections 8(a) (1), 8(a) (3), and 8(a) (5), and to bargain with Local 39. The Board petitioned this Court for enforcement, and the case was argued here on October 26, 1965.
March 9, 1966. This Court upheld the Board’s findings as to the 8(a) (1) and 8(a) (3) violations, but, in connection with the 8(a) (5) charges, remanded the case to the NLRB for the purpose of holding a hearing to consider the effect of the rumors on the election. N. L. R. B. v. Staub Cleaners, Inc., 357 F.2d 1 (2d Cir. 1966). On April 29, 1966, the Board remanded the case for a further hearing, which was conducted by a Trial Examiner on June 28, 1966.
August 28,1966. The Trial Examiner rendered his Supplemental Decision holding that the rumor had affected the employees’ free choice in the election.
Almost 21 months went by without action by the Board.
May 13, 1968. The Board issued its Supplemental Decision and Order, before us on the instant application for enforcement, reversing the Trial Examiner’s Supplemental Decision of August 23, 1966, finding refusal-to-bargain violations, and ordering Staub to bargain with Local 39.
Another year passed.
May 15, 1969. The Board filed the instant application to enforce its Order of August 11, 1964, which it had reaffirmed in its Supplemental Order of May 13, 1968.
In the present case, although my colleagues characterize the Board’s order as a “stale mandate,” they are inclined to ignore its effect. At oral argument, the Board was unable to cite to us any case in which comparable proceedings were delayed nearly as long as this. To me, the most disturbing time lag is the period from the Trial Examiner’s Supplemental Decision to the Board’s Supplemental Decision reversing the Trial Examiner — a period of almost 21 months. I cannot believe that the Board’s delay was occasioned by the overwhelming complexity of issues which the Trial Examiner needed only two months to decide ; the issues which they were directed to resolve by our earlier opinion were quite simple. And, on top of this 21-month delay the Board took an additional twelve months before it applied for enforcement of its Supplemental Order of May 13, 1968.
In Superior Fireproof Door, supra, Judge Friendly’s opinion for a unanimous court scored the “inordinate delay that characterized the course of this proceeding before the Board.” Id,., 289 F.2d at 723. Discussing a case that was delayed far less than the present action, Judge Friendly stated:
“The average time lapse between the filing of a charge and final decision of the Board is 475 days, see Organization and Procedure of the National Labor Relations Board, Report to the Senate Committee on Labor and Public Welfare, S.Doc. No. 81, 86th Cong., 2d Sess. (1960), pp. 1-2. Here the time lapse was 1015 days, 471 of these intervening between the filing of the charge and the issuance of the complaint. We suggested at the argument that the Board might wish to proffer some explanation of this in its reply brief; it chose not to do so but rather to argue that the delay, while ‘unfortunate,’ is not prejudicial since no backpay is involved.” Id.
In reasoning which seems to me to apply here, Judge Friendly went on to argue that the court is bound to recall that the policy of the National Labor Relations Act is to encourage collective bargaining by employees through representatives of their own choosing. Id., at 724: see also, N. L. R. B. v. Adhesive Products Corporation, supra, 281 F.2d at 92.
The only way to put an end to such inordinate delays, and to prevent even longer delays, is to tell the Board that the federal courts will not issue an order of enforcement when it is apparent that, because of the lapse of time for which the Board is responsible, such order is wholly inappropriate as it would no longer be relevant to the situation which the proceeding was originally designed to correct.
I would deny enforcement of the Board’s order.

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