Before MEDINA, FRIENDLY and SMITH, Circuit Judges.
Per Curiam: The National Labor Relations Board petitions for rehearing of so much of our decision as conditioned enforcement of the portion of its order requiring respondent to bargain with Local 66 as to the Scranton employees on the holding of an election. The petition is denied.
The Board claims the imposition of this condition violated the provision, in § 10(e) of the Act, 29 U.S.C. § 160(e), that "no objection that has not been urged before the Board * * * shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances," since, as it contends, respondent's request for such a condition was first made in its brief in this Court. We find it unnecessary to consider whether respondent's consistent objection before the Board to any order requiring it to bargain with Local 66 did not fairly raise the lesser question whether any direction to bargain should not at least be conditional on ascertaining whether the employees still desired this, see N.L.R.B. v. Revere Metal Art Co ., 280 F.2d 96, 105 (2 Cir. 1960), cert. denied 364 U.S. 894 (1960), or whether the rendition of our decision in N.L.R.B. v. Adhesive Products Corp ., 281 F.2d 89 (2 Cir. 1960) subsequent to the Board's order did not constitute an "extraordinary circumstance" within § 10(e), as we held with respect to a supervening decision of the Supreme Court in N.L.R.B. v. Lundy Manufacturing Corp ., 286 F.2d 424 (2 Cir. 1960). For the Board is precluded by its own conduct from advancing this contention on petition for rehearing. The Board's reply brief dealt on the merits with respondent's request for a condition, seeking to distinguish the Adhesive Products decision on the same grounds urged in the petition for rehearing. Having thus argued the merits, the Board may not now seek rehearing on the ground that the issue was not properly before us. W. E. Hedger Trans. Corp. v. Ira S. Bushey & Sons, Inc . 155 F.2d 321, 325 (2 Cir. 1946), cert. denied 329 U.S. 735 (1946); General Accident, Fire and Life Assurance Corp. v. Smith & Oby Co ., 274 F.2d 819 (6 Cir. 1960).
The Board again seeks to distinguish the Adhesive Products case and also N.L.R.B. v. Marcus Trucking Co ., 286 F.2d 583 (2 Cir. 1961), cited in our opinion, on the basis that in neither case had the union been certified. The distinction, verbally correct, lacks legal significance - indeed, the Marcus case could well be regarded as an a fortiori one since, on the Board's findings which we accepted, the union there, although not certified, had a collective bargaining contract. N.L.R.B. v. P. Lorillard Co ., 314 U.S. 512 (1942), now relied upon by the Board although not cited to us in its reply brief, is distinguishable as not involving the inordinate delay in the Board's disposition of the proceeding which was a principal ground for our order here.