*2 TUTTLE, Before CAMERON and WISDOM, Judges. Circuit TUTTLE, Judge. Circuit companion This is to N. R. B. Op- v. Local International Union of erating Engineers, AFL-CIO, Cir., respond- F.2d 408. The Board and the litigating respect ent are here somewhat similar activities of the same job union on a different site than that in the earlier case. The statement of the case respondent, agrees candor, with commendable sub- stantially correct, follows: Briefly, found 8(b) (D) ent, (4) in violation Act, 158(b) (4) 29 U.S.C.A. encouraged employees (D), induced strike in a assign Industrial certain work force rather to members than to Industrial In this con- Board found that nection the neither a contractual claim had question, nor a Board order or granting representative certification rights work tasks in- The Board based volved. following subsidiary upon the facts. September 6, About Industrial began painting oil tanks for Cities Serv- Company. performing In ice Oil work, compres- air used four sors, except all automatic manually. (k) to “hear stopped scribed to be started dispute” determine the charge out of which start- actual did not dustrial ing any par- of a Section vio- operation employees; lation arose. whoever employee or ticular *3 performed compressor to the closest was found, The on the- the basis of work normal Industrial’s assign- function. this forth, facts set that Industrial’s union and laborers force consisted employees, ment of the work to who painters. respondent, was were not members of an cer- not contravention of order or day Serv- Cities after the work for The respond- respondent’s tification Ford, busi- and that began, Earl ice Vincent, binding ent had Industrial no contract representative, Isaac ness asked assign employ disputed mem- superintendent, to the work to its to Industrial’s operate respondent bers. Under circumstances the to these one member agreed respondent Board found that not compressor. hire was to each Vincent starting lawfully require In- entitled force or employee perform the to to one assign disputed to operations com- dustrial the work to- on all four operating its In- day, members to other pressors. an rather than next The engineer, Fleming, reported to dustrial Clifford work. this do Accordingly, re- directed day, until Fleming all that worked Regional gpondent notify the Director regular 8-hour m., end p. 4:30 wjthin days ten whether would corn- September s Industrial day, on work determination, p]y with the Board’s p. m. until 7 employees worked having comply refused to overtime, paid days, were both them, decision, with the Board’s the General off shut compressors were Board, April 27, 1956, Counsel of the on Fleming complained that to Ford After alleging complaint issued a violation getting like the oth- overtime was he of Section In- of the Act. Industrial that men, Ford demanded er in the evidence eluded at en- adduced operate the man to additional an hire suing practice hearing unfair labor were pay Industrial that comprossors and prior the official records of the In- Fleming also asked Ford overtime. (k) proceeding. pairs compressors in bank dustrial respondent for member of hire Upon adduced, the evidence thus refused Industrial pair. When each affirming concluded, Board aminer, Ex Trial September respondent, requests, on these respondent that violated Sec signs began picketing Industrial with 8(b) (4) (D) by “inducing tion couraging and en 450, Operating En- reading “Local employees gineers, Industrial Paint- engage Painters in a strike or a con days A * * * Blasters. few and Sand ers later, refusal certed ¿ceg serv his demands reiterated Ford object forcing requir witil an or for each one workman hire jng industrial Painters to ^ Fleming pay overtime. compressor and compressors work on its air to the Re spondent’s members rather than In picketing continued for about The employees dustrial Painters’ own who performed weeks, at organiza members of during that labor period. site Fauna * * ^on *(cid:127)” charges practice filed unfair The requires respond- Board’s September 1954 inducing 8(b) (4) (D), cease ent to violated ent encouraging disputes” In- “jurisdictional section statutory in a strike dustrial Pursuant statute. conduct, handling jurisdictional an indicated where ob- for the scheme require force or ject is to disputes, thereof Board in November assign particular hearing pre- held dustrial October members of the union rather text contends employees. Affirmatively, permitting than to other the Board erred in not charge dropped voluntary post ap- to be the order directs propriate notify request Industrial, charging par notices and to ty. Regional steps The General Counsel of the Board Board's Director what comply opposed have been taken to with the order. the dismissal the Trial Ex aminer, and the Board the ac Here, companion case, as in the denying tion of the Examiner in tion to dismiss. The Board said: the mo principal by respondent contention 10(k) hearing is that the Section did not private "It is well settled that a comply requirements with the *4 binding settlement is not on the statute in that the Board did not arbi Board where not consonant with dispute trate the the work public interest. Nor does it starting compres render moot. See Lo sors to either the or to In 74, Carpenters cal United Broth. of dustrial's stated in that case we hold that this ar For the reasons America, & Joiners of A. F. of L. B., 707, v. N. L. R. 966, 341 U.S. 1309; 71 S.Ct. gument is not sound. 95 L.Ed. N. L. R. B. v. Mills, Inc., Mexia Textile 339 U.S. The further contention is made 563, 567-568, 833, jurisdic~ 70 S.Ct. 94 L.Ed. here that the strike was not a Mfg. Co., tional strike at all but was a strike to N. L. R. B. v. Pool 830, protest 339 U.S. 70 S.Ct. the refusal of the Journeymen, give Fleming United Ass'n of overtime work to to enable etc., stay job 115 N.L.R.B. No. 223." him to on the two and a half longer hours to shut the motors off. We We cannot hold that the Board erred think this is a fact issue and that it has giving private in not effect to the settle- by been resolved on a full record the ment in a matter in which it was with- Board which said: province in the of the Board to find that public opposed dispute, interest was to such "The real crux of this disposition proceeding. opinion, of the our is this insistence Employer as- Finally, complains sign a member of that Union on a scope about the of the order of the Board full-time basis to a function that asserting deprives respondent that knowledge it performed by had been the Em- sufficient of the acts which ployer's own laborers on the basis prohibited. The Board made the day." of less than 30 minutes a following finding respect: in this The fact that Industrial had voluntari- "On the basis of evidence adduced ly agreed to hire one member of hearing at the in the con- perform ent's union to this brief task pursuant 10(k) ducted to Section change does not the fact that the strike 39-CD-14, of the Act in Case No. purpose coercing was for the Indus- and summarized the Trial Ex- trial to hire additional members of Local Report, aminer in the Intermediate 450 to the duties that were still appears it has being done other of In- past on several occasions in the com- language dustrial. We think the mitted violations of the Act similar case, Fourth Circuit N. L. R. B. v. Local practices to the unfair here- 9, Wood, Union No. Wire & Metal Lath- in, involving employers Union, Cir., 649, 652, ers 4 than W. J. Hedrick and H. W. Mar- apposite: schall, Jr., d/b/a Industrial Painters ap- "An effort to recast the controver- and Sandblasters. sy pears likely into a different form does not change to continue to commit such viola- its substance."

417 situations similar tions when Central State Drivers Council N. B., with- U.S.App.D.C. 338, in the instant occur R. those F.2d jurisdiction. Ac- in its territorial cordingly, certiorari denied modify rehearing the Trial we shall denied L.Ed.2d cease and Examiner’s recommended S.Ct. 366. order, which we otherwise petition enforcement enlarging entirety, by

adopt in its granted. order is scope Respond- so as to Order enforced ent the commission illegal actions not Judge CAMERON, (concur Circuit Company, ref- but also with .ring part dissenting). and in employers.” erence to * concur in the enforcement of Although the Board in its conclusion Board’s order insofar as it relates “enjoin,” used the word it effectuated its pleadings ^be issues raised conclusion in its cease desist order. before the and be" Parties course, only power Of the Court has the fore and in ma' us: °Pinion recognize injunction. to issue an to the extent í01^’ *5 excePt aP" that in the use of word Board that. finding justify- proves the the Board of sense, speaking was not in a technical ing application ^be of the de cease and enlarged respond It the order to cause employers” order to sist other with “aiW inducing ent “to cease and desist from might Respondent Specif whom deal. encouraging employees and In of findings ically, I dissent from of these any employer dustrial Painters or other by majority ^be Board now engage to in a strike or a concerted re whicb are italicized in the fol °Pinion fusal, etc.”1 This order is in all re lowing quotation: spects by similar to those made modify “Accordingly, we shall just decided, in the other Local 450 case Trial Examiner’s recommended objection as the terms of which no order, cease and desist which we by was made the Union. think the We adopt entirety, by otherwise in its finding by the Board that enlarging scope its so as to committed several similar violations and the commis likely that it was it would so in the do from illegal sion actions not fully justified future is on of the record Company, by and evidence of three viola these any but also with other dealing. which tions with we are reference here employers.” injunc think that the of terms fully light justified tion are question in of these I first of the use “enjoin” findings circumstances. See N. R. B. United word in the La- America, Mine “enjoin” Workers of Dist. and bor Board. The his- word has 4050, 4346, 1379, 2338, Locals Nos. torically a definite and well understood 8327, Cir., meaning legal and parlance.1 F.2d 389. And cf. in In former paragraph by The entire bargaining of the order com is certified the Board as the plained representative employees perform- of follows: inducing ing “1. Cease and and such work.” encouraging employees of Industrial any employer any justifica Painters or other I do in not find the record majority’s in assumption a strike or a concerted refusal in the tion for the employment course of their the Board did not use the word in a services, object Certainly nothing whore an thereof is to “technical” sense. in require history force or nowly Industrial Painters or of the actions of these any employer agencies gives its air born administrative sub compressor Respondent’s they mom- stance to the notion that are im employees any by bers rather than its own in bued sense reticence or relue assayed who are applied not members labor or- tance as have ganization, powers. unless until their The word was used in a findings spontaneous feel- The conducted. evoked a use times its arriving by quoted above in It were used ing respect, reverence. even envisage requiring its the extent difficult inducing prof- “Cease encouraging and desist from veneration dilution ligate june- ill-considered issuance place to en- recent Painters or taken has tions which ” ** * gage permit- years a strike is now to word if the way of ad- orders into the to find its ted majority opinion approves the agencies, of stat- creatures ministrative entry “Mother of this only closely possessing circum- ute upon this Court Hubbard” order which powers. scribed judgment enter whose violation will contempt majority opinion, punishable as will be The error injunctive power proceedings an im- deeper. court. The it, The I runs portant judicial proc- component in motion2 Board were set before brought ess, charges power, which under but it is a delicate one two agents sparingly signed 160(b), should exercised C.A. § attending based caution.4 limitations and Sandblasters dustrial great exercise, upon viola- Su- upon specified dated based in by Respondent preme decisions,5 tions are well ex- § Court Act. Relations Labor of the National Jurisprudence, pressed in 28 American charges consolidated were These injunctions, 300, pp. 472-473: complaint3 of a filed made the basis injunction conform to Regional “An should of the Board Director *6 equity requirements guilty of decrees alleged of was generally. The relief run practices sec- should under said unfair against only parties relationship those who are with in of the Act its tion properly and are before the court employer, This Painters. attempt per- bind complaint and should not answered upon who not or sons are named served framed the issues were thus hearing as defendants and who are not Board was before the which Commission, presumption legal v. Interstate Commerce can be document 1906, except 361, 272, indulged 200 U.S. 26 S.Ct. 50 L. Board intended 515; States, meaning Ed. & Co. v. United Swift with the which to invest 276, 1905, 375, gives 196 U.S. 25 S.Ct. 49 L. law it. 518, of Ed. and State Wisconsin v. State Illinois, 1929, 367, 278 49 Relations Board v. of U.S. S.Ct. 2. Cf. National Labor 163, 1959, 301, 307, Milling Co., 73 L.Ed. 426. 360 U.S. Fant principles applied 1179, have been L.Ed.2d 1243. in 79 3 S.Ct. arising under Act cases before us. Cheney under 29 National Labor Relations Board § As authorized U.S.C.A. 160 v. Co., 385, 1946, (b). Lumber Cal. 327 U.S. 553, 739; May 66 90 L.Ed. De- S.Ct. injunctions power partment Stores v. National Labor 4. “The to issue should Re- Board; great 1945, 376, caution and lations 326 U.S. be exercised 66 203, 145; necessity the reason and 90 L.Ed. National La- where therefor S.Ct. Express clearly established.” Relations Board v. are 43 C.J.S. bor Publish- 15, junctions p, ing Co., 1941, 426, 693, 312 U.S. 61 S.Ct. 930. National Labor Relations 85 L.Ed. Alia, City Cir., Drivers, Chase v. Dallas General 5. Inter National Bank v. 5 Norwalk, 1934, 431, 1956, 702, 291 54 Truck Drivers S.Ct. 475, 894; Donald, 1897, Helpers 78 L.Ed. Local No. v. National Scott Union 728 v. 107, 648; Cir., 1959, 262, 165 U.S. 17 S.Ct. Relations 265 L.Ed. Labor Co., 1891, 439, 444; v. Pullman Allen Palace Car and National Labor Re- F.2d 658, 139 U.S. Local International lations Wyoming Engineers, Colorado, Operating Etc., State v. State of Union Cir., 286 U.S. 52 S.Ct. 267 F.2d 418. 76 L. York, Ed. New N. &H. H. R. Co. brought jurisdic- ings, approves impact within the court’s an order whose * * * persons tion. would extend to not before places Court6 in a strait “The decree should conform jacket, greatly restricting ability to pleadings, supported and be employers deal with other times at other findings, proof, con- should places and under in other conditions par- requirements form major the indefinite future. What the go beyond case, so tieular as not to ity import here does inis effect to into requirements or such or be broader inapplicable a to which it is war- more than extensive the mechanism of con class actions—a wrongs complained rants. If the fraught high poten trivance at best against injunctive re- of and injustice tialities of unless utilized undei sought lief violations normally the limitations with which it is particulars, in statute certain fact, surrounded.7 In it is not unlike the may defend- the decree restrain the peace issuance of a bond with all the ant further like violations obligee, against litigant world as who gen- act, should engaged fights, has been in three four or act in eral terms violations any particular, be- future genius government It is the of this injunction gener- cause an of such every citizen, individual, labor union would al character corporation or shall have unlimited ac- violative^ elementary justice, principles an(j every cess to tribunal and as compel defend- that it would may thought proper often as to as- himself ant thereafter to conduct sert his contentions as to what under the jeopardy and his under business just rights; law are his and to make punishment contempt for of lating vio- every get law, effort to whether made ”* * * general injunction. by legislature courts, changed to con- upon just form As to his ideas based facts rec what is ord, goes proper. majority opinion I I portion think enforce the beyond plead of issues the order raised here discussed. *7 respects every 6. This in all is so for reason those made Respondent’s conld, day two other members cases this decided. The hearing, contempt without a facts of this case and induce the contentions proceedings begun against Respondent, my opinion, present them upon alleged quite proposition judgment violation different from the enforcing which will be entered In the order others. addition what has been said above, important that, before us. if class action tech note ñiques applicable, case, Respondent’s I do not one of members —and possible justification employed operate ap compressors proving controversy ju Board’s broad order —res centered around over- apply employ Respond- dicata would to all other time claimed in his behalf and whether, this, ers such a ent’s efforts to increase the number of work, assigned the Board’s should be in its members favor of against position Respond- union. I think Cf. Smith taken Swormstedt, portion 16 How. cut U.S. Supreme Board’s order above Tribe of discussed makes a Cauble, Ben-Hur v. different case I do not think what I seq., is in et have said above L.Ed. conflict with the 3 Moore’s Practice, pp. Federal 2d decisions in other two Ed. cases. seq. seq. and 3470 3456 et ct opinion majority 23, F.R.Civ.P., Rule calls attention Cf. U.S.C.A. the fact that order here