The opinion
MacKINNON, Circuit Judge
(dissenting):
Since its amendment over twenty years ago, the decision of the National Labor Relations Board 1 (NLRB) and the federal courts 2 have assumed that the National Labor Relations Act requires both the employer and the unions charged with committing an unfair labor practice under section 8(b) (4) (D) 3 to agree to be bound by an arbitration before the NLRB may be divested by *190 section 10(k) 4 of jurisdiction to hear and decide the issue.
The majority opinion here would reverse all these administrative and court decisions and hold that the NLRB has no jurisdiction to decide such disputes where the two unions involved are members of the AFL Building and Construction Trades Department if both have agreed to be bound by the decisions of the National Joint Board for the Settlement of Jurisdictional Disputes (Joint Board) 5 established by that labor organization.
In this case the NLRB found that the Plasterers. Union committed an unfair labor practice under section 8(b) (4) (D), but the majority opinion would sustain the Plasterers’ claim that the NLRB was without jurisdiction to hear and determine the dispute because the two unions (Plasterers and Tile Setters) had agreed upon a voluntary method of adjusting' the dispute notwithstanding the fact that the employers had not agreed to be bound by such decision. The principal contention of the Plasterers, which is sustained by the majority opinion, is that the employers’ consent to be bound by such decision is not required under section 10 (k).
The NLRB contends the employers are parties to the dispute and since it is admitted they have not agreed to be bound by the Joint Board determination of the dispute between the two unions that the NLRB is empowered and directed to make a binding determination of the dispute that will be controlling upon all the parties. The majority opinion bases its decision upon (1) alleged legislative history and (2) a single sentence in a 1961 Supreme Court decision. Both of these grounds have a similar cast to them as both involve isolated comments addressed to describing the garden variety of jurisdictional disputes and neither were in any way addressed to the problem that is before the court here of the NLRB’s power and duty to adjudicate unfair labor practices caused by jurisdictional strikes in violation of section 8(b) (4) (D). See section 10(a).
In asserting reliance on the legislative history, petitioner cites the article in 52 Georgetown Law Journal 314 by counsel in this case. This article published in 1964 favored the Joint Board approach to jurisdictional disputes and it *191 has spawned several later articles that adopt the same thesis that somehow the legislative history of section 10 (k) supports the position here asserted on behalf of the Joint Board. The majority opinion adopts this argument. The feature of the “legislative history” that is relied upon to bring about this result is stated in the Georgetown Law Journal article to be:
Certainly, the literal meaning of section 10 (k) does not require the employer to be a party to a settlement of a jurisdictional dispute, 6 and the legislative history of the Act makes no mention whatsoever of employer’s participation in private settlements under section 10(h). 52 Geo.L.J. 314, 332 (1964) (emphasis added).
In support of the italicized statement the article in a footnote cites five instances when Senators and Congressmen discussed jurisdictional disputes or strikes and did not mention employers’ participation in private settlements under section 10 (k). There is nothing exceptional about this and it has absolutely no bearing on the issue here. The fact that Congress did not discuss employer participation does not in any way indicate any congressional intent on the matter. The members of Congress just did not address themselves to the point. In addition, there is a very good reason they did not address themselves to the point and that was because at the time four of the five remarks were made, section 10 (k) was not in its present form. The bill originated in the House and at that stage it merely defined jurisdictional strikes and made them unlawful. Section 10 (k) was not then in the bill. This treatment of jurisdictional strikes was supplanted in the Senate bill by a section 10(k) the principal provision of which empowered and authorized the NLRB to appoint an arbitrator to hear and determine such disputes. This provision for the NLRB appointment of an arbitrator was removed in the Conference Committee and section 10 (k) then for the first time assumed its present character. Thus, the failure of the five members of Congress to discuss 10(k) in its present form is explained by the fact that the bill did not reach its present form until after their quoted remarks. While the 10-day provision was always a part of 10 (k) from.the time it emerged in the Senate bill it attracted no notice because it was always overshadowed by the provision for the Board to appoint an arbitrator.
This explains why the members of Congress in four out of five instances cited did not even consider the issue we have here. 7
However, Senator Morse did discuss section 10(k) after it had achieved its present form and he interpreted the provision as requiring the NLRB to decide jurisdictional disputes. Speaking on the Senate floor on June 4, 1947 on *192 the bill as reported by the House and Senate Conferees, Senator Morse said:
I am especially disturbed about the amendment made in conference which requires the Board itself, rather than an arbitrator, to decide these jurisdictional disputes. I think the provision is completely unworkable. Under the provision the Board will have to hear and decide the merits of the disputes in the motion-picture industry and the controversy of over 50 years’ standing between the teamsters and brewery workers unions, to mention only a few. 8 (Emphasis added). 2 Legislative History of the Labor Management Relations Act, 1947, p. 1554.
So the “legislative history” relied upon by the petitioner is not helpful and to the extent that the remarks of Senator Morse on June 5, 1947 may be considered to be in this category, they are adverse to petitioners. The truth of the matter is that the legislative history of section 10 (k) does not afford any substantial assistance to its interpretation and the weakness of the majority opinion is demonstrated by its assertion that it does.
The Supreme Court decision is NLRB v. Radio and Television Broadcast Engineers Union [CBS], 364 U.S. 573 , 81 S.Ct. 330 , 5 L.Ed.2d 302 (1961), and the single sentence in that opinion which the majority opinion here relies upon comments upon a clause in section 10 (k), as follows:
[T]he clause “the dispute out of which such unfair labor practice shall have arisen” can have no other meaning except a jurisdictional dispute under § 8(b) (4) (D) which is a dispute between two or more groups of employees over which is entitled to do certain work for an employer. 364 U.S. at 579 , 81 S.Ct. at 334 .
Since neither the legislative history nor this sentence in the CBS decision addressed the problem here being considered, neither furnish any support for the conclusion reached by the majority opinion. The comments quoted in the legislative history and in CBS are correct as far as they go, but they do not touch the issue here. They are merely comments taken out of context and misapplied.
Another feature of the majority opinion that obscures the issue is its overemphasis on the “jurisdictional dispute” here involved and its underemphasis on the fact that the dispute had ripened into a jurisdictional strike against an employer and that based upon such conduct, unfair labor practice charges had been filed with the NLRB.
No person needs any support for the proposition that the most ordinary union jurisdictional dispute primarily involves the unions concerned but that conclusion does not support the finding that the employer is not a very vital party to a jurisdictional strike arising out of that underlying dispute and which subsequently becomes the subject of an unfair labor practice charge. The unions by their actions have made him a party to their dispute and the statute recognizes this fact. Also, the fact that the Joint Board has employer groups in its structure, indicates that employers do have a direct interest in their decisions.
The words “such dispute” in section 10(k) refer to the dispute out of which the unfair labor practice arose and the statute provides that is the jurisdictional strike in which the striking union attempts to force the employer to assign particular work to employees in its union. There is no question that the employer is a party to that dispute. In fact, an employer is a necessary party to any dispute involving an unfair labor practice under section 8(b) (4) (D) by its very definition. Clearly the unfair labor practice arises out of the strike. More remotely the jurisdictional strike in many cases arises out of the jurisdictional dispute 9 but no unfair labor practice *193 charge under section 8(b) (4) (D) ever arose solely out of a jurisdictional dispute between two unions. It requires “a strike” that involves an employer as one party.
Moreover, there are several interesting references to the interests of employers in jurisdictional disputes. The article in 52 Georgetown Law Journal 314 on Jurisdictional Disputes cited in the majority opinion recognizes at pp. 320-321 that “ * * * an employer is not necessarily a neutral party unconcerned with which group performs the work. * •* * ” Also, in Carey v. Westinghouse Corp., 375 U.S. 261 , 84 S.Ct. 401 (1964), Justice Douglas discusses jurisdictional disputes and points out several ways in which they may involve employers:
We have here a so-called “jurisdictional” dispute involving two unions and the employer. But the term “jurisdictional” is not a word of a single meaning. In the setting of the present case this “jurisdictional” dispute could be one of two different, though related, species: either — (1) a controversy as to whether certain work should be performed by workers in one bargaining unit or those in another; or (2) a controversy as to which union should represent the employees doing particular work. If this controversy is considered to be the former, the National Labor Relations Act ( 61 Stat. 136 , 73 Stat. 519 , 29 U.S.C. § 151 et seq.) does not purport to cover all phases and stages of it. While § 8(b) (4) (D) makes it an unfair labor practice for a union to strike to get an employer to assign work to a particular group of employees rather than to another, the Act does not deal with the controversy anterior to a strike nor provide any machinery for resolving such a dispute absent a strike.
* * * * # *-
The Act and its remedies for “jurisdictional” controversies of that nature come into play only by a strike or a threat of a strike. Such conduct gives the Board authority under § 10 (k) to resolve the dispute. 375 U.S. at 263-264 , 84 S.Ct. at 404 . (Emphasis added).
I find Justice Douglas’ approach to this portion of the Act to be more reasonable than the finespun theory advanced in the majority opinion. After all, we are here faced with what all admit is an unfair labor practice that has been committed in violation of section 8(b) (4) (D). In such circumstances, section 10 (k) should be read in conjunction with section 10(a) which provides:
The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise. * * (Emphasis added.) 29 U.S.C. § 160 (a).
In carrying out the various duties imposed upon it by Congress the NLRB has followed a policy for twenty years which favors and encourages the unions to settle their own differences by themselves. Even when a union starts a jurisdictional strike in violation of section 8(b) (4) (D), the NLRB will quash the proceedings under 10(k) if either union renounces any claim to the work. 10 It is only when the dispute is protracted that the NLRB carries out the regular hearing as directed by section lO(k). 11 This is a recognition of the changed status of the dispute which occurs when one or both unions enlarge the dispute between themselves to include the employer by engaging in a strike against that employer *194 in an attempt to obtain an advantage over their rival union. 12
Such procedure by the NLRB must be considered to be a sound interpretation and application of the powers conferred upon it by the Act. The sound discretion they exercise in such matters also finds support in that provision of section 10 (k) which requires the parties to
" * * * submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. * * *” (Emphasis added).
“Satisfactory evidence * * * [of] adjustment” to whom? Obviously to the NLRB. This vests the NLRB with discretion in the matter. This discretion is weighed against the overriding duty imposed on the NLRB to prevent any unfair labor practice and to exercise that power unaffected “by any other means of adjustment.” § 10(a). This places a heavy responsibility upon the NLRB in a section 8(b) (4) (D) proceeding to determine that the settlement procedure is going to be effective to adjust the unfair labor practice (not just the jurisdictional dispute) before it dismisses the charge. I thus find the majority opinion that strikes at the heart of this procedure to be an unreasonable interpretation of the Act and find much more reasonable the 20-year administrative interpretation that has been placed by the Board upon these sections of the Act.
The Board’s interpretation of its duties in these jurisdictional disputes has been regularly reported to Congress 13 and Congress has left section 10 (k) unchanged even though it has made extensive revisions of the Act since 1947. It amended both sections (j) and (J) as well as 8(b) (4) (D) in 1959. Under such circumstances Congress is deemed to have accepted the construction placed on section 10(k) by the Board 14 and under such circumstances it is well settled that the contemporaneous construction of the statute by the agency charged with its administration and enforcement should be sustained. 15 I accordingly dis *195 sent from the majority opinion that would overturn long-standing Board practices.
. United Brotherhood of Carpenters, etc., Local 581 (Ora Collard), 98 NLRB 346 , 348-349 (1952); Int’l Union of Operating Engineers (Empire State Painting Co.), 99 NLRB 1481 , 1484-1486 (1952); International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Pittsburgh Plate Glass Co.), 125 NLRB 1035 , 1038-1039 (1959); United Assn, of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, 108 NLRB 186 , 197 (1954); Millwrights Local 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (General Riggers and Erectors, Inc.), 127 NLRB 26 , 29 (1960); Newspaper and Mail Delivers’ Union (News Syndicate Co.), 141 NLRB 578 , 580 (1963); International Union of Operating Engineers, Local 66 (Frank P. Badolato & Son), 135 NLRB 1392 , 1395-1396 (1962); Local 173, Wood, Wire and Metal Lathers’ International Union, AFL-CIO (Newark and Essex Plastering Co.), 121 NLRB 1094 ,1103-1104 (1958); Bay Counties District Council of Carpenters, Inc., 115 NLRB 1757 , 1766-1767 (1956); Local 450, International Union of Operating Engineers, AFL-CIO (Sline Industrial Painters), 119 NLRB 1725 , 1731 (1958), enforced, 275 F.2d 408 (5th Cir. 1960); Local 825, Int’l Union of Operating Engineers (Nichols Electric), 137 NLRB 1425 , 1428-1429 (1962), enforced, 326 F.2d 213 (3d Cir. 1964); Local 964, United Brotherhood of Carpenters (Carleton Bros.), 141 NLRB 1138 , 1142 (1963); Local 68, Wood, Wire & Metal Lathers, etc. (Acoustics & Specialties, Inc.), 142 NLRB 1073 , 1076 (1963); Local 825, Int’l Union of Operating Engineers (Schwerman Co. of Pa., Inc.), 139 NLRB 1426 , 1429 (1962); Carpenters District Council of Denver Inc. (J. O. Veteto & Son), 146 NLRB 1242 , 1245 (1964); Electrical Workers. Local 26, etc. (McCloskey & Co.), 147 NLRB 1498 , 1501-1503 (1964); Carpenters Local Union No. 1622 (O. R. Karst), 139 NLRB 591 , 594 (1962); Operative Plasterers Local No. 65 (Twin City Tile & Marble Co.), 152 NLRB 1609 (1965); Local 300, United Assn, of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (D’Annunzio Bros., Inc.), 155 NLRB 836 (1965).
. See New Orleans Typographical Union No. 17 v. N. L. R. B., 368 F.2d 755, 763 (5th Cir. 1966); N. L. R. B. v. Local 825, International Union of Operating Engineers, AFL-CIO (Nichols Electric Co.), 326 F.2d 213, 216 (3rd Cir. 1964); Local 450, International Union of Operating Engineers, AFL-CIO (Sline Industrial Painters) v. Elliott, 256 F.2d 630, 636 (5th Cir. 1958). See also Carey v. Westinghouse Electric Corp., 375 U.S. 261, 264 , 84 S.Ct. 401 , 11 L.Ed.2d 320 (1963), citing Wood, Wire & Metal Lathers Union, 119 NLRB 1345 , 1347 (1958).
. The unfair labor practice is defined by § 8(b) (4) (D) which provides:
It shall be an unfair labor practice for a labor organization or its agents—
* * * * *
(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in *190 an industry affecting Commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work. 29 U.S.C. § 158 (b) (4) (D).
. Section 10(k) provides:
Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon comxdiance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed. 29 U.S.C. § 160 (k).
. This board was created pursuant to an agreement of October 17, 1949 by the Building and Construction Trades Department of the AFL, the Participating Specialty Contractors Employers’ Association and the Associated General Contractors of America, Inc. See 53 Geo.L.J. 130 n. 198 (1964).
. Actually, the literal meaning of § 10 (k) deals only with jurisdictional strikes against an employer and does not concern itself with jurisdictional disputes between unions. So long as jurisdictional disputes are confined to unions the NL RB has no jurisdiction under § 10 (k). It is only when an unfair labor practice involves an employer through a jurisdictional strike that the NLRB has any jurisdiction. See Justice Douglas’ opinion in Carey v. Westinghouse Elec. Corp., supra, 375 U.S. at 263-264 , 84 S.Ct. 401 . Senator Taft made this same point on June 21, 1947 in a radio address. He was addressing himself to the handling of jurisdictional disputes under § 10 (k) after that section had attained its present form. He said:
The President says the bill would force unions to strike if they wish to have a jurisdictional dispute settled by the National Labor Relations Board. This is not so. All the union has to do is to file a petition under the representation section. Sow could this provision increase strikes when it is not effective at all until there is already a jurisdictional strike or secondary boycott in effect? (Emphasis added). 2 Legislative History Labor Management Relations Act 1947, p. 1627.
. See Legislative History Labor Management Relations Act 1947, Representative Hartley 615, Senator Morse 950, Senator Taft 1012, Senator Murray 1046, Senator Smith 1157.
. He did not address himself to the problem which arises under the Joint Board here. See note 5 supra.
. This more remote dispute was what Justice Black was referring to in the CBS ease, supra 364 U.S. at 579 , 81 S.Ct. 330 .
. See Local 1905, Carpet, Linoleum & Soft Tile Layers (Southwestern Floor Co.), 143 NLRB 251 , 255-256 n. 7 (1963).
. This is the representation in the NLRB brief as to agency policy.
. In New Orleans Typographical Union No. 17 v. N.L.R.B., 368 F.2d 755, 767 (5th Cir. 1966), the court remarked:
When the Union struck to enforce the work assignment it removed the controversy from the field of private contractual rights into the higher ambit of public rights.
It also made the employer a party to the dispute.
. See, e. g., Twentieth Annual Report of the National Labor Relations Board (G.P.O., 1956), p. 118 ; Twenty-first Annual Report of the National Labor Relations Board (G.P.O., 1957), p. 119; Twenty-third Annual Report of the National Labor Relations Board (G.P.O., 1959), pp. 101-102.
. Labor Board v. Gullett Gin Co., 340 U.S. 361, 366 , 71 S.Ct. 337 , (1951). Such interpretation does not assign conclusive weight to congressional inaction. (See Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235 , 90 S.Ct. 1583 , 26 L.Ed.2d 199 (1970), cited by the majority opinion at page 185, supra. It merely points to the failure or refusal of Congress to amend this section when it was amending subsections on both sides of it as one factor in conjunction with the contemporaneous construction of the Act by the NLRB over 23 years, the provisions of the Act itself including section 10(a) and Mr. Justice Douglas’ opinion in Carey v. Westinghouse Corp., supra, wherein he points out that “there is no question that the Board is not precluded from adjudicating unfair labor practice charges even though they might have been the subject of an arbitration proceeding and award,” as pointing to a conclusion that the Act is not to be construed in the manner the majority opinion states. These are all indicia of congressional intent and that is the principle here relied upon; not stare decisis as in Boys Markets, Inc.
. Udall v. Tollman, 380 U.S. 1, 16-17 , 85 S.Ct. 792 , 13 L.Ed.2d 616 (1965) ; F.T.C. v. Mandel Bros., Inc., 359 U.S. 385, 391 , 79 S.Ct. 818 , 3 L.Ed.2d 893 (1959) ; NLRB v. Coca-Cola Bottling Co., 350 U.S. 264, 269 , 76 S.Ct. 383 , 100 L.Ed. 285 (1956) ; Commissioner of Internal Revenue v. Estate of Sternberger, 348 U.S. 187, 199 , 75 S.Ct. 229 , 99 L.Ed. 246 (1955) ; United States v. Public Utilities Commission of California, 345 U.S. 295, 314-315 , 73 S.Ct. 706 , 97 L.Ed. 1020 (1953) ; Union Mfg. Co. v. NLRB, 95 U.S.App.D.C. 252 , 221 F.2d 532, 536 , cert. denied, 349 U.S. 921 , 75 S.Ct. 660 , 99 L.Ed. 1253 (1955), and cases there cited; *195 West Texas Utilities Co. v. NLRB, 87 U.S.App.D.C. 179, 181 , 184 F.2d 233, 235 (1950), cert. denied, 341 U.S. 939 , 71 S.Ct. 999 , 95 L.Ed. 1366 (1951).