The opinion
FLETCHER, Circuit Judge,
concurring in part and dissenting in part:
I agree with the majority’s conclusion that the union’s picketing on the 46th floor is protected activity under 29 U.S.C. § 157 , and that the employer violated section 8(a)(1) of the NLRA, 29 U.S.C. § 158 (a)(1) when it threatened to arrest the pickets as trespassers.
*1278 I disagree with the decision to remand the case to the Board for a narrowing of its order. The majority would have the Board issue an order limiting the number and activity of Union pickets, despite the absence of any indication in the record that illegal picketing has occurred or is threatened. The action required of the Board is entirely outside its jurisdiction and contrary to all authority.
The courts may not enjoin picketing that is not unlawful and poses no threat to persons or property. Norris-La Guardia Act, 29 U.S.C. § 101 et seq. Similarly, the National Labor Relations Board is authorized to issue orders only against “any person named in [an unfair labor practice] complaint” to cease and desist from unlawful practices found to have been committed, and to take affirmative steps to effectuate national labor policy. 29 U.S.C. § 160 (c). The Board has no authority to restrain prospective unlawful practices unless they are related to unlawful practices that the Board has found.
[W]e can hardly suppose Congress intended that the Board should make or the court should enforce orders which could not appropriately be made in a judicial proceeding.
NLRB v. Express Publishing Co., 312 U.S. 426, 435 , 61 S.Ct. 693, 699 , 85 L.Ed. 930 (1941). See also NLRB v. Challenge-Cook Brothers of Chicago, Inc., 374 F.2d 147, 153 (6th Cir. 1964).
No showing has been made in this case that a trespass occurred or that any dangerous or otherwise inappropriate activity took place on the 46th floor. Furthermore, no unfair labor practice complaint was ever lodged against the union. Therefore, no order may be made against it, much less one such as that contemplated by the majority. 29 U.S.C. § 160 (c).
I would enforce the order of the Board.