The opinion
HANEY, Circuit Judge
(concurring).
I concur in the result found in the majority opinion, and in the reasoning thereof, except as follows:
First. I think the Board had jurisdiction on the ground that an unfair labor practice by respondent might lead to a strike which would have an injurious effect on interstate commerce, and therefore the Board could properly remove the cause of such “effect”. Whether respondent’s activities were in interstate commerce, or were a “flow” of such commerce, I think it unnecessary to decide. National Labor Board v. Jones & Laughlin, 301 U.S. 1, 36 , 57 S.Ct. 615 , 81 L.Ed. 893 , 108 A.L.R. 1352 .
Second. I think the question as to whether or not a refusal to reduce an agreement to writing is an unfair labor practice, is not before us, and I express no opinion in that respect. Respondent engaged in unfair labor practices and the Board so found. The Board had the power to issue an order compelling respondent “to take such affirmative action * * * as will effectuate the policies of” the act. 29 U.S.C.A. § 160 (c). In my opinion the Board could properly order respondent to embody any understandings reached in a written contract, in the exercise of such “affirmative action”.
Third. The Board found that respondent refused to bargain with the representatives of a smaller unit than the one claimed by such representatives. For the reasons expressed in my dissenting opinion in National Labor Relations Bd. v. National Motor B. Co., 9 Cir., 105 F.2d 652, 666 , I think the Board had no power to find that respondent committed an unfair labor practice by refusing to bargain with representatives of a unit of lesser number than the one claimed by the union. However, I recognize that the cited case is binding on me, and therefore concur with the holding in this case.
Fourth. Parts of the Board’s order herein require respondent to cease and desist from “in any manner” reaching a prohibited result. I think such words should be stricken from the order, for the reasons expressed in National Labor Relations Bd. v. National Motor B. Co., supra, 105 F.2d at pages 663-664. However as that case is binding on me, I concur in the enforcement of the order herein.