The opinion
MATHEWS, Circuit Judge
(concurring).
I agree with Judge WILBUR that the National Labor Relations Act ( 29 U.S.C.A. § 151 et seq.) is not wholly void; that so much of it as vests in the United States Circuit Courts of Appeals jurisdiction to review orders of the National Labor Relations Board is valid; and that we, therefor, have jurisdiction of this proceeding. Whether in other respects the act is valid or invalid, I think it unnecessary to decide. Assuming, without deciding, that in all other respects, the act is valid, the Board’s petition should be denied, for the following reasons:
The Board’s order is in five parts. The first [paragraph 1(a)] is that respondent shall cease and desist “from discharging or threatening to discharge any of its employees for the reason that such employees have joined or assisted the American Radio Telegraphists’ Association, San Francisco Local No. 3, or otherwise engaged in union activities.” There is neither allegation nor proof that respondent has discharged or threatened to discharge any ■ of its employees for this or any other reason. * The act does not authorize the Board to order an employer to “cease and desist” from doing that which he is not even accused of.
The second part of the order [paragraph 1 (b)] is that respondent shall cease and desist “from in any manner interfering with, restraining or coercing its employees in the exercise of their rights to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in section 7 of the National Labor Relations Act [ 29 U.S.C.A. § 157 ],
There is no evidence that respondent has interfered with, restrained, or coerced any of its employees in the exercise of any of these rights. It is accused of having interfered with, restrained, and coerced ■ A. B. Loudermilk, L. K. Bash, B. D. Phelps, L. N. Rone, and G. E. Palmer in the exercise of such rights, by refusing to re-employ them on October 8 and October 9, 1935, but these men, at that time, were not employees of respondent. They had terminated their employment on October 5, 1935. The Board argues that they should nevertheless be considered employees, in view of the following definition in section 2, subdivision (3), of the act ( 29 U.S.C.A. § 152 (3): “The term ‘employee’ shall include . . . any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment.
The trouble with this argument is that there is no allegation, no proof, and no finding that Loudermilk, Bash, Phelps, Rone, or Palmer ceased work “as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice.” There is evidence that they participated in a strike, but no evidence that the strike was called, or that they participated therein, “as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice.” The evidence shows that, at the time of, and for some months prior to, the calling of the strike, certain negotiations were pending between the American Radio Telegraphists’ Association and respondent, but it does not show that there was any “current labor dispute,” or that respondent had engaged, or was then engaging, in any “unfair labor practice.” The strike appears to have been called, not “as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice,” but because, as stated by the Board in its findings of fact, the negotiators representing the association “decided that a strike was advisable in view *632 of the unsatisfactory state of the negotiations.” Since, on the facts, Loudermilk, Bash, Phelps, Rone, and Palmer do not come within the above-quoted definition, it is unnecessary to consider respondent’s contention that section 2, subdivision (3), of the act ( 29 U.S.C.A. § 152 (3), is unconstitutional and void.
Since these men were not employees at the time they were alleged to have been interfered with, restrained, and coerced, such alleged interference, restraint, and coercion did not constitute an unfair labor practice, within the meaning of the act. Therefore, in ordering respondent to cease and desist from such alleged interference, restraint, and coercion, the Board has exceeded its authority.
The third part of the order [paragraph 2(a)] is that respondent shall offer to Loudermilk, Bash, Phelps, Rone, and Palmer “immediate and full reinstatement, respectively, to their former positions, without prejudice to any rights and privileges previously enjoyed.” The fourth part of the order [paragraph 2(b)] is that respondent shall make whole the said Louder-milk, Bash, Phelps, Rone, and Palmer “for any loss of pay they have suffered by reason of their discharge by payment, respectively, of a sum of money equal to that which each would normally have earned as wages during the period from the date of his discharge to the date of such offer of reinstatement, computed at the wage rate stated in the findings of fact as the rate each was paid at the time of his discharge, less the amount earned subsequent to discharge as shown in the findings of fact.” These parts of the order are based on the assumption that Loudermilk, Bash, Phelps, Rone, and Palmer were discharged by respondent. The assumption being false, these parts of the order are unwarranted.
The fifth part of the order [paragraph 2(c)] is that respondent shall post, and keep posted for 30 days, in conspicuous places in its various offices, notices stating “that the respondent will not discharge or in any manner discriminate against members of, or those desiring to become members of, the American Telegraphists’ Association, or persons assisting said organization or otherwise engaging in union activity.” This requires, not merely a statement that respondent will not discharge or discriminate against its employees because of their membership in the association, or because of their engaging in union activities, but a statement to the effect that it will not, for any cause whatsoever, discharge or discriminate against any member of the association, or any person desiring to become a member thereof, or any person engaging in union activity.
The act does not authorize or purport to authorize the Board to require any employer to make or post any such statement. It does provide that, where any employer is found to have engaged in an unfair labor practice, the Board may require “such affirmative action ... as will effectuate the policies of this Act [chapter] ( 29 U.S.C.A. § 160 (c),” but to require the posting of such a notice as the Board has prescribed in this case would not and could not “effectuate the policies of this Act [chapter]” or of any legislation which Congress might constitutionally enact. This part of the order is obviously unwarranted.
The petition should be denied.
The original complaint contained such an allegation. The amended complaint does not.