dissenting:
I must respectfully disagree with my brethren as to the proper disposition of this case.
Briefly stated, this is a case where the National Labor Relations Board ordered Plumbers and Steamfitters Local 342 (Steamfitters) to cease and desist from its attempts to obtain work that was not fairly claimable and from attempting to enforce that claim by compelling an employer not to deal with a subcontractor.
The Board’s opinion contains two themes. One is that the union had claimed not only *304the cutting and welding work which it had done in the past, but all of the work involved in fabricating the pipe, which in this particular context included the additional tasks of coating, annealing, and hydrostatic testing. The Board found this work was not fairly claimable. This conclusion was supported by substantial evidence.1 Moreover, since it is plain that whatever the relevant bargaining unit this work exceeded all historical justifications permissible under the work preservation doctrine,2 a Board injunction was fully justified. It is on this basis I would affirm.
The other theme of the Board is that even assuming that the union had claimed only cutting and welding, it still would have been in violation of the law.3 This theme would raise serious legal questions, as the majority notes.4
The Board’s mandate does not clearly state which of its alternative themes was relied on, and merely prohibits the continuance of the activity found unlawful by the Board. The Board’s appellate counsel argues, in support of the Board’s order, that it is to be construed narrowly, as prohibiting the claim for complete fabrication. Given this interpretation, the order is one that union counsel stated at oral argument would be acceptable. Obviously, if the order had been expressly limited in this manner, there would have been no appeal.
In these circumstances, it is only common sense to conclude that the narrow interpretation that is being put forward by the Board’s counsel, and defines the order in a manner acceptable to the union, should be accepted by the court if it is not unreasonable, and that the case should be affirmed on that basis without further ado.
This common-sense solution is not followed by the majority. Instead, there must be at least one more round of proceedings before this case is finally disposed of. This the majority says, is required in the name of principle, and the common-sense solution cannot be followed because it would mean that the court would be intruding into the domain of the administrative agency.
With all due respect, I submit that good sense does not necessarily mean bad law, and that the common-sense solution is not only congruent with principle, but specifically is in accordance with the approach used by the Supreme Court in J. I. Case Co. v. NLRB, 821 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944). In Case, the Court reviewed an order of the NLRB that would have been overbroad unless interpreted as suggested by appellate counsel. The Court accepted that suggested interpretation and modified the Board’s order accordingly, 321 U.S. at 341, 64 S.Ct. at 582:
We agree [with the suggested interpretation] but the literal language of the order may well be read in quite different meaning, especially when separated from findings and standing alone in the Court’s enforcement order. It then becomes the language of the Court, and the Court would not be bound to look upon the Board’s construction as its own. Questions of construction had better be ironed out before enforcement orders issue than upon contempt proceedings. A party is entitled to a definition as exact as the circumstances permit of the acts which he can perform only on pain of contempt of court. Nor should he be ordered to desist from more on the theory that he may violate the literal language and then defend by resort to the Board’s construction of it. Court’s orders are not to be trifled with, nor should they invite litigation as to their meaning. It will occur often enough when every reasonable effort is made to avoid it. Where, as here, the literal language of the order goes beyond *305what the Board admits was intended, correction should be made.
It bears repetition that the Case opinion refers to the submission by appellate counsel as “what the Board admits was intended.” 5
In the exercise of its judicial functions a court may properly accept the narrowing interpretation tendered by agency counsel. This is particularly appropriate in the NLRA enforcement scheme since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). We now know that an enforcement proceeding would never have been begun on the basis of a broader interpretation.
In Case the Supreme Court also recognized another point, that the power to enforce a NLRB order is equitable in nature; the court grants the relief sought only if consistent with the principles of equity.6 This adherence to equitable principles is premised on the recognition that an enforcement decree is akin to an injunction— it commands obedience to a specific course of conduct under penalty contempt.7 Because of the potential for the imposition of the harsh sanction of contempt, the duties prescribed by the judgment of an enforcement court must be specified clearly. Case, supra, 321 U.S. at 341, 64 S.Ct. 576. This doctrine serves to obviate unnecessary intrusion into private activity, to avoid possible deterrence or penalizing of legitimate acts and to maintain respect for judicial decrees.8
In exercising its function of determining the form of its enforcement decree, the court takes into account and gives deference to the substantive judgment of the agency. We are not “labor courts”9 and the Board’s findings of fact, if supported by substantial evidence, must be affirmed.10 Similarly, the enforcement court defers to the Board’s choice of the proper remedy,11 and will refrain from adding new elements to those ordered by the Board.12
In sum, the court’s function represents a balance between independent responsibility for the form of its enforcement decree and deference to the substantive judgment of the agency.
Contrary to the majority’s assertions, affirming the Board’s decision on the construction suggested by the Board’s counsel does not violate the doctrine of SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943). Under Chenery, an administrative order cannot be upheld “unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.”13 The narrow interpretation presented to us *306by agency counsel is a ground “upon which the agency acted.” The Board specifically found that Steamfitters attempted to claim the entire fabrication process and that such work was not fairly claimable.14 It remains a “ground upon which the agency acted,” and a valid one, even though the Board made an alternative ruling (of dubious validity) that even if the union had claimed only the limited tasks of cutting and welding the work would still not be fairly claimable.15
Accepting the interpretation advanced by the Board’s counsel would not violate the rule against post hoc rationalizations by agency counsel. That rule is merely a corollary of the Chenery doctrine; its purpose is to prevent the courts from deciding discretionary issues that have not been decided by the agency. Burlington Truck Lines v. U. S., 371 U.S. 156, 168-69, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). In the case before us, the Board exercised its discretion: it found that the entire fabrication process both had been claimed and was not fairly claimable, and these determinations are supported by substantial evidence and constitute a valid exercise of discretion.
While the NLRB order in this case is not entirely free from ambiguity, the Case ruling teaches us that our enforcement function includes the authority to tailor that order by adopting a narrow interpretation. I think it entirely reasonable to say that since the Board did not make it clear that it intended a broad injunction, the narrow interpretation tendered by NLRB counsel should be adopted as resolving any ambiguity in a reasonable, sound and proper way. The propriety of this course is underscored by the fact that it is an interpretation that avoids serious doubts as to validity, for under the narrow interpretation the order is valid notwithstanding the failure to define the bargaining unit, whereas under the broader interpretation that failure raises serious questions of validity. The union’s counsel does not protest the decree as narrowly construed and this is helpful, although not controlling. The approach advocated by the majority creates unnecessary work, and elevates abstract logic over common sense and good judgment. The court should enforce the Board’s order as construed to forbid claims by Steamfitters to the whole task of fabricating lined and coated pipe.
. 225 NLRB No. 195, at 6-7 (J.A. 412-13).
. See National Woodwork Manufacturers’ Ass’n v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).
. 225 NLRB No. 195 at 10 (J.A. 416).
.Majority opinion at n.15 and related text. If we accept the narrowing construction tendered by the Board’s counsel and affirm on that basis, there will be no need for the court to become enmeshed in the complexities of the work preservation doctrine.
. Contrary to the majority’s assertions, Case is analogous to the instant situation. In Case the Court modified the Board’s order to conform to what the Board’s counsel asserted was the intended interpretation. As the majority recognizes, this procedure was acceptable because the suggested interpretation was supported by the Board’s findings of fact. Similarly, the disposition I advocate involves adopting a suggested interpretation that is supported by the Board’s findings of fact.
. See C-B Buick, Inc. v. NLRB, 506 F.2d 1086, 1095 (3rd Cir. 1974).
. Like an injunction, an enforcement decree must satisfy the requirements of Fed.R.Civ.P. 65(d), specifying the appropriate form of an injunctive order. See, e. g., Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Internat’l Longshoremen’s Ass'n Local 1291 v. Phila. Marine Trade Ass’n, 389 U.S. 64, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967).
. See Jaffe, Judicial Enforcement of Administrative Orders, 76 Harv.L.Rev. 865 (1963).
. Internat'l Bhd. of Teamsters v. NLRB, 104 U.S.App.D.C. 359, 366, 262 F.2d 456, 463 (1958).
. 29 U.S.C. § 160(e). Universal Camera Corp. v. NLRB, 340 U.S. 474 . 71 S.Ct. 456, 95 L.Ed. 456 (1951).
. NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953).
. NLRB v. Food Store Employees Union, Local 347, 417 U.S. 1, 8, 94 S.Ct. 2074, 40 L.Ed.2d 612 (1974).
. SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943).
. 225 NLRB No. 195 at 6-7 (J.A. 412-13).
. In Judge Friendly’s words, Chenery stands for the proposition that a reviewing court cannot affirm an agency on a principle the agency might not embrace; it does not require “the tedious process of administrative adjudication and judicial review to be needlessly dragged out while court and agency engage in a nigh endless game of battledore and shuttlecock . . . ” Friendly, Chenery Revisited: Refíections on Reversal and Remand of Administrative Orders, 1969 Duke L.J. 199, 205 (1969), quoting Erie Lackawanna R. R. Co. v. U. S., 279 F.Supp. 316, 354-55 (S.D.N.Y., 3-judge court, 1967) appeal dismissed sub nom. Penn-Central Merger and N & W Inclusion Cases, 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723 (1968).