This рetition for review and cross-application for enforcement of an order of a divided panel of the National Labor Relations Board (the Board),
The Facts and the Proceedings before the Board
The facts, as developed at a hearing before an Administrative Law Judge (ALJ), on the General Counsel’s complaint charging a violation of § 8(a)(1) of the'National Labor Relations Act, are as follows: Petitioner, Business Services by Manpower, Inc. (Manpower), is in the business of furnishing employees to businesses requiring industrial and clerical help on a temporary basis. It does this by maintaining a pool of individuals who have notified it that they would be available to accept temporary assignments on short notice. Kathy Taylor, who was in charge of Manpower’s office in Binghamton, New York, at the time of the incidents here in question, testified:
Punctuality and dependability are an absolute must because obviously we’re supplying a service to a business, a company that needs the help. And if we can’t depend on our company, therefore, the company cannot depend on us, therefore, we lose the account.
In order that its employees should realize the importance of these considerations, Manpower distributed a two-page policy statement to its employees at the time of their enlistment. First on the list of the employee’s responsibilities was the following:
CALL IF YOU CAN’T REPORT OR IF YOU WILL BE LATE
If you can’t report for work, you MUST phone us early. This is very important!!! As your employer, it is necessary that you keep us informed.
Included at the close of the statement, under the heading “IMPORTANT,” was the following warning:
IF YOU DO NOT REPORT AS SCHEDULED AND HAVE NOT CALLED OUR MANPOWER OFFICE, YOU HAVE RESIGNED.
These policies were also stressed in the initial interviews with new employees.
The practice was for employees desiring an assignment to call Manpower’s office in Binghamton to check for job assignments and confirm their availability and for Manpower to call them during the day if an assignment developed. Between 5 P.M. and 8 A.M. communication could be had only through an answering service.
Richard Cordes had worked for Manpower in 1979 and, after a period when he was in school, had his file reactivated and began receiving assignments early in 1981. Craig Monroe started working for Manpower on April 15, 1981, and worked approximately two days a week during the five weeks of his employment until the events here in issue. The men lived in the same rooming house and, whenever possible, requested the same work assignment so that they could ride together to the customer’s premises. Neither was a union member.
One of Manpower’s largest accounts was Spaulding Bakery (Spaulding), which had a plant in Conklin, New York, near Binghamton. On May 20, 1981, Monroe received a call from Esther Nui of Manpower stating that she had a two-day assignment for him and Cordes at the Spaulding plant, starting at 9 P.M. on May 21; Monroe accepted on behalf of both.
Cordes and Monroe arrived at the plant around 8:30 P.M. on May 21. They observed five or six individuals carrying or wearing picket signs advertising a labor dispute between Spaulding and the Bakery and Confectionery Workers Union. 1 The picketers made no attempt to block cars from entering the plant, and neither the signs nor the men carrying them requested anyone to refrain from doing so. Cordes and Monroe stopped to talk with the picketers and learned that there was a labor *444 dispute at Spaulding’s plant at Hazelton, Pennsylvania, over 100 miles away, resulting in a strike, and that the picketers claimed that Spaulding had moved to Conklin some of the work previously performed at Hazelton. Although they were not asked to do so, and although Cordes “could well believe” he had been told that if he did not report as scheduled and had not called Manpower’s office, he would be considered as having resigned, Cordes and Monroe immediately made up their minds not to “cross” the picket line and to drive back to Binghamton.
The men drove into town and stopped at a grocery store, from which Cordes called Manpower’s answering service. He claimed he told the service that they had come upon the picket line, of which they had not been previously informed, and that they could not cross it in good conscience, but that they were available for future assignments that night or the next day. He further claimed that the answering service operator identified herself as such, said she couldn’t give out assignments, and agreed to pass on the message. The person who received the call did not testify, and her note of the call was not produced. However, the AU allowеd Kathy Taylor to testify that the note said merely:
5/20/81, 8:55 P.M. Rick Cordes with a phone number, available the next few days.
Taylor asserted that whatever Cordes may or may not have said to the answering service, she then knew only that Cordes and Monroe had not appeared, as she learned on the following morning on a visit to the Spaulding plant and also from the information contained in the note of the answering service.
Over the next two and a half weeks Cordes and Monroe made frequent calls to Manpower, mostly in the evening, reporting their availability but without result in the form of job assignments. They could not recall to whom they had spoken or exactly what was said, but neither made any mention of the incident involving the picket lines or otherwise informed Manpower of their attitude toward picket lines or that this was the reason for their failure to show up for work on May 21. When Monroe called on June 10, Esther Nui answered. After Monroe reported his availability, Nui replied, “Well, Craig, I have to inform you that we have you listed as having resigned.” When Monroe said he had never resigned, Nui answered, “On the last assignment that we sent you and Rick on, you didn’t report for work and you didn’t inform us.” Monroe replied, “Esther, we did inform you as soon as we got there and saw there was a picket line. We called the answering service as soon as we got there and saw there was a picket line. We called the answering service as soon as we could get to a phone.” After a pause, Nui said, “Well, Craig, I’m sure you have your principles. But I’m afraid you’re going to have to remain listed as having resigned.” 2
The next day, June 11, Cordes called Manpower and also got Esther Nui. He said, “I understand that Craig and I have been fired,” to which Nui responded, “No, we hadn’t been fired, that we had resigned.” Nui admitted that she knew of the men’s repeated phone calls seeking assignments. She said at first that Cordes and Monroe were treated as having resigned because of the picket line but, when Cordes said they had not been informed there would be a picket line, said that the dismissal didn’t have anything to do with the picket line but resulted from the men’s failure to call sufficiently in advance of the starting time for the assignment. 3
*445 Accepting as credible all the testimony except Manpower’s assertion that there was no picket line as late as 8:30 P.M. on May 21, the AU found that in refusing to cross the picket line Cordes and Monroe were exercising a right protected by § 7 and that Manpower violated § 8(a)(1) of the National Labor Relations Act 4 by dismissing them because of their exercise of their § 7 rights. He also held that the violation occurred on May 22, 1981, when Cordes and Monroe were first placed in the status of having resigned, even though there was no evidence that anyone in the company other than the answering service knew that refusal to cross a picket line had been a part of the streаm of events. Accordingly, he recommended, in standard language, that Cordes and Monroe be reinstated to their former jobs or, if these no longer existed, to substantially equivalent positions of employment, and that Manpower should make them whole for any loss of wages or other benefits as a result of their termination.
Manpower filed exceptions which were heard by a three-member panel of the Board. Members Zimmerman and Dennis joined in an opinion sustaining the AU.
Chairman Dotson delivered a strong dissent. Id. at 829-31. He agreed with the majority that the conduct was protected concerted activity within the meaning of § 7, but argued that under a balancing of the employees’ interest in engaging in the conduct at issue here and the employer’s interest in assuring the reliable performance of work assignments, the disсharges were justified. He stressed that the refusal was not to cross a picket line at the premises of the employees’ own employer but at those of a customer of the employer, and that this interest was “highly attenuated,” especially in light of the fact that the pickets were informational only and did not even seek to bar entry into the plant. In this type of case the Board
*446 must weigh the employee’s less compelling interest in expressing support for picketers at another company against the employer’s interest in the employee’s job performance.
Id. at 831. He emphasized Manpower’s particular necessities in its employees’ reliable reporting to work. Manpower, he believed,
could not risk maintaining Cordes and Monroe on its referral list because they had demonstrated that in the event of a picketing situation they could not be relied on to report to work.
Id. Concluding, he thought that, undеr the peculiar facts of this case, involving a temporary employment agency which cannot, in a literal sense, “permanently replace” individuals it refers for employment because its assignments are not permanent, Manpower’s conduct was still more nearly akin to permanent replacement, which the Board allows in the case of employees failing to report because of refusal to cross a picket line, than to discharge. Id.
DISCUSSION
The Board’s treatment of honoring “stranger” picketing, i.e., refusal of employees of one employer to cross a picket line of employees of another in the course of their employment, usually with nothing in common with the picketing employees other than a general interest in “worker solidarity,” which both parties concede this case to be, has wavered over the years. So has that of the courts; as Professor Gorman has noted, “the сases stand ... in disarray.” Gorman, Labor Law 324 (1976).
The decision usually cited as the first to address directly the question of stranger picketing was
Cyril de Cordova & Bro.,
The next case to address the question was
Rockaway News Supply Co.,
95 N.L. R.B. 336 (1951),
enf. denied,
The Supreme Court upheld the denial of enforcement but on a different ground. This was that an arbitration award in favor of the employer, based upon a no-strike clause in the collective bargaining agreement, was valid and covered the situation there involved.
Shortly after
Rockaway News,
a differently constituted Board switched positions and held that a deliveryman was properly discharged for refusing to cross a picket line at certain customers’ premises, even though he was a member of the same union as the striking employees, stating that the employee’s “conduct was a refusal to do the job for which hе had been hired and a direct disregard of his employer’s instructions,”
Auto Parts Co.,
In
Redwing Carriers,
the employer had discharged certain employees for refusing to cross a picket line at a customer’s premises in order to make deliveries, and within a day or two the employees were replaced with others who were willing to make the deliveries. After the Board had initially held the activity to be unprotected under § 7, following the rationale of
Auto Parts Co., see Redwing Carriers, Inc. (Redwing I),
where it is clear from the record that the employer acted only to preserve efficient operation of his business, and terminated the services of the employees only so it could immediately or within a short period thereafter replace them with others willing to perform the scheduled work, we can see no reason for reaching different results solely on the basis of the precise words, i.e., replacement or discharge, used by the employer, or the chronological order in which the employer terminated and replaced the employees in question.
Id.
at 1547. Thus, the Board returned to the rule of
Cyril de Cordova
that respecting stranger picket lines fell within § 7, but, by upholding its determination in
Red-wing I
that the employer had engaged in no unfair lаbor practice by discharging the employees, implied that “business justifications” would be given broad effect in this context, at least absent any evidence of anti-union animus, and appeared to heed the Supreme Court’s warning in
Rockaway News
against a formalistic application of the replacement-discharge distinction. The D.C. Circuit denied the employees’ petition to set aside the Board’s order,
The next major case was
L.G. Everist, Inc.,
Undaunted by the denial of enforcement in
L.G. Everist,
the Board, in
Ovemite Transportation Co. (Ovemite Transportation I),
The shifting nature of the Board’s approach to refusals to cross stranger picket lines is demonstrated by
Thurston Motor Lines, Inc.,
With the important exception of the
Thurston
and
Overnite Transportation II
cases, which seemed to recognize that the
*450
concept of “business justification” must be broader than the simple need to- perform the immediate task that is barred by the picket line, the Board after
Ovemite Transportation I
refused to alter its approach to recognize the apparent discomfort in the courts of appeals with its striсt approach to stranger picket line situations. The only major development since then was its decision in
Torrington Construction Co.,
At least until 1978, the courts of appeals continued to be unwilling to approve this sweeping approach. In
NLRB v. William S. Carroll, Inc.,
Even where the courts upheld the Board prior to 1978, they were cautious. In
Swain and Morris Construction Co.,
There was no evidence that the two men were eventually replaced by an employee willing to cross the picket line. Nor was the pickup or delivery to this particular site within a permanent route or special skill of either [of the two employees] such that no one would have been capable of replacing them____ It was a routine pickup which ... could have been performed by any of [the employer’s] other employees____
Id. at 1036.
Common to all of the decisions in the courts of appeals until this point, and even to the Board’s approach prior to
Torrington Construction,
was a recognition that the remedy of discharging an employee who had refused to cross a stranger picket line might be justified where strong, legitimate business interests were present, where the employee’s § 7 interest in not crossing the picket line could not be accommodated without impairing those employer interests, and where it was clear that the decision was not motivated by anti-union animus. In nearly every case in which a § 8(a)(1) violation was found on the basis of such a discharge, the Board or the court of appeals emphasized that the refusal to cross the picket line did not risk injury to the employer’s business because it was possible, for example, to have a temрorary substitute perform the task without unacceptable delay,
see, e.g., Overnite Transportation I, supra; Swain and Morris Construction Co., supra. On
the other hand, no § 8(a)(1) violation would be found where it was shown that the employee’s refusal to cross, without adequate advance warning to the employer, risked injury to the employer’s business or reputation,
see, e.g., William S. Carroll, Inc., supra; Red-wing Carriers, Inc., supra.
As this court emphasized in
Rockaway News,
the determination of a violation of § 8(a)(1) depends on a balancing of the employer’s interests against those of the employee, a balancing that must be performed on a case-by-case basis,
see William S. Carroll, Inc., supra,
In justifying this substantial departure from prior law, the Board lays great — in our view, undue — stress on the Supreme Court’s decision in 1978 in
Eastex, Inc. v. NLRB,
The Board reads into the footnote more than it will bear. Insofar as Redwing II and Alamo Express held that respecting stranger picketing was an activity protected by § 7, we are in agreement with them. In fact, the statement in Alamo Express that such conduct was protected activity within the meaning of § 7 was followed by a single citation to our own opinion in Rockaway News. The issue here, however, concerns the balance between this § 7 right and the employer’s right to operate its business efficiently — an issue not present in Eastex. The footnote cited Redwing II and Alamo Express for the former proposition only. Significantly, it concluded by stating:
We express no opinion, however, as to the correctness of the particular balance struck between employees’ exercise of § 7 rights and employers’ legitimate interests in any of the above-cited cases.
Moreover, in Redwing II, the Board refused to find an unfair labor practice because the employees were discharged not out of anti-union animus or in reprisal but because the employer wanted to continue doing business with the stranger who had been struck.
We likewise do not find that decisions of the courts of appeals subsequent to Eastex with respect to the honoring of stranger picket lines constitute any significant departure from the earlier ones we have reviewed.
In
NLRB v. Southern California Edison Co.,
This case presents a particularly extreme combination of “attenuation” of the protected right, of lack of causal relationship between the exercise of the right and the employer’s disciplinary measures, and of need by the employer to enforce a neutral rule requiring advance reporting of inability or unwillingness to fulfill an agreed assignment.
The employees’ § 7 interest in refusing to cross the picket line at the Spaulding plant was particularly weak. In the ordinary situation involving a stranger picket line, where the refusing employee shares neither the union affiliation nor the employer of the picketing employees, the employee’s conduct is still considered to come squarely within the scope of the “mutual aid or protection” clause of § 7 on the theory that honoring the picket lines of other employees generally promotes worker solidarity and increases the possibility that the refusing employee will receive the benefit of similar support in the future.
See NLRB v. Peter Cailler Kohler Swiss Chocolates Co.,
On the opposite side of the balance is Manpower’s compelling interest in the performance of work assignments, or in sufficient advance notice to permit timely replacement, and the complete lack of anti-union animus underlying the discharges that served to safeguard that interest. Manpower’s business was the furnishing of temporary help, and Manpower had made abundantly clear to Cordes and Monroe their overriding responsibility to phone early if they could not report for work — for whatever reason — and the consequences that would ensue if they did not. Cordes and Monroe were terminated for fаiling to make a timely report of their unavailability for work, not for having honored a stranger picket line — something of which, as the ALJ determined in a finding not disturbed by the Board, the employees of Manpower responsible for their termination did not even know until three weeks later. The ALJ properly regarded the General Counsel’s attempt to show a discriminatory application of the resignation rule as not even worthy of discussion. 8 The refusal to cross the picket line thus was simply a but-for cause of the termination, not a motivating one. The uncontradicted testimony of Kathy Taylor, whom the AU found to be a credible witness, was that another employee who did give advance notice of objection to working at the Spaulding plant because of the picketing was offered and accepted other assignments. Cordes and Monroe refused to pass pickets who were simply giving information about a strike at a different plant аnd had not even asked them to do this, without any regard for the interests of their employer and without notice *454 sufficient to permit their replacement. As a result of this refusal Manpower lost the profits it would have earned on their services' and, more important, risked impairment of its reputation for reliability with one of its most important customers. Unlike the many cases discussed above in which replacement of the refusing employee could be achieved with little or no disruption in the employer’s operations, or with only a harmless delay, such replacement was simply impossible here — the failure of Cordes and Monroe to show up on the night of May 21 meant that that business was lost forever. If under this combination of circumstances the position of the Board majority is not making the protected conduct “sacrosanct,” to use Judge Posner’s phrase, we do not know what would be.
The Board majority does not and could not well disputе that Manpower would have been entitled to fill the jobs that Cordes and Monroe left empty if it had been given an opportunity to do so. It says that Manpower could “permanently replace” Cordes and Monroe but not discharge them. In most cases, there is a distinction between the practical effect of these concepts, as Judge Posner elaborated in
Browning-Ferris, supra,
The Board,
The petition for review is granted; the cross-application for enforcement is denied.
Notes
. At the hearing before the ALJ, Manpower disputed that picketing was still going on at 8:30 P.M. and claimed that Cordes’ and Monroe’s story was fabricated. No claim is made before this court that the contrary determination of the ALJ was not supported by substantial evidence.
. This is Monroe’s version. Nui did not contradict it but emphasized that this was the first occasion on which she knew about the role of the picket line.
. This is Cordes’ version. Nui’s is not essentially different, although she summarized the conversation as follows:
Well, you have your principles. Well, you didn’t want to cross the picket line. But you are not being rehired by Manpower because of that reason. You are not being rehired by Manpower because you had failed to follow our procedure.
. These provide:
§ [7]. Right of employees as to organization, collective bargaining, etc.
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in [§ 8(a)(3).]
29 U.S.C. § 157.
§ [8]. Unfair labor practices (a) Unfair labor practices by employer It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [§ 7.]
29 U.S.C. § 158(a)(1).
. This court's limitation of the right to honor stranger picket lines to nonworking hours seems never to have been followed. We regard it as having died from desuetude, although it has never been expressly overruled.
. The Court of Appeals said, “We cannot follow
the Board’s reasoning." Nor can we. The distinction between discharge and replacement in this context seems to us as unrealistic and unfounded in law as the Court of Appeals found it. This application of the distinction is not sanctioned by Labor Board v. Mackay Co.,304 U.S. 333 , 347,58 S.Ct. 904 , 911,82 L.Ed. 1381 . It is not based on any difference in effect upon the employee. And there is no finding that he was not replaced either by a new employee or by transfer of duties to some nonоbjecting employee, as would appear necessary if the respondent were to maintain the operation. Substantive rights and duties in the field of labor-management do not depend on verbal ritual reminiscent of medieval real property law.
. In Mackay Radio, the Court had held that striking employees remained statutory “employees” under § 2(3) of the Act, and that an employer was free to replace striking employees and assure their replacements of continued employment, although it could not discriminate among employees on the basis of union activity in reinstating them after the strike.
. This consisted of testimony by Cordes and Monroe that no adverse consequences had been suffered on one occasion when Cordes arrived late after his car had broken down and on another in which Monroe did not arrive at all due to car trouble. However, on both occasions the men had given reasonable advance notice to Manpower. Both Taylor and Nui gave uncontradicted testimony to the strict and neutral application of the rule.