The opinion
ADAMS, Circuit Judge,
concurring.
I concur in the judgment of the Court because I believe there is sufficient evidence to support the conclusion of the National Labor Relations Board that the sickness and accident benefits (S&A benefits) were accrued and that Wiegand committed *475 an unfair labor practice when it terminated these benefits. Under the circumscribed scope of judicial review of Board orders, we may not substitute our judgment for that of the agency; rather, we are constrained to uphold findings supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951).
Although I agree with the reasons expressed by the majority for upholding the Board’s findings on the accrued nature of the benefits, I write separately to emphasize a finding that in my view is crucial to the resolution of several issues in this case. Significantly, the Administrative Law Judge and the Board found that the employer intentionally terminated sickness and accident benefits for the purpose of coercing and restraining the employees’ protected right to engage in concerted activity.
Substantial facts support this finding of intentionally coercive anti-union animus. As the Board recounted the chronology of events, the employer declared that it would cease paying S&A benefits in direct response to a strike call by the union. The union promptly protested this decision, and informed the employer that the disabled workers were not strike participants. Despite these protestations, Wiegand persisted in cutting off the S&A benefits. The employer acted before it could have acquired any knowledge of how effective the future strike would be or whether the sick employees would ratify the strike. Under these circumstances the ALJ and the Board could have reasonably found that the employer’s announcement amounted to a retaliatory threat to sanction certain workers if the other employees went on strike.
The import of the finding of coercive intent is that it serves to distinguish the present situation from that involved in Southwestern Electric Power Co., 216 NLRB 522 (1975), a matter in which the Board found that the employer had not committed an unfair labor practice when it ceased paying sick leave after a strike began. Notably absent from Southwestern Electric is any indication that the employer threatened to terminate benefits before the strike commenced, or that the eventual cutoff, which occurred after the strike was called, was an intentionally coercive measure. Indeed, the focus of the inquiry in Southwestern Electric was whether the employer acted reasonably in assuming that all workers, well or disabled, actually supported the strike. In concluding that the employer’s belief was reasonable, the Board found it significant that no Southwestern employee had registered a protest over the termination of sick leave payments. 216 NLRB at 522. The contrast with the events in the present case is quite significant. Not only did the Board find that Wiegand’s threat to cut off benefits was designed to dissuade the union from striking, but the company' adamantly adhered to its position despite indications that some disabled workers were not strikers. The union protested to the company that the sick individuals were not strikers, and the record also shows that at least three workers on disability actually telephoned the company to complain when their benefits stopped coming. These callers specifically told the company that they were not on strike, but their inquiries were met with the answer that the cut-off was a firm company policy. This affirmative indication in the present situation that the disabled workers were not in the same position as strikers was, as the Board remarked, absent in Southwestern Electric. Moreover, there was no finding in Southwestern, as there was here, that the sick leave payments were accrued compensation linked to services rendered in the past.
Factual differences between Wiegand’s intentionally retaliatory action and the circumstances in Southwestern Electric illustrate that, to the extent Wiegand may have based its action on the prior Board precedent, its reliance was not justified. The narrow decision in Southwestern cannot fairly be interpreted to give employers carte blanche to issue coercive pre-strike threats to terminate accrued benefits. Such a construction would appear to run afoul of the Supreme Court’s decision in NLRB v. Great Dane Trailers, Inc., 388 U.S. *476 26 , 87 S.Ct. 1792 , 18 L.Ed.2d 1027 (1967). Consequently, the Board’s determination to overrule Southwestern Electric in the present case has not visited an undue hardship on Wiegand. The employer has not been' subjected to fines or other penalties. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 295 , 94 S.Ct. 1757, 1772 , 40 L.Ed.2d 134 (1974). Rather, it merely has been ordered to pay benefits that it was always obligated to pay, because the workers had earned the right to S&A payments before a strike was imminent.
It is firmly settled by the Supreme Court that the Board may overrule its previous decisions in subsequent adjudicatory proceedings, as cumulative experience and wisdom gleaned from legal and industrial evolution warrant rethinking earlier held views. See e. g., NLRB v. Weingarten, Inc., 420 U.S. 251, 264-67 , 95 S.Ct. 959, 967-68 , 43 L.Ed.2d 171 (1975); NLRB v. Bell Aerospace Co., supra. Reliance by one party on past Board decisions does not alter the Board’s authority to set aside precedents and apply the new principle to the case at hand. Bell Aerospace, 416 U.S. at 295 , 94 S.Ct. at 1772 . Accordingly, Suipreme Court decisions compel the conclusion that, in this case, Wiegand cannot be excused from having committed an unfair labor practice on the basis of possible reliance on a previous Board ruling.
I also write separately to highlight why, in this particular proceeding, we may modify the Board’s remedial order despite the extensive deference courts normally accord to such orders.
The Supreme Court has often attested to the breadth of the Board’s discretion to devise “remedies to effectuate the policies of the Act.” NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 , 73 S.Ct. 287, 288 , 97 L.Ed. 377 (1953). As the Court explained in Fibreboard Corp. v. NLRB, 379 U.S. 203, 216 , 85 S.Ct. 398, 406 , 13 L.Ed.2d 233 (1964), “[t]he Board’s power is a broad discretionary one, subject to limited judicial review .... ‘In fashioning remedies to undo the effects of violations of the Act, the Board must draw on enlightenment gained from experience.’ Labor Board v. Seven-Up Bottling Co., 344 U.S. 344, 346 [ 73 S.Ct. 287, 288 , 97 L.Ed. 377 ], The Board’s order will not be disturbed ‘unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ Virginia Elec. & Power Co. v. Labor Board, 319 U.S. 533, 540 [ 63 S.Ct. 1214, 1218 , 87 L.Ed. 1568 ]” (some citations omitted).
This synthesis reveals that although the Board’s remedial authority is extensive, it is confined by the very policies that the Board is charged with implementing. Thus, there are two primary constraints on remedial discretion. First, the remedy selected must “undo the effects of violations of the Act,” id., rather than perpetuate the unfair labor practice. Second, the Board is not free to adopt a remedy that is at odds with the purposes of and the rights guaranteed by the national labor laws. The Board exceeded both limitations in the present case. Here, the policy that the remedy should have effectuated was the right of employees to support a strike without losing accrued benefits. Yet, the Board’s order that the employer could discontinue S&A benefits for active strike supporters in and of itself is inconsistent with the protected right of employees to engage in concerted activity in furtherance of collective bargaining efforts. 29 U.S.C. §§ 157 , 158(a)(1) (1976). Moreover, rather than redressing the violation, the Board’s remedial order permitted the employer to continue the unfair practice of withdrawing accrued benefits from strike supporters. Thus, the remedy adopted by the Board stands in irreconcilable conflict with its underlying finding that the termination of accrued benefits constituted an unfair labor practice.
Having found that S&A benefits are accrued compensation tied to past service, the Board is not free nevertheless to permit the employer to terminate such benefits for those disabled workers who show support for the strike. The right of employees to support legal strike activity without suffering retaliation or discrimination is at the *477 heart of the protection embodied in 29 U.S.C. §§ 157 and 158. See NLRB v. Erie Resistor Corp., 373 U.S. 221 , 83 S.Ct. 1139 , 10 L.Ed.2d 308 (1963). The Supreme Court has squarely held that an employer may not deny accrued benefits to workers who support a strike. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 , 87 S.Ct. 1792 , 18 L.Ed.2d 1027 (1967).
The remedial order adopted by the Board, however, leads to the precise result prohibited by the Supreme Court in Great Dane: it authorizes the withdrawal of accrued benefits to workers who indicate support for the concerted efforts of fellow employees to withhold their services. Such an action is likely to inhibit strike support, an effect which is fundamentally contradictory to rights protected by 29 U.S.C. § 157 . Because the Board’s order, patently fails to effectuate the policies of the national labor laws, it is not entitled to the respect which appellate courts usually must grant to remedial choices. The only remedial order consonant with the finding that the S&A benefits were accrued is one that directs the employer to pay these benefits for the entire time a worker remains disabled.
Although I am concerned that an employer should not be placed in the position of financing a strike, the apprehension of the Board that such an order here would be tantamount to requiring Wiegand to finance the strike is not consonant with the finding that the benefits were accrued. An employer can be deemed to be financing a strike against itself only when it must pay compensation that bears the characteristics of wages. Wages are unaccrued payments for current services rendered. Since striking employees are withholding current services, the employer need not pay them wages. In contrast, Wiegand’s duty to pay the accrued disability insurance arises in return for efforts expended by employees in the past. Inasmuch as these benefits are not given in return for current services, the employer’s continued payment of S&A benefits to disabled workers, during a strike engaged in by nondisabled workers, cannot fairly be viewed as financing the strike.
Accordingly, I agree with the majority that we should enforce the Board’s finding of an unfair labor practice because, under the substantial evidence standard of review, the Board’s determination that the S&A benefits were accrued is adequately supported in the record. Once the Board found the S&A benefits to be accrued, the unfair labor practice finding was mandated by the Supreme Court’s holding in Great Dane Trailers. Similarly, modification of the remedial order is consistent with Supreme Court precedents.