The opinion
HAYNSWORTH, Chief Judge
(concurring).
Hackney’s statements and speeches would abundantly justify a finding that the discharges were discriminatory were it not for the fact that by July 11, 1968, when the discharges occurred, there was no other reasonable alternative.
Most of us are optimists, and it is not surprising that, in the late spring and early summer, management clung to the hope that the volume of business would pick up in mid or late summer and that the interim could be bridged by a modest reduction in hours of work without a reduction in the work force. The reduction in the work week from fifty hours to forty-five hours and consideration of a further reduction to forty hours are consistent with that optimistic view.
By July 11, however, it was apparent, (1) that the volume of the work had been reduced by fifty per cent, and (2) there was no reasonable prospect of its increasing in the foreseeable future. The dreary prediction was confirmed as the subsequent months rolled by. In mid-July, therefore, the only possible alternative to a reduction in the number of employees was a reduction in the hours on the order of the reduction in the volume of work, that is fifty per cent.
No one contends that a reduction of the work week to twenty-five hours for an extended period of indefinite, if not permanent, duration was a reasonable alternative or that it could have been accomplished without a complete destruction of the moral and efficiency of all employees. What is suggested, if somewhat vaguely, is that the work week •might have been reduced to approximately forty hours, but there is no room for argument on this record that the volume of work on hand and in prospect could begin to support such a work week. It would have been the equivalent of the maintenance of a work force sixty per cent greater than was necessary; it could have had no other consequence than early cessation of all operations and possible bankruptcy, as my brother Bryan points out.
If there had been any other reasonable alternative open to management in mid-July, a finding of discrimination would have been abundantly supported by management’s outrageous declarations; the choice between the two could readibly be said to have been influenced by management’s purpose to defeat the Union’s organizational effort. When the low volume of work, which resulted from fortuitous circumstances beyond management’s control, left it with no alternative, however, its resort to the one step open to it to meet the radically altered business conditions cannot reasonably be said to have been influenced by a proscribed collateral purpose.
A permissible finding that an employer wished to be rid of a particular union adherent would not warrant a finding of discrimination in his termination, subject to a veteran’s statutory re-employment rights, when he was drafted into the armed forces. However reprehensible the employer’s purpose and the language that evidenced it, the termination would have been demonstrably for a nondiscriminatory reason, just as was the reduction in the work force here when the employer had no choices to exercise.
There might remain a possible question of discrimination in the selection of the forty-one employees to be released. Discrimination there would have been a violation of § 8(a) (3) of the Act entitling the discriminatees to reinstatement, though the decision to reduce the work force was beyond the statute’s reach. The Board, however, found no discrimination in the selection of the forty-one employees and the bases of their selection appear to support the conclusion that they were not discrimi *947 natory. No question on that score, therefore, is before us.
Since I find in this record no basis for any other conclusion than that the employer was compelled by economic conditions to reduce the work force, I join my brother Bryan in the conclusion that the step cannot be attributed to the employer’s anti-union purpose, and, hence, cannot be said to have been discriminatory within the meaning of § 8(a) (3).