The opinion
ALBERT V. BRYAN, Circuit Judge
(dissenting):
To warrant reinstatement and back-pay for the two non-bargaining employees the Board has, for me, “put too fine a point” upon the difference between discharge and replacement. The Board concedes, as it must, that no such sanction could be visited upon the employer had it immediately replaced employees Moss and Withrow when they failed to return to work, instead of discharging them. NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 379 , 88 S.Ct. 543 , 19 L.Ed.2d 614 (1967); NLRB v. Mackay Radio and Telegraph Co., 304 U.S. 333, 345-346 , 58 S.Ct. 904 , 82 L.Ed. 1381 (1938). The mystic line drawn by the Board between the two methods of disengagement is too fine to call for the penalty put upon the Company.
The result of discharge and replacement is for the employee the same. In either separation he does not receive pay subsequently. The Court in NLRB v. Rockaway News Supply Co., Inc., 345 U.S. 71, 75 , 73 S.Ct. 519 , 97 L.Ed. 832 (1953) protested it could not follow the Board’s differentiation :
“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. * * * It is not based on any difference in effect upon the employee. * * * Substantive rights and duties in the field of labor-management do not depend on verbal ritual reminiscent of medieval real property law.” (Accent added.)
Even with the distinction honored, however, the employer is not subject to a mandate of reinstatement and backpay if the refusal to restore the employee is due to “legitimate and substantial business justifications”. NLRB v. Fleetwood Trailer Co., Inc., supra, 389 U.S. 375, 379 , 88 S.Ct. 543 ; Teamsters, Chauffeurs & Helpers Local Union No. 79, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. NLRB, 117 U.S.App.D.C. 84 , *58 325 F.2d 1011, 1012 (1963), cert. denied 377 U.S. 905 , 84 S.Ct. 1165 , 12 L.Ed.2d 176 (1964). While the employer is obliged to establish the justifications, the evidence in this case renders the Board’s contrary finding without substantial support. See Universal Camera Corp. v. NLRB, 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951).
To begin with, the charging employees have not to this day — more than three years — been replaced by outsiders. This irrefutably proves their positions were eliminated or undertaken by others within the Company. Cf. NLRB v. Fleetwood Trailer Co., Inc., supra. Again, in NLRB v. Rockaway News Supply Co., Inc., supra, 345 U.S. 71, 75 , 73 S.Ct. 519, 522 , the Court observed, “[T]here is no finding that he was not replaced either by a new employee or by transfer of duties to some non-objecting employee, as would appear necessary if the respondent [employer] were to maintain the operation.” Thus the Court recognized the exception from liability if the prior position was absorbed, as here, without the importation of a new employee.
I would not enforce the order for backpay and reinstatement.
ORDER