The opinion
ALBERT V. BRYAN, Circuit Judge
(dissenting):
The majority now completely repudiates our decision in NLRB v. Union Carbide Corporation, 440 F.2d 54 (4 Cir. 1971) by affording Tallent and Loughhead § 7 protection. 29 U.S.C. § 157 . There we said:
“One who is afraid to cross a picket line by reason of physical fear makes no common cause, contributes nothing to the mutual aid or protection and does not act on principle. Mullins’ [the non-striking-union employee] refusal to cross the picket line was not protected activity under Section 7, and enforcement of the Board’s order [of reinstatement] as to him will be denied”.
This proposition is the determinant of the controversy here. When they refused to perform their jobs, Tallent and Loughhead unequivocally and repeatedly told the company that fear of hurt or harm actuated them. That this was no mere pretense and there was imminent justification for it, witness:
Non-striking Virginia drivers such as Loughhead and Tallent were threatened by Safeway strikers with damage to their personal safety; ears were destroyed; drivers’ wives were harassed by threatening telephone calls; when arriving at the terminal to take a New York charter bus usually run by the striking union, four or five pickets “backed me [Tallent] up against the bus and told me not to go” and if he did, they would “personally tear [his] car up”, which was then at the terminal garage, and that they would call New York and “make sure [he], would not return”.
Yet these are the persons with whom the Board finds Loughhead and Tallent “plighted their troth, joined in their common cause” and thus became strikers themselves. I cannot imagine substantial evidence casting these two in this character. For me it is utterly unbelievable that they were in truth loyal and devoted confederates, sympathizing with those who were threatening their lives. Nevertheless, it is on this remarkable finding that the Board and the Court give Tallent and Loughhead § 7 protection.
Motivation of the refusals to work must be appraised as of the time they occurred, not in the later cooling days, weeks or months. When it happened Tallent and Loughhead pleaded fear and they ought to know. Their refusals were not hasty determinations. They had studiedly resisted the company’s attempts to persuade them to remain as employees. Surely the employer is not to be found in fault because it accepted the persistent word of the dischargees. The endeavor now to avoid Union Carbide by playing down the positiveness of their declaration by calling it an “excuse” or no more than momentary timidity, just will not pass muster under the substantial evidence analysis. The recited facts wholly douse it.
Since Loughhead and Tallent were discharged for cause, thereafter they had no mandatory claim on the company for restoration. See Union Carbide, supra. Hence, the Board’s reinstatement order wilts on analysis.
I would reject the order.