The opinion
On Petition for Rehearing.
PER CURIAM.
A petition for rehearing complains of the action of the court with respect to that portion of the order relating to the reinstatement of Carder. It is said that, since Carder’s refusal to work was because of the existence of a strike, that refusal cannot furnish the basis of a lawful discharge, even though the company may have felt that Carder was guilty of disloyal conduct in refusing to work and may have discharged him for that reason. The petition says: “The court appears to have announced the view that, under the Act, an employer may discharge or refuse to reinstate an employee who engages in a strike or participates in other concerted activities for purposes of collective bargaining, if, in the employer’s view, the employee’s activity in this regard constitutes a breach of a duty of loyalty owing to the employer under the circumstances of his employment, and if that purpose motivates the employer’s conduct.”
It was not our intention to make such a holding. We think, however, that certain language in the last paragraph of the opinion discussing the discharge of Carder is too broad and may, on that account, be subject to misinterpretation, and that therefore the basis upon which the discharge of Carder was justified should be restated. The strike of the six operators was illegal and would have constituted sufficient justification for their discharge. National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 344 , 59 S.Ct. 508 , 83 L. Ed. 682 . Carder’s discharge was justified on this ground, for certainly if the discharge of operators who have struck illegally, is justified, the discharge of one who refuses to work because the strike is on is also justified. The operators were subsequently allowed to return to work after a conference between the company and the union officials; but there was nothing in the agreement that resulted in the reinstatement of the operators which required the reinstatement of Carder, and the company was under no obligation to reinstate him. National Labor Relations Board v. Sands Mfg. Co., supra. It is true that the company could not lawfully do anything in connection with the reinstatement of the strikers to discourage the right of collective bargaining guaranteed by the Act, National Labor Relations Board v. Mackay Radio Co., 304 U.S. 333, 346 , 58 S.Ct. 904 , 82 L.Ed. 1381 ; but in the pending case, there was clearly no unlawful discrimination after a lawful strike on account of union activity as there was in the Mackay case. In the pending case the strike was unlawful, the *119 men who were taken back were members of the union, while the employee refused reinstatement was not a union man. It cannot be that an employer is forbidden to discharge a foreman who aids an unlawful strike by refusing to obey the lawful orders of his master because the strike is in progress.
Petition for rehearing denied.