with whom
Circuit Judge McGOWANjoins, concurring:
1 concur in the opinion for the court authored by Judge Wright, which includes what I think are the salient points of this case. My separate word is not in derogation of that opinion but is added, first, to note that the same result obtains even if there should be disagreement with some aspects of the court’s opinion, and second because I think the soundness of our result is underscored by thinking of this case in a large context of Congressional policy on upward mobility of labor.
Congress did not accept the view that supervisors, such as foremen, are necessarily and for all purposes to be identified as completely integrated in management. Foremen are officers of management, but of a special kind; like non-commissioned sergeants, they bear a special relationship to the employee troops, one that promotes two-way communication and working relationships, and is of unique value to the entire enterprise.
There would be no problem if Congress had accepted a clear-cut view of foremen, as wholly integrated with management. This they could have done, by excluding foremen from employees’ unions, or removing them from any union discipline, a course that was counseled in the name of good sense.1 But as in so many other aspects of labor-management legislation, Congress was more interested in an accommodation of tensions than the tidiness of abrupt solutions.2
*301One thing Congress did do was to give a complete option to any employer who placed paramount value on complete and unquestioned loyalty in the foreman. That employer has the absolute and unqualified right to insist that no foreman or supervisor be a member of an employee’s union. § 14(a), 29 U.S.C. § 164(a) (1970).
Such an employer attitude, however, involves costs to the employer who appreciates the benefits to the enterprise from the upward mobility of labor. Not a few enlightened managements are on the lookout for talent in the ranks, able to infuse management levels with the special awareness, aptitudes and attitudes of production experience.
Mobility of union labor is restricted if departure from the union means surrender of existing or prospective economic benefits. Such surrender requirements are not a rarity in the various benefit and insurance plans sponsored by labor unions. Congress might conceivably have required that such plans be revised so as to “vest” economic benefits on reasonable terms. But it has not yet even required vesting in the more glaring case of employer pension plans, which often remove pension rights on transfers to other employers, thus limiting mobility of labor.3
The option given by Congress is an accommodation to employers, enabling them to permit their supervisors to stay on as members of an employers’ union, without surrender of the economic benefits available to members of the union.
The foremen who are permitted by their employers to maintain membership in the ranks of both union and management will have dual ties, and there is the prospect of clash and tension. That tension may not be entirely felicitous so far as management is concerned, but when elected by the employer it reflects a trade-off, making it preferable to available alternatives.
The employer is protected by the statute against the coercion implicit in certain union exercise of control over members. The clear language of the statute protects supervisors against discipline as union members, and means the control of the union must give way, when there is a question of union control over the choice of a supervisor,4 or interference with the performance of the supervisor in “adjusting grievances.” 5
Whether or to what extent this approach may be extended to limit union control over members in other respects, it cannot be extended to the cases before us, which lie at the opposite end of the spectrum. A union member who performs rank-and-file struck work executes an act which is inherently destructive of the existence of the union. In contemplating that supervisors might continue as members of the union, Congress did not contemplate that the unions would have to surrender the elemental right of self-preservation, and to continue the good standing of agents of its own destruction.6
*302This case does not involve a management instruction to a foreman to perform managerial or supervisory work. Indeed Illinois Bell did not issue any instruction relative to the supervisors to work during the strike. If the management wishes to take the position that even rank-and-file work is the duty of a supervisor during a strike, then that is such an incursion on a union’s elemental right of self-preservation as to require management to prohibit the supervisor from remaining with the union. A management insisting on absolute loyalty, to such an extent, must bear the potential expense of the economic rights supervisors will surrender by withdrawing from the union.
I do not take Meat Cutters, supra note 1, to be in conflict with this view. That case involved the implementation by a manager of a Safeway store of a company directive to teminate the grinding and slicing of certain meats at the retail stores, and to henceforth fill market needs by ordering meat in prepared form from a warehouse. While the implementation of this management decision had the effect of eliminating some work for the Union Local 81,7 it was not inherently destructive of the Union. Without reconsidering the broad sweep of the doctrines of “indirect” interference and management loyalty voiced in Meat Cutters, they must be taken in the light of the factual problem then before the court, and cannot soundly be extended so as to prohibit union discipline of supervisors who perform rank-and-file struck work.
The limits on the protection for management loyalty are clearly posed by these cases, and reflect, I believe, an underlying congressional policy on the question of upward mobility in the labor market. Congress permits the employer to permit a rank-and-file worker to upgrade his employment situation by becoming a supervisor without surrendering certain rights as a member of an employees union. When, however, the transition is complete, and the supervisor is to side with management over the very existence of the union, the supervisor and management must make a choice and assume the consequences.
. In Carpenters’ Union v. Labor Board, 357 U.S. 93, 99-100, 78 S.Ct. 1011, 1016, 2 L.Ed.2d 1186, Mr. Justice Frankfurter described the compromises inherent in the Taft-Hartley Act, and the judicial path to observing them, as follows :
It is relevant to recall that the TaftHartley Act was, to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor in the free economic life of the Nation and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests. This is relevant in that it counsels wariness in finding by construction a broad policy against secondary boycotts as such when, from the words of the statute itself, it is clear that those interested in just such a condemnation were unable to secure its embodiment in enacted law. The problem raised by these cases affords a striking illustration of the importance of the truism that it is the business of Congress to declare policy and not this Court’s. The judicial function is confined to applying what Congress lias enacted after ascertaining what it is that Congress has enacted. But such ascertainment, that is, construing legislation, is nothing like a mechanical endeavor. It could not be accomplished by the subtlest of modern “brain” machines. Because of the infirmities of language and the limited scope of science in legislative drafting, inevitably there enters into the construction of statutes the play of judicial judgment within the limits of the relevant legislative materials.
. Roark v. Boyle, 141 U.S.App.D.C. 390, 397-398, 439 F.2d 497, 50-1-505 (1970).
. See eases cited in the majority opinion at p. 1153.
. San Francisco-Oakland Mailers’ Union No. 18, 172 NLRB No. 252 (1968).
. See Allis Chalmers, 388 U.S. 175, 181-182, 87 S.Ct. 2001, 2007, 18 L.Ed.2d 1123 (1967), where the Court observed that “ ‘[t]lie power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent. . . . ’ citing Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049 (1951). It then noted that “Provisions in union constitutions and bylaws for fines and expulsion of recalcitrants, including strikebreakers, are therefore commonplace and were commonplace at the time of the Taft-Hartley amendments.” Similarly, the 1947 Taft-Hartley Act language including the ban on secondary boycotts was not applied literally, but was held to be subject to an implied exception excluding from the ban the traditional weapon of primary picketing. NLRB v. International Rice Milling Co., 341 U.S. 665, 670-671, 71 S.Ct. 961, 95 L.Ed. 1277 (1951). This approach was confirmed in *302the 1959 amendments. Grain Elevator, Flour & Feed Mill Workers v. NLRB, 126 U.S.App.D.C. 219, 223-224, 376 F.2d 774, 778-779 (1967).
. 147 U.S.App.D.C. at 378 n. 7, 458 F.2d at 797 n. 7.