dissenting.
I write separately to indicate my strong disagreement with the statement of the Board and the majority that Ritz’s refusal to cross the IBEW picket line was not protected activity under section 7 of the National Labor Relations Act, 29 U.S.C. § 157. Section 7 provides: “Employees shall have the right ... to engage in ... concerted activities for the purpose of ... mutual aid or protection.” Id. Section 7 has been held, by this circuit and most others, to encompass the right of an employee to refuse to cross another union’s lawful picket line. John Morrell & Co. v. Local Union 304A, 804 F.2d 457, 461 n. 5 (8th Cir.1986); Amcar Div., ACF Indus., Inc. v. NLRB, 641 F.2d 561, 566 (8th Cir.1981); see also NLRB v. Browning-Ferris Indus., Chem. Servs., Inc., 700 F.2d 385, 387 (7th Cir.1983) and cases cited therein; NLRB v. Southern California Edison Co., 646 F.2d 1352, 1362-63 (9th Cir.1981).12
Justice Hugo Black stated the basis for the right in his concurring and dissenting opinion in NLRB v. Rockaway News Supply Co., 345 U.S. 71, 73 S.Ct. 519, 97 L.Ed. 832 (1953):
Section 7 of the Taft-Hartley Act, 29 USC § 157 recognizes a right of employees to work together in “concerted activities” for their mutual aid and protection. One way some union men help others is to refrain from crossing picket lines. Habitual respect for union picket lines has long been the practice of union men. This practice has been a prized asset of the unions. The Taft-Hartley Act was designed to regulate and restrict the type of concerted activities in which employees could engage. But even that Act did not attempt to deprive unions of the advantage of a policy that required union men to respect picket lines. In § 8(b)(4)(D) of the Act, 29 USC § 158(b)(4)(D), Congress specifically declared that none of its union-restrictive provisions should be construed to make it unlawful for a man to refuse to cross a picket line thrown up to support a lawful strike. Consequently, I agree with the Labor Board that it was an unfair labor practice for this employer to discharge a *1309union employee who refused to cross a picket line.13
Id. at 81, 73 S.Ct. at 525 (Black, J., concurring in part, dissenting in part).
The right to refrain from crossing a picket line can be waived. Rockaway, 345 U.S. at 80, 73 S.Ct. at 524-25; Amcar, 641 F.2d at 566; Montana-Dakota Utilities Co. v. NLRB, 455 F.2d 1088, 1091 (8th Cir.1972). Moreover, an employee who refuses to cross a picket line can be replaced under the rules generally applicable to economic strikers. NLRB v. Browning-Ferris Indus., 700 F.2d at 388; NLRB v. Southern California Edison Co., 646 F.2d at 1368.
Here, the Board concedes that the IBEW was engaged in “Lawful primary picketing of Soper,” the electrical subcontractor. There is, moreover, no evidence in the record that the collective bargaining agreement between the Long Elevator Company and the Elevator Constructors Union waived the right of individual union members to respect the picket line of another union, so long as they do so as a matter of individual choice without any direction or coercion from the union and without the intent to coerce his employer to cease doing business with another. There is no evidence that Ritz had the latter intent.
The Board and this court reason that the rules outlined above cannot be applied in this case because the building owner had established a neutral gate, and thus, Ritz’s activity in respecting the picket line was not “primary activity.” They cite no cases directly for this unusual proposition, and I have been unable to find one. Nor can this proposition be sustained as necessary to balance the rights of employers and employees. In fact, such a rule would destroy a right considered to be of great importance to every union member — the right to respect the picket line of another union.
First, this issue has been previously addressed. The Board in Congoleum Industries, Inc., 197 NLRB No. 52, 80 LRRM 1675 (1972), held that section 8(a)(1) of the Act was violated by an employer’s discharge of four employees who refused to enter a job site through a neutral gate because of informational picketing at a reserve gate. The Board now suggests that Congoleum Industries has no precedential value because the issue of whether the employee’s refusal to enter the neutral gate might violate section 8(b)(4) of section 8(e) had not been litigated or argued. It is difficult for me to accept that reading of Congoleum Industries in light of Chairman Miller’s dissenting opinion.14
Second, the decision in Bricklayers & Stone Masons Union v. NLRB, 562 F.2d 775 (D.C.Cir.1977), upon which the Board and the majority rely, does not support their position. In Bricklayers, the Board found that the picket line clauses of the bricklayers’, laborers’, engineers’, and plumbers’ unions were in violation of sec*1310tion 8(e) of the Act because the clauses were broad enough as written or applied to sanction refusals to cross secondary picket lines, and the clauses were not saved by virtue of the construction industry proviso to section 8(e). Id. at 786-88. Bricklayers cannot be fairly cited for the proposition that the refusal of Ritz to cross the picket line was not protected by section 7.
In addition, I note that the result in Congoleum Industries does not change the balance of power between the parties; permitting an individual employee to respect a picket line under the circumstances in this case will not unduly favor employees nor prejudice employers. Each employee knows that if he respects the picket line of another union, he may be temporarily or permanently replaced as an economic striker. Thus, the union member’s action in respecting the picket line of another is not risk-free; he may lose his job. The employer, on the other hand, can replace the employee as an economic striker and continue with his work.
The only issue before this court is whether “the union, by filing a grievance on behalf of its member, who was disciplined for refusing to enter a reserve ‘neutral gate,’ is attempting to illegally enforce the ‘picketing clause’ in the collective bargaining agreement.” Decision of NLRB at 1 (emphasis added). The answer to this question turns on whether there is substantial evidence in the record as a whole to support the Board’s finding that a neutral gate had been established. I do not believe the record supports this finding for the following reasons:
1.The single building being rehabilitated had two entrances: one on the southeast corner of the building; the other on the southwest corner.
2. The east gate was marked; the west was not.
3. Two snow fences were erected on the property. The west fence was to the east of the west entrance, and the east fence was to the west of the east entrance. To put the matter simply, the fences created a closed area between the two entrances.
4. The pickets spent most of their time sitting in a parked car in front of the premises.
5. When the pickets walked, they walked from one fence to the other. Thus, they never passed in front of either entrance.
Under these circumstances, an objective observer would not have realized that a neutral gate had been established. Thus, even if one accepts the logic of the Bricklayers case with respect to the issue before us, I would deny enforcement because the Board’s finding that a neutral gate had been established is not adequately supported on the record.15
CONCLUSION
The majority, at most, holds that the Elevator Constructors Union violated the Act by filing a grievance attempting to illegally enforce the picketing clause in their collective bargaining agreement with the Long Elevator and Machine Co., Inc. Any language in the opinion that characterizes Ritz’s activities is dicta and is, moreover, inconsistent with the plain language of the National Labor Relations Act, congressional intent, and decided cases. For *1311the reasons stated above, I dissent from the result reached by the majority.
. The Board’s most recent pronouncement on the issue appears to be in Torrington Construction Co., 235 NLRB 211, 99 LRRM 1135 (1978):
The right to engage in a sympathy strike or to honor another union's picket line is a right created and protected by the Act. This right may of course be waived....
The Board in Redwing Carriers, supra, and later cases created a partial exception to the right to refrain from crossing a picket line. The exception has recognized the right of an employer to continue its business operations efficiently. To this end, the Board has recognized the right of an employer to replace an employee who engages in a partial refusal to work by refusing to cross a picket line with an employee who is willing to perform all job duties when efficient business operations so dictate. The latter right thus reflects a balancing of employee protected activity with employer operation of a business. This, of course, does not mean that the activity of the employee who honors the picket line is unprotected. While the employee may be replaced if the evidence clearly discloses that the sole purpose was the continued efficient operation of the business, such employee may not be discharged.
99 LRRM at 1136 (emphasis added) (footnotes omitted).
. In NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503 (2d Cir.1942), Judge Learned Hand stated his view of the type of activity protected by section 7.
When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a "concerted activity” for "mutual aid or protection," although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity so established is "mutual aid” in the most literal sense, as nobody doubts. So too of those engaging in a "sympathetic strike," or secondary boycott; the immediate quarrel does not itself concern them, but by extending the number of those who will make the enemy of one the enemy of all, the power of each is vastly increased. It is one thing how far a community should allow such power to grow; but, whatever may be the proper place ■ to check it, each separate extension is certainly a step in "mutual aid or protection."
Id. at 505-06 (citation omitted).
. The dissent stated:
Despite that guarantee against involvement, these employees chose not to utilize their free entryway and voluntarily abstained from the work which an employer may rightfully require his employees to perform if they expect, in turn, to be retained in his employ. We have not only affirmed the neutral employer’s right to require such work of his employees despite their concern with someone else’s labor dispute, but have even held that he may not contract away that right.
89 LRRM at 1681 (Miller, Chairman, dissenting).
. I do not reach the question of whether the union violated the Act by filing a grievance with Ritz’s employer. If the purpose of the grievance was to vindicate the right of any employee of Long to respect the picket line of another union irrespective of the circumstances that led to the picketing, then the union was probably guilty of an unfair labor practice. The majority states in its opinion that this was its purpose, and the record would seem to support the view that this was the union's purpose.
On the other hand, if the purpose of the union was simply to vindicate Ritz’s right to respect a picket line pursuant to section 7 of the National Labor Relations Act, then a different result would be required. Ritz probably would have been better served in this instance if he had been advised that the preferred remedy for him would be to file an unfair labor practice charge with the National Labor Relations Board.