dissenting in part.
This Court agrees with the conclusion of the Labor Board that the respondent was guilty of unfair labor practices, prior to the strike, in campaigning for a company union, isolating the union president, making, through its superintendent, anti-union statements, and employing a labor spy. It also accepts the Board’s conclusion that there was further pre-strike violation by respondent of the Labor Relations Act by refusal to bargain collectively. None questions the power of the Board to reinstate striking employees as a means of redress for unfair labor practices. The issue while important *266is narrow. Can an employee, on strike or let out by an unfair labor practice, be discharged, finally, by an employer so as to be ineligible for reinstatement under the act?
The issue so stated glows feebly apart from the fire of controversy. But it may permit a more objective appraisal than to examine it when illustrated by conduct on the part of the employees, which is thought to put “a premium on resort to force” and to subvert “the principles of law and order which lie at the foundations of society.” None on either side of the disputed issue need be suspected of “countenancing lawlessness,” or of encouraging employees to resort to “violence in defiance of the law of the land.” Disapproval of a sit-down does not logically compel the acceptance of the theory that an employer has the power to bar his striking employee from the protection of the Labor Act.
The Labor Act was enacted in an effort to protect interstate commerce from the interruptions of labor disputes. This object was sought through prohibition of certain practices deemed unfair to labor, and the sanctions adopted to enforce the prohibitions included reinstatement of employees. To assure that the status of strikers was not changed from employees to individuals beyond the protection of the act, the term employee was defined to include “any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice . . .” § 2 (3), Act of July 5, 1935. Without this assurance of the continued protection of the act, the striking employee would be- quickly put beyond the pale of its protection by discharge. As now construed by the Court, the em-royer may discharge any striker, with or without cause, so long as the discharge is not used to interfere with self-organization or collective bargaining. Friction easily engenuered by labor strife may readily give rise to con*267duct, from nose-thumbing to sabotage, which will give fair occasion for discharge on grounds other than those prohibited by the Labor Act.
The Congress sought by clear language to eliminate this prolific source of ill feeling by the provision just quoted which should be interpreted in accordance with its language as continuing the eligibility of a striker for reinstatement regardless of conduct by the striker or action by the employer. The constitutional problem involved in such a conclusion is not different from the one involved in compelling an employer to reinstate an employee, discharged for union activity. There is here no protection for unlawful activity. Every punishment which compelled obedience to law still remains in the hands of the peace officers. It is only that the act of ceasing work in a current labor dispute involving unfair labor practices suspends for a period, not now necessary to determine, the right of an employer to terminate the relation. The interference with the normal exercise of the right to discharge extends only to the necessity of protecting the relationship in industrial strife.
The point is made that an employer should not be compelled to reemploy an employee guilty, perhaps, of sabotage. This depends upon circumstances. It is the function of the Board to weigh the charges and counter-charges and determine the adjustment most conducive to industrial peaee. Courts certainly should not interfere with the normal action of administrative bodies in such circumstances. ■ Here both labor and management had erred grievously in their respective conduct. It cannot be said to be unreasonable to restore both to their former status. Such restoration would apply. to the sit-down, strikers and those striking employees who aided and abetted them.
I am of the view that the provisions of the order of the Board ordering an offer of reinstatement to the em*268ployees discussed above should be sustained. As the remainder of the order is affected by the determination upon this issue but not wholly controlled by the eonclusiofas, no opinion is expressed as to the other requirements of the order.
bin. Justice Black concurs in this dissent.