(dissenting).
While the Taft-Hartley Act reversed the trend toward unionism fostered by the Wagner Act, it did so by bringing the employer also within the aegis of administrative agency protection, and not by reversion to laissez faire. So Congress expressly preserved much of the former statutory protections of the unions, such as the right to strike, § 7, 29 U.S.C.A. § 157. And when it limited the weapon of the boycott it took pains to except from the newly defined unfair labor practices of a union or its agents the crossing of a picket line. Sec. 8(b) (4), 29 U.S.C.A. § 158(b)(4), final sentence, as quoted in note 6 of the opinion. The adoption of this Act was bitterly contested, as is well known; its provisions therefore should be taken as representing the utmost position for which either side could muster sufficient support to obtain the final legislative endorsement. There is thus less reason than *116usual to extend the prohibitions of the Act by implication. Rabouin v. N.L.R.B., 2 Cir., 195 F.2d 906.
When, therefore, the Board acts in what seems to me the intended spirit of this specific § 8(b)(4) exception to hold that a union member does not lose the statutory protection by refusing to cross a picket line, I do not see how we can rule that action erroneous as a matter of law. Note that here we are not faced with the question whether or not the Board could have found some violation in all the circumstances; on the contrary we are holding it under legal compulsion so to find. The extent of the step we are taking in thus promulgating a rigid rule of law is highlighted by the authorities relied on. An abstract statement of rights as offset by duties, made by the Supreme Court in 1945, Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 798, 65 S.Ct. 982, 89 L.Ed. 1372, 157 A.L.R. 1081, and a tentative — but not enforced — suggestion of the Board in 1943 that an employer might make and enforce “a rule prohibiting union solicitation during working hours,” Peyton Packing Co., Inc., 49 N.L.R.B. 828, 843, are employed to restrict this explicit and unlimited exception of the 1947 Act to only non-working hows. To say that a workman is protected from discharge for refusing to cross a picket line only when his refusal is outside of his working hours — here from 9:45 a. m. to 6:30 p. m. — seems to me a practical nullification of the statutory provision. That, by the way, was not discussed in N.L.R.B. v. Illinois Bell Tel. Co., 7 Cir., 189 F.2d 124, supra, because the situation there arose before the enactment of the Taft-Hartley Act.
The opinion does not rely at all on any suggestion that Waugh was ■ violating a service contract; that issue, I believe, has thus been properly removed from the case.1 But with that eliminated, all that is left to support the conclusion negating the statutory exception is, it seems to me, an argument that any prohibition against discharge is unreal in. view of the settled right in the employer in an “economic” or competitively justified strike to keep his business going by replacing the strikers. If unreal in this case, it must be considered equally so in all cases of economic strikes. But for good or ill, the distinction is quite settled, not newly developed here, and, following its history beginning with N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346, 58 S.Ct. 904, 82 L.Ed. 1381, seems quite natu.ral. It was applied by us in N.L.R.B. v. Remington Rand, Inc., 2 Cir., 130 F.2d 919, 928, and is explained succinctly and clearly in N.L.R.B. v. Globe Wireless, Ltd., 9 Cir., 193 F.2d 748, 750.
Accordingly I can see no legal basis for refusing enforcement of this Board order.
. Although, the employer here strongly-contended that a collective bargaining contract with the union so required, the Board had ruled the entire contract void because of an illegal union-security clause and, apparently, other defects. A test case on this issue is said to be pending on our calendar; but see Red Star Express Lines of Auburn, Inc. v. N. L. R. B., 2 Cir., 196 F.2d 78, where the Board was sustained in such a view of a union-security .contract.