In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 01-3606 & 01- 3987

TROMPLER, INC.,

Petitioner, Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent, Cross-Petitioner.

____________

Petition for Review and Cross-Application for Enforcement

of an Order of the National Labor Relations Board.

____________

ARGUED APRIL 4, 2003—DECIDED AUGUST 1, 2003

____________

 Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. Trompler is a nonunion machine

shop that employs 30 workers in three shifts. The second

shift runs from 2 to 10 p.m. and is staffed by eight workers,

including a supervisor (“leadman”). One day, six of the

eight walked off the job shortly after their shift began,

without telling the employer in advance, and as a result

production ceased until the workers who work the third

shift arrived at 10. The president of the company met with

the six workers the next day. There is disagreement over

what they told her, but the Board found, not clearly erroneously, that it was that they had three complaints about

the second-shift supervisor: that he had failed to prevent

sexual harassment of one of the six workers by another (the

one who, along with the supervisor himself, did not join
2 Nos. 01-3606 & 01- 3987

the walkout); that he had failed to deal competently with

a worker’s drug problem; and that he didn’t know how

to operate the machines used by the workers and so

when problems with the operation of the machines arose

they had to interrupt their own work to help each other

solve them with no help from him and as a result they fell

behind in their work. At the end of the meeting the president fired the six employees, precipitating a complaint

that resulted in a determination by the Labor Board that the

employer had committed an unfair labor practice and an

order requiring reinstatement of the six fired employees with backpay.

Section 7 of the National Labor Relations Act, 29 U.S.C.

§ 157, entitles workers to engage in “concerted activities”

for the purpose of improving the terms and conditions of

their employment. The term “concerted activities” is not

defined, and obviously cannot be read literally, as that

would have entitled the six dissatisfied workers in our case

to have beaten up the supervisor or burned down the

shop—more arresting methods of protest than their

walkout. The Supreme Court has said, however, that the

only unprotected concerted activities (provided they relate

to the terms and conditions of employment, rather than to

matters which are not the legitimate concern of employees—an essential qualification to which we’ll return) are

those that are unlawful, violent, in breach of contract, or

otherwise “indefensible” but that the mere fact that they are

not “reasonable” does not forfeit the protection of the

Act. NLRB v. Washington Aluminum Co., 370 U.S. 9, 16-17

(1962); see also NLRB v. Jasper Seating Co., 857 F.2d 419, 421

(7th Cir. 1988); Compuware Corp. v. NLRB, 134 F.3d 1285,

1290 (6th Cir. 1998).

What then to make of our holding in Bob Evans Farms,

Inc. v. NLRB, 163 F.3d 1012, 1021-22 (7th Cir. 1998), that a

walkout to protest the firing of a supervisor was “unrea-
Nos. 01-3606 & 01- 3987 3

sonable” and therefore unprotected? In that case, 15 employees of a restaurant walked off the job late Friday

afternoon. “That the walkout had a far-reaching effect on

the operation of the restaurant is undisputed. Without

notice, the restaurant was left virtually unattended at the

start of what was characteristically one of its busiest shifts.

Some day-shift employees were persuaded to stay on that

evening and [the manager] managed to call in extra help

from other restaurants. But the die had been cast and the

best that Bob Evans could hope for was to limit the damage: service was poor, customers got angry, bills were not

paid and business was lost. Repercussions were felt over the

next few days with continued customer service problems and further walkouts—this time by two employees

fed up with the onerous working conditions imposed in the

wake of the initial walkout.” 163 F.3d at 1016. The workers’

conduct was unreasonable, but was it indefensible? And if

not, does this mean that we were defying the Supreme

Court? And not only we (and not only in Bob Evans Farms,

but also in Henning & Cheadle, Inc. v. NLRB, 522 F.2d 1050,

1054 (7th Cir. 1975) (per curiam), and see also NLRB v.

Phoenix Mutual Life Ins. Co., 167 F.2d 983, 988 (7th Cir.

1948)), but the First and Fifth Circuits as well? See Yesterday’s Children, Inc. v. NLRB, 115 F.3d 36, 45 (1st Cir. 1997);

Puerto Rico Food Products Corp. v. NLRB, 619 F.2d 153, 155-

56 (1st Cir. 1980); Abilities & Goodwill Inc. v. NLRB, 612 F.2d

6, 8-10 (1st Cir. 1979); NLRB v. Dobbs Houses, 325 F.2d 531,

538-39 (5th Cir. 1963).

The answer may lie in the fact that in all these cases the

complaint that gave rise to the protest concerned a supervisor. The choice of supervisors is a management prerogative,

Bob Evans Farms, Inc. v. NLRB, supra, 163 F.3d at 1021;

Yesterday’s Children, Inc. v. NLRB, supra, 115 F.3d at 45,

which is to say a matter that employees do not have a
4 Nos. 01-3606 & 01- 3987

statutory right to bargain over. See Pittsburgh & Lake Erie

R.R. v. Railway Labor Executives’ Ass’n, 491 U.S. 490, 507-08

(1989); Textile Workers Union of America v. Darlington Mfg.

Co., 380 U.S. 263, 269 (1965); University of Chicago v. NLRB,

514 F.2d 942, 949 n. 4 (7th Cir. 1975). If unions had a general right to veto the decisions of employers with regard to

the hiring and firing, the discipline and direction, of supervisors, the line between managers and workers would

erode, inconsistently with the rule that denies supervisors

the protection of labor law. 29 U.S.C. § 152(3); NLRB v.

Health Care & Retirement Corp. of America, 511 U.S. 571, 573

(1994); Empress Casino Joliet Corp. v. NLRB, 204 F.3d 719, 722

(7th Cir. 2000). A complaint that a supervisor’s conduct is

impairing the terms or conditions of the employment of

the workers whom he supervises is, however, a legitimate

subject for concerted activity, as the Bob Evans Farms line of

cases in this and the other circuits acknowledges. See, e.g.,

163 F.2d at 1021. But without a limitation to reasonable

concerted activity in protest against supervisors’ misconduct, the employer’s prerogative would be undermined. Cf.

Cleaver-Brooks Mfg. Corp. v. NLRB, 264 F.2d 637, 640-41 (7th

Cir. 1959).

So, given employer prerogative, worker protests precipitated by employer action (or inaction) concerning

supervisory personnel that are unrelated to the terms and

conditions of employment are unprotected regardless of the

reasonableness of the means of protest chosen—specifically, whether the means disrupt the employer’s business

disproportionately to the workers’ grievance. But even if the

protest, though concerned with employer decisions regarding supervisors, does involve the terms and conditions

of employment, as in this case and Bob Evans Farms

(where we held that the Board had reasonably found that

the workers believed that the dismissal of the supervisor
Nos. 01-3606 & 01- 3987 5

in question—the employer’s action that precipitated the

walkout—would adversely affect their employment conditions), nevertheless, according to Bob Evans Farms, the

protest is unprotected if the means used are unreasonable.

We understand the Board’s concern with imposing a

general duty of “reasonableness” on workers’ choices regarding the timing and nature of concerted activities. The

National Labor Relations Act models labor relations as

tests of strength between workers and management. Workers withhold or threaten to withhold their labor in order to

impose costs on management that will induce management

to improve the workers’ terms or conditions of employment, and employers if they don’t want to knuckle under

to the workers’ demands can try to impose costs on the

workers by locking them out, laying them off, and hiring

permanent replacements. See, e.g., American Ship Bldg. Co.

v. NLRB, 380 U.S. 300, 308, 310-16 (1965). This “combat”

model of labor relations does not sort well with a requirement that the combatants act reasonably. Such a requirement would turn war into a war game constrained by rules

that would often baffle the combatants, since the rules

would merely be applications of a vague standard of

reasonableness to the particular circumstances of particular

cases, rules moreover that would be articulated and applied after the game had been played.

The Board reminds us, moreover, that its decision to

reject the application of the standard of reasonableness to

concerted activities concerning the hiring or firing of supervisors is entitled to deference under the Chevron doctrine.

Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359,

364-65 (1998); Holly Farms Corp. v. NLRB, 517 U.S. 392

(1996); International Ass’n of Machinists & Aerospace Workers

v. NLRB, 133 F.3d 1012, 1015 (7th Cir. 1998). Congress has
6 Nos. 01-3606 & 01- 3987

delegated to the Board the authority to make rules filling

gaps in the statutes that it administers, e.g., Auciello Iron

Works, Inc. v. NLRB, 517 U.S. 781, 787-88 (1996), and the

authority can be exercised either in formal rulemaking proceedings or, as the Board prefers, see Allentown Mack Sales

& Service, Inc. v. NLRB, supra, 522 U.S. at 374, 398-99, 409, by

the common law method of rulemaking through adjudication. United States v. Mead Corp., 533 U.S. 218, 226-27

(2001); American Federation of Government Employees v.

Rumsfeld, 262 F.3d 649, 656 (7th Cir. 2001); Massachusetts v.

FDIC, 102 F.3d 615, 621 (1st Cir. 1996). The lack of definition of protected concerted activities is such a gap, and the

Board has filled it. We rejected this argument in the Bob

Evans case, however, on the ground that the Board’s “rule”

wasn’t a rule at all, but merely an arbitrary failure to consider one factor, “the means of protest” chosen by the

workers. 163 F.3d at 1020. We said that the disregard of this

factor had deprived the Board’s decision as to whether

concerted activity was protected of support by substantial

evidence. Id. at 1020. The Board challenges this analysis

and asks us to overrule Bob Evans.

This is not the case in which to attempt to resolve the

Board’s challenge to our decision. There is less of a difference than meets the eye between the Board’s approach and

ours, and indeed it is too small a difference (as the Board

argues in the alternative) to affect the outcome of this case.

If the Board thought that only personal violence or property damage could strip concerted activity of protection, or

if, as the Board’s lawyer unguardedly suggested in the oral

argument, a nonunion employer should not be permitted

to complain about any tactic used by employees because

he can always buy them off by negotiating a collective

bargaining agreement with them that contains a no-strike

clause, as most such agreements do, Roger I. Abrams,
Nos. 01-3606 & 01- 3987 7

Frances E. Abrams & Dennis R. Nolan, “Arbitral Therapy,”

46 Rutgers L. Rev. 1751, 1758 n. 35 (1994); George Feldman,

“Unions, Solidarity, and Class: The Limits of Liberal Labor

Law,” 15 Berkeley J. Emp. & Lab. L. 187, 228 n. 169 (1994)— an

argument that disregards the right of a majority of an

employer’s employees not to be represented by a union, 29

U.S.C. § 157; NLRB v. Local 73, Sheet Metal Workers’ Int’l

Ass’n, 840 F.2d 501, 506 (7th Cir. 1988)—then there would

be an unbridgeable gap between the Board’s approach and

that of the Bob Evans Farms line of cases. But remember that

what the Board wants to do is merely to apply the standard

set forth in the Supreme Court’s Washington Aluminum case

to concerted activity over supervisor selection (as in this

case, where the nub of the strikers’ grievance is the competence of a supervisor and the removal of the supervisor

would have cured the grievance), and that standard excludes nonviolent as well as violent unlawful activity,

including breaches of contract, plus activity that while not

unlawful is “indefensible.” If indefensible were a synonym

for unlawful, there would be no need to include both

words as criteria of unprotected conduct. Indefensibility

must go beyond unlawfulness, and the question is how far.

The difference between “indefensible” and “unreasonable”

may be largely semantic.

Consider the famous pre-NLRA case of Alaska Packers’

Ass’n v. Domenico, 117 Fed. 99 (9th Cir. 1902). Seamen on

board a ship that was fishing for salmon in Alaskan waters

during the short fishing season struck for higher wages.

The captain agreed to modify the workers’ employment

contract to pay them the higher wages that they were demanding. But when the ship returned to port, the employers refused to honor the modification and the court refused

to enforce it. The captain had acted under duress in

agreeing to the modification because, had he not done so,
8 Nos. 01-3606 & 01- 3987

the fishing season would have been ruined, since the

strikers had an effective albeit temporary monopoly of the

labor supply necessary to continue with the fishing; and it

would not have been feasible to sue them as a means of

recouping the loss. This was a classic case of duress, see

Contempo Design, Inc. v. Chicago & Northeast Illinois District

Council of Carpenters, 226 F.3d 535, 549-51 and n. 9 (7th Cir.

2000) (en banc); Professional Service Network, Inc. v. American

Alliance Holding Co., 238 F.3d 897, 900-01 (7th Cir. 2001),

and the analogy to the facts of the Bob Evans Farms case is

close, though a difference is that the seamen were violating

their contract with the employer. Duress, even when not a

breach of contract, is tortious, hence unlawful, hence

indefensible.

Of course if “duress” is defined broadly enough, no

strike would be protected activity, since the entire purpose

of a strike is to exert economic pressure on the employer by

withholding labor services that he needs. The seamen in

the Alaska Packers’ case had in effect a monopoly of the

employer’s labor supply at a critical period, and the exploitation of temporary monopolies is, as explained in the

Professional Service Network case, supra, 238 F.3d at 900-01,

the functional meaning of the legal concept of duress. But

remember our earlier point about the employer’s right, in

the case of a merely economic strike (for we are not concerned in this case with strikes protesting an employer’s

unfair labor practices), to hire permanent replacements.

This right mitigates the workers’ monopoly of his labor

supply. But it was unavailable as a practical matter in

Alaska Packers—or in Bob Evans Farms.

This case is different. It is true that by walking off the

job, the six employees caused the second shift to shut down.

But they came back to work the next day. (Had they

quit, Trompler could have replaced them.) So far as
Nos. 01-3606 & 01- 3987 9

appears, Trompler was able to make up the lost production

in subsequent shifts at no higher cost or loss of revenue,

since it was producing a storable commodity rather than a

perishable commodity or a service, which is nonstorable. In

these circumstances, we cannot say that the Board was

unreasonable in holding that the walkout was a reasonable

means of protest, and by the same token the walkout was

not unlawful, a breach of contract, violent, or otherwise

indefensible. There may be cases in which our approach and

that of the Board would compel different outcomes, but

none has been brought to our attention and this case is

not one of them.

Our concurring colleague argues that we should either

overrule Bob Evans Farms or follow it without “reopen[ing]

the merits of it” or engaging in “critique.” He appears to

prefer the second course—a kind of blind or silent reaffirmance, based strictly on stare decisis rather than on any

conceivable merit of the decision in Bob Evans Farms itself—that will not “fuzz things up.” We do not understand

why he thinks that we are reopening the merits of that

decision (he certainly is) or otherwise fuzzing things up.

Since the Labor Board has asked us to overrule Bob Evans

Farms, we could not reasonably refuse to explain why we

have declined to do so in this case. It is not a satisfactory

explanation merely to intone “stare decisis.” American courts

do not follow a strict policy of stare decisis, and our colleague has participated in numerous overrulings.

The petition for review is denied and the Board’s crossapplication to enforce its order is granted.
10 Nos. 01-3606 & 01- 3987

EASTERBROOK, Circuit Judge, concurring in the judgment.

The National Labor Relations Board has asked us to

overrule Bob Evans Farms, Inc. v. NLRB, 163 F.3d 1012 (7th

Cir. 1998), which held that a strike is protected as concerted

activity only if “reasonable” in relation to the employees’

goals and the injury it inflicts on the employer. In response

to such a request we might (i) reaffirm Bob Evans, (ii)

invoke stare decisis to bypass debate about its soundness,

(iii) declare that the rule of Bob Evans does not matter to

this case (this was the Board’s alternative holding), or (iv)

overrule Bob Evans. Instead my colleagues critique Bob

Evans, imply that it is incompatible with NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), suggest that part of the

Bob Evans approach may be salvageable when the walkout

is “in protest against supervisors’ misconduct” (slip op.

at 4), discuss whether “reasonableness” might be essential

when labor has short-term monopoly power (slip op. 7-8),

and only then employ option (iii) from my list. This leaves

the law of the circuit in limbo. Will the next panel finish off

the wounded Bob Evans or nurse it back to health? How

should people behave in the interim? When may labor

strike? When may employers replace workers without

incurring large back-pay awards? How should the NLRB

decide the next case in its queue? Appellate courts ought to

do what they can to make predictable the legal consequences of people’s actions; instead my colleagues elect to

fuzz things up, increasing the future costs of both litigation

and the conduct of labor relations.

There is much to be said for the option of resting on stare

decisis. Appellate courts are at loggerheads about this question. On one side we have Bob Evans and, e.g., Yesterday’s

Children, Inc. v. NLRB, 115 F.3d 36, 45 (1st Cir. 1997); Dobbs

Houses v. NLRB, 325 F.2d 531, 538-39 (5th Cir. 1963). On the

other side, supporting the Board, are at least two circuits.

See, e.g., Arrow Electric Co. v. NLRB, 155 F.3d 762, 765 (6th
Nos. 01-3606 & 01- 3987 11

Cir. 1998); First National Bank of Omaha v. NLRB, 413 F.2d

921, 923-24 (8th Cir. 1969). Restless movement from one

side of this conXict to another will not make it go away;

sooner or later, either Congress or the Supreme Court must

bring harmony. Until that happens, judicial resources will

be conserved, and predictability increased, if each circuit

that has reached a decision sticks with it.

If we are to reopen the merits, however, as the majority

does, we should come to a conclusion and overrule Part IV

of Bob Evans, 163 F.3d 1022-24, the portion devoted to this

issue. In Washington Aluminum the Supreme Court said that

reasonableness does not play any role in the identification

of protected concerted conduct—that “it has long been

settled that the reasonableness of workers’ decisions to

engage in concerted activity is irrelevant to the determination of whether a labor dispute exists or not.” 370 U.S. at

16. The Court followed up by stating that when concerted

activity in a labor dispute is covered by the Act, only steps

that are “unlawful, violent or in breach of contract . . . [or]

characterized as ‘indefensible’ because they . . . show a disloyalty to the workers’ employer” are subject to penalty. Id.

at 17 (footnotes omitted). This leaves some loose ends.

Don’t all strikes show “disloyalty”? What does “indefensible” mean? The Justices did not suggest, however, that

their opinion should be read like a statute. The sentence I

have just quoted obtained the list (unlawful, violent, etc.)

from decisions of the NLRB that had won approval in earlier

suits; it did not suggest that the list was exclusive or something to be imposed on the Board. Because the National

Labor Relations Act is silent on how far protection extends

to employees’ concerted action, the Board has leeway to

make federal labor policy. We should respect the agency’s

decisions rather than try to tease answers out of old judicial

language that was not designed to settle all aspects of the

problem.
12 Nos. 01-3606 & 01- 3987

Bob Evans went off the tracks by asking, 163 F.3d at 1016-

20, whether Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), obliges the judiciary to

implement all doctrines that the Board proclaims when

resolving unfair-labor-practice charges. This is a misleading question. Chevron, like Washington Aluminum, is an

opinion rather than a statute. It reflects older doctrines

recognizing that the Executive Branch possesses discretion

when Congress has delegated interpretive authority, as the

National Labor Relations Act delegates to the Board. See

United States v. Mead Corp., 533 U.S. 218, 229-31 & n.12

(2001). The Supreme Court has told us that the Board may

use administrative adjudication to fill in the statutory gaps.

See Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S.

359, 364-65 (1998); Holley Farms Corp. v. NLRB, 517 U.S. 392

(1996); ABF Freight Systems, Inc. v. NLRB, 510 U.S. 317, 324-

25 (1994); NLRB v. Bell Aerospace, 416 U.S. 267 (1974). The

panel in Bob Evans said that the Board had arbitrarily failed

to consider the bearing of the employees’ chosen means of

protest. The Board has since rectified any omission: In the

decision under review it considered whether workers need

extra justification for a work stoppage, as opposed to some

other concerted action. It gave a negative answer, explicitly

rejected the analysis of Bob Evans, and reiterated a view it

has held for more than half a century. It is no longer

possible (if it ever was) to attribute the Board’s position to

carelessness or oversight.

Courts must respect the Board’s plausible interpretations unless they contradict a federal statute. See, e.g.,

Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 787-88

(1996); NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775,

786-87 (1990). The Board’s conclusion that strikes and other

walkouts are protected as concerted activity whether or not

they are “reasonable” does not contradict any statute, and
Nos. 01-3606 & 01- 3987 13

it is compatible with the premise that wages and working

conditions grow out of a test of economic strength. Labor

may resort to strikes and work-to-rule campaigns; workers

may quit individually or en masse. Employers may use

lockouts and permanent replacements and, after bargaining to impasse, may implement terms that workers abhor.

Neither labor nor management must show that any of these

steps is “reasonable.”

I do not think that cases such as Alaska Packers’ Ass’n v.

Domenico, 117 F. 99 (9th Cir. 1902), or Contempo Design, Inc.

v. Chicago & Northeast Illinois District Council of Carpenters,

226 F.3d 535 (7th Cir. 2000) (en banc), are helpful when

asking whether workers must use collective action short of

a work stoppage. These opinions ask not simply whether

one side had the other over a barrel but also whether the

side with leverage had promised by contract not to use it.

The seamen in Alaska Packers’ Ass’n agreed to wage terms

before embarking on the voyage; once at sea, after it was too

late to hire new hands, they refused to honor these terms.

Just so in Contempo Design, where a strike during the

busiest part of the season broke a promise. Washington

Aluminum tells us that strikes in breach of contract are not

protected as concerted activity. But Trompler’s employees

were not committed by contract to work on the day in

question (or any other) and thus had full use of all economic tools.

Unions often negotiate to acquire some bilateral-monopoly power, and when they do they can’t be forbidden to use

it. For example, a union of resort workers may insist

that its collective bargaining agreements expire just before

the hotel’s high season. If the workers strike immediately

on the contract’s expiration, would they be obliged to show

that their no-contract, no-work policy was “reasonable” in

relation to the employer’s losses? Surely not. Or consider
14 Nos. 01-3606 & 01- 3987

craft unions, which organize small parts of the labor force

that may be able to hold up large projects. Cf. American

Hospital Ass’n v. NLRB, 499 U.S. 606 (1991) (discussing

effect of the number of bargaining units at a single work

site). If five tower-crane workers walk off, a hundredmillion-dollar construction project may come to a halt. The

union doubtless hopes that this will lead to a handsome

wage increase; is the strike unlawful because one small

union has used a strategic position to line its members’

pockets? Again the answer is no. Fi nally, suppose workers

at the Federal Express hub in Memphis go on strike and

thus paralyze its worldwide operations; does labor law

compel them to return to work, lest they inflict “unreasonable” injury on businesses who rely on FedEx, or on the

company’s other workers? Yet again the answer is no; this

is the sort of leverage that unions have been exploiting,

without legal hindrance, since the Wagner Act. Whether

allowing this is good policy is for the political rather than

the judicial branch of government to say. For transportation and a few other industries the political answer (in the

Railway Labor Act and the Taft-Hartley Act) has been a

process that drags out the negotiations, coupled with a

power in the President to force temporary halt to strikes.

Outside of these statutes there is no such remedy. Yet if Bob

Evans is right, and it is “unreasonable” to exploit market

power, these political accommodations were unnecessary;

strikes at high season, or by craft unions, or at bottlenecks,

have been unlawful all along. That would come as a shock

to everyone involved.

Confining Bob Evans to a subset of all labor disputes—

those growing out of conduct (or “misconduct,” as workers see it) by supervisors—is no more attractive. The

identity of a supervisor ordinarily is not a mandatory

subject of bargaining, and employees therefore may not
Nos. 01-3606 & 01- 3987 15

strike in response to management’s choices. Trompler

contended that this doctrine entitled it to fire the workers;

the Board found, to the contrary, that the workers were

protesting the leadman’s deeds, and top management’s

failure to address protests about them, rather than the

leadman’s identity. Another person who ran the shop in

the same way would have been as objectionable to the

striking workers. Substantial evidence supports that decision. Thus, contrary to my colleagues’ assertion, slip op.

7, this case has nothing to do with “concerted activity over

supervisor selection.” Sex discrimination, the handling of

drug issues, and training—the nub of the employees’

grievances—affect terms and conditions of employment.

That supervisors influence these things does not convert

disputes about them into demands that employers choose

particular supervisors; if it did, then essentially all nonfinancial issues would be treated as complaints about the

employers’ abilities to have the supervisors of their choice.

These six employees walked out because they were

dissatisfied with the terms and conditions of their employment. The Board was entitled to hold that concerted

refusals to work, until conditions improve, are protected by

federal law, whether or not a third party such as an agency

or judge thinks the stoppage reasonable in relation to the

nature of the grievance and the cost the employer must

bear. Resolving this dispute should have required nothing

more than recognizing that the Board’s position (including

its handling of any issues left open by Washington Aluminum) does not contradict a federal statute. To the extent Bob

Evans holds otherwise, it is untenable.
16 Nos. 01-3606 & 01- 3987

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-1-03