                             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 er-
roneously, 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 presi-
dent 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 employ-
ees 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 employ-
ees—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 em-
ployees 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 dam-
age: 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 prob-
lems 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 Yester-
day’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 supervi-
sor. 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 gen-
eral right to veto the decisions of employers with regard to
the hiring and firing, the discipline and direction, of super-
visors, 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’ miscon-
duct, 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 pre-
cipitated 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—specifi-
cally, whether the means disrupt the employer’s business
disproportionately to the workers’ grievance. But even if the
protest, though concerned with employer decisions regard-
ing 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 con-
ditions), 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 re-
garding the timing and nature of concerted activities. The
National Labor Relations Act models labor relations as
tests of strength between workers and management. Work-
ers 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 employ-
ment, 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 require-
ment that the combatants act reasonably. Such a require-
ment 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 ap-
plied 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 super-
visors 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 pro-
ceedings 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 adju-
dication. 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 defini-
tion 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 con-
sider 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 differ-
ence 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 prop-
erty 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 compe-
tence of a supervisor and the removal of the supervisor
would have cured the grievance), and that standard ex-
cludes 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 de-
manding. But when the ship returned to port, the employ-
ers 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 exploi-
tation 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 con-
cerned 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 reaffirm-
ance, based strictly on stare decisis rather than on any
conceivable merit of the decision in Bob Evans Farms it-
self—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 col-
league has participated in numerous overrulings.
  The petition for review is denied and the Board’s cross-
application 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. Washing-
ton 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 conse-
quences 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 ques-
tion. 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 determina-
tion 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 dis-
loyalty 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 “indefensi-
ble” 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 some-
thing 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 mislead-
ing 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 interpreta-
tions 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 bargain-
ing 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 eco-
nomic tools.
   Unions often negotiate to acquire some bilateral-monop-
oly 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 hundred-
million-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 “unreason-
able” 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 transporta-
tion 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 work-
ers 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 de-
cision. 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 non-
financial 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 employ-
ment. 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 Alumi-
num) 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
