NATIONAL LABOR RELATIONS BOARD v. BURNUP & SIMS, INC.
No. 15.
Argued October 15, 1964.
Decided November 9, 1964.
Arnold Ordman argued the cause for petitioner. With him on the brief were Solicitor General Cox, Dominick L. Manóli and Norton J. Come.
Erie Phillips argued the cause and filed a brief for respondent.
Mr. Justice Douglas
delivered the opinion of the Court.
Two employees in respondent’s plant, Davis and Harmon, undertook to organize the employees who worked there. The Superintendent was advised by another employee, one Pate, that Davis and Harmon, while soliciting him for membership in the union, had told him the union would use dynamite to get in if the union did not acquire the authorizations. Respondent thereafter discharged Davis and Harmon because of these alleged statements. An unfair labor practice proceeding was brought. The Board held that the discharges violated §§' 8 (a)(1) and 8 (a) (3) of the Act,61 Stat. 136,140-141,29 U. S. C. §§ 158 (a)(1) and (a)(3). It found that Pate’s charges against Davis and Harmon were untrue and that they had actually made no threats against the company’s property; and it concluded that respondent’s honest belief in the truth of the statement was not a defense. 137 N. L. R. B. 766, 772-773.
The Court of Appeals refused reinstatement of Davis and Harmon, holding that since the employer acted in good faith, the discharges-were not unlawful. 322 F. 2d 57. We granted the petition for certiorari because of a conflict among the. Circuits. Cf. with the opinion below Labor Board v. Industrial Cotton Mills, 208 F. 2d 87; Labor Board v. Cambria Clay Products Co., 215 F. 2d 48; Cusano v. Labor Board, 190 F. 2d 898.
We find it unnecessary to reach the questions raised under § 8 (a)(3) for we are of the view that in thé context of this record § 8 (a)(1) was plainly violated, whatever the employer’s motive. Section 7 grants employees, inter alia, “the right to self-organization, to form, join, or assist labor organizations.” Defeat of those rights by employer action does not necessarily depend on the existence of an anti-union bias. Over and again the Board has ruled that §8 (a)(1) is violated if an employee is discharged for misconduct arising out of a protected activity, despite the employer’s good faith, when it is shown that the misconduct never occurred. See, e. g., Mid-Continent Petroleum Corp., 54 N. L. R. B. 912, 932-934; Standard Oil Co., 91 N. L. R. B. 783, 790-791; Rubin Bros. Footwear, Inc., 99 N. L. R. B. 610, 611. In sum, § 8 (a) (1). is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct.
That rule seems to us to be in conformity with the policy behind §8 (a)(1). Otherwise the protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees. Union activity often engenders strong emotions and gives rise to active rumors. A protected activity acquires a precarious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith. It is the tendency of those discharges to weaken or destroy the § 8 (a)(1) right that is controlling. We are not in the realm of managerial prerogatives. Rather we are concerned with the manner of soliciting union membership over which the Board has been entrusted with powers of surveillance. See Garment Workers v. Labor Board, 366 U. S. 731, 738-739; Labor Board v. Erie Resistor Corp., 373 U. S. 221, 228-229. Had the alleged dynamiting threats been wholly disassociated from § 7 activities quite different considerations might apply.
Reversed.
Sections 8 (a)(1) and (3) .read as follows:
“It shall be an unfair labor practice for an employer—
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .”
As an alternative ground for its finding that the Act had been violated) the Board held that Pate’s allegation was merely “seized up [on]” by the respondent as an “excuse” for the discharges of Davis and Harmon. 137 N. L. R. B. 766, 772-773. The Court of Appeals, however, rejected without discussion this suggestion of the existence of anti-union bias. 322 F. 2d 57, 59, 61. In its petition for writ of certiorari the Board expressly stated that “The propriety of this action [by the Court of Appeals] is not questioned here.” In fight of this concession it is unnecessary for us to determine whether the Board’s alternative finding of a discriminatory motivation is supported by substantial evidence.
The Rubin Bros, case made a qualification as to burden of proof. Prior thereto the burden was on the employer to prove that the discharged employee was in fact guilty of the misconduct. Rubin Bros, said that “once such an honest belief is established', the General Counsel must go forward with evidence to prove that the employees did not, in fact, engage in such misconduct.” 99 N. L. R. B., at 611.
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