Industrial Cotton Mills, 4 Cir. Cambria Clay Products Co. National Labor Relations Board, 3 Cir. See, e. Footwear, Inc. 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. 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. National Labor Relations Board, U. Erie Resistor Corp. Both the rule adopted by the lower court and that now announced by this Court seem to me unacceptable.
On the other hand, it is hardly fair that the employer should be faced with the choice of risking damage to his business or incurring a penalty for taking honest action to thwart it. Between these two one-way streets lies a middle two-way course: a rule which would require reinstatement of the mistakenly discharged employee and back pay only as of the time that the employer learned, or should have learned, of his mistake, subject, however, to a valid business reason for refusing reinstatement.
Since I do not believe that this case presents the rare situation in which the Board can ignore motive, 2 I would vacate the judgment of the Court of Appeals and remand the case to the Board for further appropriate proceedings in light of what I believe to be the proper rule. 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.
Cusano involved a mistaken belief by the employer that an employee had made a misstatement about company profits, which might well have been protected campaign "oratory" even if the employee had made the misstatement.
Since the employer could simply have denied the truth of the profit figures, there was no business justification for discharging the employee.
Industrial Cotton Mills presents the closest analogy to the case before us. There, an employee was refused reinstatement following a strike for alleged strike misconduct -- throwing tacks on the street during a strike -- which he did not commit.
There was also little business justification for punishing the employee after the strike had ended, unlike the fear in this case of future sabotage by the employees.
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Find a Lawyer. Law Students. Labor Board, F. See, e. Footwear, Inc. 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.
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, U. Erie Resistor Corp. Both the rule adopted by the lower court and that now announced by this Court seem to me unacceptable. On the other hand, it is hardly fair that the employer should be faced with the choice of risking damage to his business or incurring a penalty for taking honest action to thwart it.
Between these two one-way streets lies a middle two-way course: a rule which would require reinstatement of the mistakenly discharged employee and back pay only as of the time that the employer learned, or should have learned, of his mistake, subject, however, to a valid business reason for refusing reinstatement. The Court of Appeals, however, rejected without discussion this suggestion of the existence of anti-union bias.
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. Prior thereto the burden was on the employer to prove that the discharged employee was in fact guilty of the misconduct. Rubin Bros. See Teamsters Local, supra, at In Allis-Chalmers the employer downgraded the status of plant inspectors after they had voted to join a union, and it was apparent that the employer acted only because of the inspectors' membership in the union.
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