Nat'l Labor Relations Bd. v. Burnup & Sims, Inc., 379 U.S. 21 (1964). · Go Syfert
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Nat'l Labor Relations Bd. v. Burnup & Sims, Inc., 379 U.S. 21 (1964). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case · …e are of the view that in the context of this record was plainly violated, whatever the employer's motive.... defeat of by employer action does not necessarily depend on the existence of an anti-union bias. ≈ altered
639 citation events (150 in the last 25 years) across 28 distinct courts.
Strongest positive: Equal Employment Opportunity Commission v. Day & Zimmerman NPS, Inc. (ctd, 2017-08-22)
Treatment trajectory · 1964 → 2026 · click a year to view as-of
1964 1995 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (quoted) Equal Employment Opportunity Commission v. Day & Zimmerman NPS, Inc. (2×)
D. Conn. · 2017 · quote attribution · 2 verbatim quotes · confidence low
e are of the view that in the context of this record was plainly violated, whatever the employer's motive.... defeat of by employer action does not necessarily depend on the existence of an anti-union bias.
discussed Cited as authority (rule) G.S. v. Quest Diagnostics Clinical Laboratories, Inc. (2×) also: Cited "see"
N.D. Cal. · 2024 · confidence medium
Proc. 35(a); Schlagenhauf v. Holder, 379 U.S. 21 104, 118 (1964) (stating that these two requirements-in controversy and good cause cannot be met 22 “by mere conclusory allegations of the pleadings-nor by mere relevance to the case-but require an 23 affirmative showing by the movant....”).
discussed Cited as authority (rule) Hitterman v. List Industries, Inc.
N.D. Ind. · 2022 · confidence medium
Alternatively, where there is no dispute as to the employer’s motive and an employee has been discharged for misconduct outside the scope of protected activity, it is appropriate to evaluate the discharge as a Section 8(a)(1) interference claim under NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964).
discussed Cited as authority (rule) Good Samaritan Medical Center v. National Labor Relations Board
1st Cir. · 2017 · confidence medium
Cir. 2016)("an unexplained divergence from [the Board's] precedent would render a Board decision arbitrary and capricious"). -30- There is an alternative line of cases that the NLRB could have turned to if its intent was to impose a heightened duty on the employer: NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964); Associated Grocers of New Eng., Inc. v. NLRB, 562 F.2d 1333, 1338 (1st Cir. 1977).
examined Cited as authority (rule) Consolidated Communications, Inc. v. National Labor Relations Board (4×) also: Cited "see"
D.C. Cir. · 2016 · confidence medium
An employer’s discipline of an employee for strike conduct constitutes an unfair labor practice if (i) “the discharged employee was at the time” of the alleged misconduct “engaged in a protected activity,” (ii) the employer knew the employee was engaged in a protected activity, (iii) the alleged misconduct during that protected activity provided the basis for discipline, and (iv) the “employee was not, in fact, guilty of that misconduct.” NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964). 7 Not all misconduct is sufficient to disqualify a striker from the Act’s protection, ho…
examined Cited as authority (rule) National Labor Relations Board v. RELCO Locomotives, Inc. (3×) also: Cited "see"
8th Cir. · 2013 · confidence medium
While RELCO's argument could be validated in a situation where the company's stated motive for termination was neutral, the Supreme Court has declined to extend this safe harbor to circumstances where the stated motivation was "an alleged act of misconduct in the course of [protected] activity." NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964).
discussed Cited as authority (rule) Roadway Express, Inc. v. NLRB
11th Cir. · 2011 · confidence medium
The Supreme Court has said that an employer violates section 8(a)(1) where “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 the employee was not, in fact, guilty of that misconduct.” NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964).
cited Cited as authority (rule) Meijer, Inc. v. NLRB
6th Cir. · 2006 · confidence medium
Similarly, the Supreme Court’s decision in NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964), supports our holding that a violation of § 8(a)(1) requires knowledge on the part of an employer.
examined Cited as authority (rule) Shamrock Foods Co. v. National Labor Relations Board (3×) also: Cited "see"
D.C. Cir. · 2003 · confidence medium
As the Supreme Court made clear in that case, the employer’s good faith is simply not relevant if the misconduct did not occur: “Over and again the Board ha[s] ruled that § 8(a)(1) is violated if the 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.” Burnup & Sims, 379 U.S. at 23 , 85 S.Ct. at 172 (emphasis added). 2 The Court explained the rationale for that rule as follows: Th[e] rule seems to us to be in conformity with the policy behind § 8(a)(1).
discussed Cited as authority (rule) Medeco Security Locks v. NLRB
4th Cir. · 1998 · confidence medium
Co., 380 U.S. 263, 269 (1965) ("A violation of § 8(a)(1) alone . . . presupposes an act which is unlawful even absent a discriminatory motive."); NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 22-24 (1964) (finding violation of § 8(a)(1) "whatever the employer's motive"); Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir. 1981) (test is objective coercive- ness; employer intent is not part of offense); Caterpillar Tractor Co. v. NLRB, 638 F.2d 140, 141 (9th Cir. 1981) (no need to inquire into motive if employer does not have legitimate business justification); National Cash Register Co. v. NLR…
examined Cited as authority (rule) Waters v. Churchill (4×) also: Cited "see"
SCOTUS · 1994 · confidence medium
Where an employer penalizes an employee on the basis of a third-party report of speech that the employer should have suspected, based on the content of the report and the employer's familiarity with the employee and the workplace, to have been constitutionally protected, this balance must reflect the facts that employees' speech on matters of public concern will often (as we said of employees' union activities) "engende[r] strong emotions and giv[e] rise to active rumors," and, critically, that "the example of employees who are discharged on false charges would or might have a deterrent effect…
discussed Cited as authority (rule) M. B. Zaninovich, Inc. v. Agricultural Labor Relations Board (2×)
Cal. Ct. App. · 1981 · confidence medium
The United States Supreme Court reinstated the NLRB decision and held section 8 (a)(1) of the NLRA is violated "if an employee is discharged for misconduct arising out of protective activity, despite the employer's good faith, when it is shown the misconduct never occurred." ( 379 U.S. at p. 23 [13 L.Ed.2d at p. 3].) The Supreme Court justified its holding as follows: "That rule seems to us to be in conformity with the policy behind § 8(a)(1).
cited Cited as authority (rule) Detroit Motion Picture Projectionists Union v. Employment Relations Commission
Mich. · 1978 · confidence medium
We are not in the realm of managerial prerogatives.” Burnup & Sims, supra, 22-24.
discussed Cited as authority (rule) Commonwealth v. Fabrication Specialists, Inc.
Pa. · 1978 · confidence medium
If an employee may be discharged for engaging in activity protected by the Act, 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.” NLRB v. Burnup & Sims, 379 U.S. 21, 23 , 85 S.Ct. 171, 172 , 13 L.Ed.2d 1, 3 (1964).
cited Cited as authority (rule) Jeannette Corp. v. National Labor Relations Board
3rd Cir. · 1976 · signal: cf. · confidence medium
Cf. N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21, 23 , 85 S.Ct. 171, 172 , 13 L.Ed.2d 1, 3 (1964); N.L.
discussed Cited as authority (rule) Jeannette Corporation v. National Labor Relations Board
3rd Cir. · 1976 · signal: cf. · confidence medium
Cf. N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21, 23 , 85 S.Ct. 171, 172 , 13 L.Ed.2d 1, 3 (1964); N.L.R.B. v. Hudson Transit Lines, Inc., 429 F.2d 1223, 1227 (3d Cir. 1970). 8 Once it is established that the employer's conduct adversely affects employees' protected rights, the burden falls on the employer to demonstrate "legitimate and substantial business justifications" for his conduct.
discussed Cited "see" King Soopers, Inc. v. National Labor Relations Board (2×)
D.C. Cir. · 2017 · signal: see · confidence high
See id. at 23 , 85 S.Ct. 171 .
discussed Cited "see" Patricia Villa v. Cavamezze Grill, LLC (2×)
4th Cir. · 2017 · signal: see · confidence high
See NLRB v. Burn-up & Sims, Inc., 379 U.S. 21, 23 , 85 S.Ct. *904 171, 13 L.Ed.2d 1 (1964) (Section 8(a)(1) of the NLRA "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.”); see Medeco Sec.
examined Cited "see" Remington Lodging & Hospitality, L.L.C. v. National Labor Relations Board (3×)
5th Cir. · 2017 · signal: see · confidence high
N.L.R.B. v. Arkema, Inc., 710 F.3d 308, 320-21 (5th Cir. 2013); see MCPC Inc. v. N.L.R.B., 813 F.3d 475, 487-90 (3d Cir. 2016) (distinguishing Wright Line from the framework established in N.L.R.B. v. Burnup. & Sims, Inc., 379 U.S. 21, 23 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964)); Shamrock Foods Co. v. N.L.R.B., 346 F.3d 1130, 1135-36 (D.C.
discussed Cited "see" National Wildlife Federation v. U.S. Army Corps of Engineers
D.D.C. · 2016 · signal: see · confidence high
See Summers v. Earth Island Inst., 555 U.S. 488, 494 , 129 S.Ct. 1142 , 173 *13 L.Ed.2d 1 (2009); see also Sierra Club v. Jewell, 764 F.3d 1, 5-6 (D.C.Cir.2014) (accepting the appreciation and study of aesthetic features as a concrete interest); id. at 5 (“[I]njury in fact can be found when a defendant adversely affects a plaintiffs enjoyment of flora or fauna.” (internal quotation marks omitted)).
discussed Cited "see" MCPc Inc. v. National Labor Relations Board (2×)
3rd Cir. · 2016 · signal: see · confidence high
See Burnup & Sims, 379 U.S. at 23 , 85 S.Ct. 171 (citing Mid-Continent Petroleum Corp., 54 N.L.R.B. 912 , 933-34 (1944) (where union members allegedly committed unlawful seizure of company property and engaged in acts of violence during a strike); Standard Oil Co. of Cal., 91 N.L.R.B. 783 , 790-91 (1950) (where strikers were allegedly discharged for acts such as throwing rocks during a strike); Rubin Bros.
discussed Cited "see" Palace Sprt Entrtnmt v. NLRB (2×)
D.C. Cir. · 2005 · signal: see · confidence high
See Burnup & Sims, 379 U.S. at 22 , 85 S.Ct. 171 ("We find it unnecessary to reach the questions raised under § 8(a)(3) for we are of the view that in the context of this record § 8(a)(1) was plainly violated...."); see also Wal-Mart Stores, Inc., 341 N.L.R.B.
discussed Cited "see" Palace Sports & Entertainment, Inc. v. National Labor Relations Board (2×)
D.C. Cir. · 2005 · signal: see · confidence high
See Burnup & Sims, 379 U.S. at 22 , 85 S.Ct. 171 (“We find it unnecessary to reach the questions raised under § 8(a)(3) for we are of the view that in the context of this record § 8(a)(1) was plainly violated .... ”); see also Wal-Mart Stores, Inc., 341 N.L.R.B.
discussed Cited "see" Webco Industries, Inc. v. Natioanal Labor Relations Board (2×)
10th Cir. · 2000 · signal: see · confidence high
See 379 U.S. at 22-23 , 85 S.Ct. 171 . b.
cited Cited "see" Cadbury Beverages v. NLRB
D.C. Cir. · 1998 · signal: see · confidence high
See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964).
examined Cited "see" Cadbury Beverages, Inc. v. National Labor Relations Board (3×)
D.C. Cir. · 1998 · signal: see · confidence high
See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964).
examined Cited "see" Diamond Walnut Growers, Inc. v. National Labor Relations Board (3×)
D.C. Cir. · 1996 · signal: see · confidence high
See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 , 85 S.Ct. 171, 172-73 , 13 L.Ed.2d 1 (1964).
examined Cited "see" Diamond Walnut Growers, Inc. v. National Labor Relations Board (3×)
D.C. Cir. · 1996 · signal: see · confidence high
See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 , 85 S.Ct. 171, 172-73 , 13 L.Ed.2d 1 (1964).
discussed Cited "see" National Labor Relations Board v. Ideal Dyeing and Finishing Co., Inc. (2×)
9th Cir. · 1992 · signal: see · confidence high
See Burnup & Sims, 379 U.S. at 22 ("we are of the view that in the context of this record § 8(a)(1) was plainly violated, whatever the employer's motive"); id. at 23 ("Defeat of those rights by employer action does not necessarily depend on the existence of an anti-union bias.
discussed Cited "see" National Labor Relations Board v. Champ Corporation (2×)
9th Cir. · 1991 · signal: see · confidence high
See Burnup & Sims, 379 U.S. at 23 , 85 S.Ct. at 172 (an employer may not discharge an employee for misconduct that did not occur even if the employer had a good faith belief that such misconduct occurred).
discussed Cited "see" National Labor Relations Board v. Champ Corporation (2×)
9th Cir. · 1990 · signal: see · confidence high
See Burnup & Sims, 379 U.S. at 23 , 85 S.Ct. at 172 (an employer may not discharge an employee for misconduct that did not occur even if the employer had a good faith belief that such misconduct occurred).
examined Cited "see" Teledyne Industries, Inc. v. National Labor Relations Board (6×)
6th Cir. · 1990 · signal: see · confidence high
See NLRB v. Burnup & Sims, 379 U.S. 21 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964).
examined Cited "see" Teledyne Industries, Inc. v. National Labor Relations Board (6×)
6th Cir. · 1990 · signal: see · confidence high
See NLRB v. Burnup & Sims, 379 U.S. 21 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964).
examined Cited "see" Richmond Recording Corp. v. National Labor Relations Board (3×)
7th Cir. · 1988 · signal: see · confidence high
See NLRB v. Thayer, 213 F.2d 748, 756-57 (1st Cir.), cert. denied, 348 U.S. 883 , 75 S.Ct. 123 , 99 L.Ed. 694 (1954). 24 The union may be able to refute the Board's credibility resolutions if it can show that the employees did not in fact engage in such misconduct, see NLRB v. Burnup & Sims, 379 U.S. 21, 22-23 , 85 S.Ct. 171, 172-73 , 13 L.Ed.2d 1 (1964), or that the misconduct was not serious enough to warrant discharge, see Newport News Shipbuilding & Dry Dock Co., 738 F.2d at 1408 .
examined Cited "see" Anja Engineering Corporation v. National Labor Relations Board (6×)
9th Cir. · 1982 · signal: see · confidence high
See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 , 85 S.Ct. 171, 172 , 13 L.Ed.2d 1 (1964).
examined Cited "see" Garrett Railroad Car & Equipment, Inc. v. National Labor Relations Board, United Steelworkers of America, Afl-Cio and Its Local 8089, Intervenor (6×)
3rd Cir. · 1982 · signal: see · confidence high
See NLRB v. Burnup & Sims, Inc., 379 U.S. 21 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964). .
examined Cited "see" Transportation Enterprises, Inc. v. National Labor Relations Board (3×)
5th Cir. · 1980 · signal: see · confidence high
See N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964); International Ladies’ Garment Wkrs.
examined Cited "see" Ohio Power Company v. National Labor Relations Board (3×)
6th Cir. · 1976 · signal: see · confidence high
See N.L.R.B. v. Bumup and Sims, Inc. 379 U.S. 21, 23 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964).
examined Cited "see" National Labor Relations Board v. Armcor Industries, Inc. (6×)
3rd Cir. · 1976 · signal: see · confidence high
See N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21, 23-4 , 85 S.Ct. 171, 172-73 , 13 L.Ed.2d 1, 3-4 (1964).
examined Cited "see" Leviton Manufacturing Company, Inc. v. National Labor Relations Board (3×)
1st Cir. · 1973 · signal: see · confidence high
See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23-24 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964).
examined Cited "see" Dallas General Drivers, Warehousemen & Helpers, Local Union No. 745 v. National Labor Relations Board (3×)
D.C. Cir. · 1968 · signal: see · confidence high
See NLRB v. Burnup & Sims, Inc., 379 U.S. 21 , 23 n. 3, 85 S.Ct. 171 , 13 L.Ed. 2d 1 (1964); Rubin Bros.
discussed Cited "see, e.g." Drew-King v. Amazon.com Services LLC
E.D.N.Y · 2022 · signal: see also · confidence low
In connection with his Burnup & Sims analysis, the ALJ concluded that Respondent failed to carry its burden at step two of the three-step analysis, finding that the evidence failed to indicate that Respondent had an honest, good-faith belief that 9 The video of the altercation between Bryson and Evans, see ECF No. 47-3, lends support to the conclusion that there is reasonable cause to believe that Respondent engaged in an unfair labor practice. 10 Under the Burnup & Sims standard, “[Section] 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protecte…
discussed Cited "see, e.g." AFSCME, Michigan Council, Local 574-A v. City of Troy (2×)
Mich. Ct. App. · 1990 · signal: see also · confidence low
North Ottawa Community Hosp [1982 MERC Lab Op 555], supra; City of Detroit (Fire Dep’t), 1986 MERC Lab Op 14; Michigan State Univ, 1983 MERC Lab Op 419; see also NLRB v Burnup & Sims [,] Inc, 379 US 21 [ 85 S Ct 171 ; 13 L Ed 2d 1 ], 57 LRRM 2385 (1964).
examined Cited "see, e.g." Steven Lockert v. United States Department of Labor, Ann McLaughlin Secretary of Labor, and Pullman Power Products Corporation, Respondent-Intervenor (3×)
9th Cir. · 1989 · signal: compare · confidence low
Compare NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 , 85 S.Ct. 171, 173 , 13 L.Ed.2d 1 (1961) (noting that “[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,” court held that an employer violates Section 8(a)(1) of the National Labor Relations Act when it discharges an employee who has engaged in protected activity on the basis of unfounded charges of misconduct).
examined Cited "see, e.g." Clayton v. Gold Bond Building Products (3×)
E.D. Mich. · 1987 · signal: see, e.g. · confidence low
See, e.g., NLRB v. Burnup & Sims, Inc., 379 U.S. 21 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964); NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 , 59 S.Ct. 490 , 83 L.Ed. 627 (1939).
examined Cited "see, e.g." National Labor Relations Board v. Coca Cola Bottling Company of Buffalo, Inc. (3×)
2d Cir. · 1987 · signal: see also · confidence low
See NLRA § 8(a)(1), 29 U.S.C. § 158 (a)(1) (1982); see also NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 , 85 S.Ct. 171, 172 , 13 L.Ed.2d 1 (1964).
examined Cited "see, e.g." Universidad Central De Bayamon v. National Labor Relations Board, and Union De Profesores Universitarios, Intervenor (6×)
1st Cir. · 1986 · signal: see, e.g. · confidence low
See, e.g., N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964).
examined Cited "see, e.g." General Teamsters Local No. 162 v. National Labor Relations Board (3×)
9th Cir. · 1986 · signal: see also · confidence low
Schreiber Manufacturing, Inc., 725 F.2d at 415-16 ; General Telephone, 251 NLRB at 738-39; see also NLRB v. Burnup & Sims, Inc., 379 U.S. 21 , 23 n. 3, 85 S.Ct. 171 , 172 n. 3, 13 L.Ed.2d 1 (1964).
examined Cited "see, e.g." General Teamsters Local No. 162 v. National Labor Relations Board (3×)
9th Cir. · 1986 · signal: see also · confidence low
Schreiber Manufacturing, Inc., 725 F.2d at 415-16 ; General Telephone, 251 NLRB at 738-39; see also NLRB v. Burnup & Sims, Inc., 379 U.S. 21 , 23 n. 3, 85 S.Ct. 171 , 172 n. 3, 13 L.Ed.2d 1 (1964).
examined Cited "see, e.g." Catholic Bishop of Chicago v. National Labor Relations Board (3×)
7th Cir. · 1977 · signal: see, e.g. · confidence low
See, e. g., NLRB v. Burnup & Sims, Inc., 379 U.S. 21 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964).
Retrieving the full opinion text from the archive…
National Labor Relations Board
v.
Burnup & Sims, Inc.
15.
Supreme Court of the United States.
Nov 9, 1964.
379 U.S. 21
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.
Douglas, Harlan.
Cited by 170 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 81%
Citer courts: D. Connecticut (2)

Lead Opinion

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 state[*22] ments. An unfair labor practice proceeding was brought. The Board held that the discharges violated §§' 8 (a)(1) and 8 (a) (3) of the Act,[1] 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.[2] Section 7 grants employees,[*23] 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.[3] 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[*24] 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.

1

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 . . . .”
2

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[*23] 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.

3

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.

Concurrence in Part

Mr. Justice Harlan,

concurring in part and dissenting in part.

Both the rule adopted by the lower court and that now announced by this Court seem to me unacceptable. On the one hand, it impinges on the rights assured by §§ 7 and 8 (a)(1) to hold, as the Court of Appeals did, that the employee must bear the entire brunt of his honest, but mistaken, discharge. 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 mistakénly discharged employee- and back pay only as of the time that the employér learned, or should have learned, of his mistake, subject, however, to a valid business reason for refusing reinstatement.[1] Such a rule gives offense neither to any policy of the statute nor to the dictates of fairness to the employer, and in my opinion represents a reasonable accommodation between the two inflexible points of view evinced by the opinions below and here.

[*25] Since I do not believe that this case presents the rare situation in which the Board can ignore motive,[2] 1 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.

1

As for example, if a replacement.had been hired and the discharged employee unduly delayed in apprising the employer of the mistake.

2

See Teamsters Local v. Labor Board, 365 U. S. 667, 677 (1961) (concurring opinion). Respondent here had a significant business justification — to avoid dynamiting of a silo — for discharging the employees, unlike the situations presented in Allis-Chalmers Mfg. Co. v. Labor Board, 162 F. 2d 435; Cusano v. Labor Board, 190 F. 2d 898, and Labor Board v. Industrial Cotton Mills, 208 F. 2d 87. See Teamsters Local, supra, at 680.

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. There was no business justification for the employer’s action except for his feeling that union members should not exercise supervisory powers and the Board was therefore justified in treating this as an unfair labor practice without a specific finding of discriminatory motive.

Cusano involved a mistaken belief by the employer that an employee had made a misstátement 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. The Court of Appeals recognized the special congressional concern for the right to strike embodied in §§ 2 (3) and 13 of the Act, and held that the employer’s lack of antiunion motive was irrelevant. 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.