Earl Warren: Number 15, National Labor Relations Board versus Burnup & Sims.
Arnold Ordman: May it please the Court.
Earl Warren: Mr. Ordman.
Arnold Ordman: May it please the Court. This case is here on a writ of certiorari to the United States Court of Appeals for the Fifth Circuit. That court denied enforcement to a Board order which directed reinstatement with back pay of two employees who have been discharged. The question presented for resolution by this Court is whether an employer may lawfully discharge employees who are engaging in activities protected by the National Labor Relations Act. In this case, the activity was soliciting employees for membership in the union, whether you may discharge such employees lawfully, merely because he has a mistaken belief that in the course of that protected activity, the employees engaged in certain misconduct which would have justified the discharge. The Board held that the mistaken belief did not exonerate the employer and the court below held that it did. The facts are simple and undisputed. The company was a Florida corporation engaged in business in Melbourne, Florida where it manufactured and sold concrete products. The employees of the company were not organized but in September of 1961, the employees engaged in a walkout in support of a demand for wage increase. Among the leaders of this walkout were the two employees who was discharged and we're concerned about here named Harmon and Davis and a third employee named McKnight. The walkout and the wage dispute were soon resolved. The employees went back to work but not long thereafter, Davis, Harmon and McKnight were discharged allegedly for lack of work with the understanding that if that be recalled as soon as the volume of work resumed. Now, the Board found in this case that this layoff, that the alleged lack of work was a pretext and actually the three employees were laid off because they engaged in union activity and the court below accepted that finding and that part of the court case is not before this Court but it serves to explain the events which immediately followed. McKnight, the third employee was put back to work in normal force but Davis and Harmon were never brought back to work. It seems that right after the wage dispute, Davis went to a local union affiliated with the Teamsters and an organizational campaign started in attempt to organize a campaign. But Davis and Harmon were very active in the organizational campaign and solicited employees at their homes for membership in the union. Now, one of the employees solicited was a fellow named Pate. He orally reported to the superintendent of the company and in turn reported to the manager that Davis and Harmon had come to his home and had solicited his membership in the union. But in the course of that solicitation, he said, one of them threatened that he was going to -- that if the union did not get in -- get into the plant, one of them was going to dynamite the gravel bins in the plant and make it impossible for anybody to work. Now, when the company got this information, it was understandably disturbed. There was consultation with counsel and about 12 days later in the presence of company counsel, the company got a statement under oath, an affidavit from this employee named Pate in which in substance he repeated what he had stated in the oral report. But with the discrepancy about whether Davis or Harmon had made the threat but I do not think that is material here. Again, the company took no further action thereafter for two weeks. They got the sworn affidavit on October 25th. Two weeks later on November 8th, the company manager sent letters of discharge to the two employees, Davis and Harmon saying in essence, we had laid you off last September with the understanding that once business picked up, we'd put you back to work. But business has picked up but we are not going to put you back to work because in the words of the manager in the letter, says, “It has come to my attention that you made or condoned serious threats to damage property of the company should the union fail to win the election.” Now, from the company's point of view, if the Court please, this threat was a very serious threat. Threat to dynamite is serious and it was maybe more serious because as the company knew Harmon, one of the two employees involved, had even had a little experience on the job of working with a dynamite. But other than obtaining a sworn affidavit from Pate, from this employee who made the oral report, the company made no investigation of the matter whatever. It didn't inquire from Harmon and Davis as to whether they have made the threat and it didn't initiate any investigation of any kind that even a police investigation which as respondent tells us in his brief might have been justified because this was a felony, threatening to blow up the plant was a felony under Florida law punishable by 20 years -- as much as a 20-year sentence. Now, the only action he did take 10 days after they receive the report and after -- two weeks after they received the statement under oath was to write a letter of discharge. Now, I almost wanted to comment in a lighter vain whether this was a kind of course -- whether this course of conduct is way of handling the threat was exactly the way to win friends or influence dynamite as might leave some doubt at least in a serious way. A threat to dynamite a plant is so serious as to suggest that maybe more serious measures should have been taken if the security of the plant was to be --
Byron R. White: For having said that Mr. Ordman, do I understand that this case is submitted to us on the premise that nevertheless the employer had good faith -- believed that that was (Voice Overlap)
Arnold Ordman: That is correct, Your Honor. And the case doesn't turn on this but these are the countervailing interest which in our view the Board had to balance when it reached its final determination. We are assuming -- we are assuming for purposes of this case that good faith of the employer that he believed the threat was made.
Byron R. White: But what did the Board find -- what did the Board find?
Arnold Ordman: The Board made its final attempt --
Byron R. White: I thought it rested its holding on the lack of bad faith -- (Voice Overlap) faith.
Arnold Ordman: The Board made -- the Board made two findings in this case. It predicated explaining on two grounds. The first one was that the discharge by the employer was in essence that it was agreed that the threat that the company seized upon the threat is a pretext, so that wasn't its real reason. The Board found as one of its grounds that the threat being a pretext. The real reason for the discharge was the dynamiting. Now, the court below didn't talk about that finding but we must assume it rejected it.Because it is --
William J. Brennan, Jr.: Well, I'm a little confused Mr. Ordman. Are you asking us to defend the Board's finding here on the basis that there was -- this was a mere pretext for the discharge?
Arnold Ordman: We are -- we are not. We think the court below or we must assume the court below rejected the pretext theory that the Board had advanced --
William J. Brennan, Jr.: Well, I understand but --
Arnold Ordman: And I --
William J. Brennan, Jr.: Am I wrong about this? I thought of the universal tenet if there was a reasonable basis for the conclusion of the Board that this was merely a pretext and that then this had some bearing on the power of the Court of Appeals to set aside the Board's conclusion.
Arnold Ordman: We think it does but we concluded in framing our petition for certiorari and respondent correcting points about it, maybe this was the kind of fact issue on which we did not want a petition for certiorari and the question representing the petition for certiorari is the second ground upon which the Board decided this case namely, assuming and we do assume in this case a good faith belief on the part of the employer that these people had engaged in misconduct. If in fact as the record here affirmatively shows the misconduct did not occur, the threat was not made, the Board finds that the employees are entitled to the guaranty of Section 7 to engage in protected activity which --
William J. Brennan, Jr.: You may want in maybe a matter of interest to the Board and generally to the profession will someday decide that question but are you in position to abandon that? I -- I thought -- I thought it has --
Arnold Ordman: I think --
William J. Brennan, Jr.: -- revision put limitations on what the Court of Appeals might do in setting aside the Board's factual conclusion and that our responsibility here was to see that the Courts of Appeals adhered to the congressional standing.
Arnold Ordman: I think the court described -- I think that Mr. Justice Brennan, if I'm correct on that and I think the Court would be free to do so. However, I must candidly acknowledge that we did not urge that question. In fact, it was waived in the petition for certiorari.
Speaker: The only question you present in the petition is imprisonment.
Arnold Ordman: The question that we present --
Speaker: What you say --
Arnold Ordman: -- in the petition is namely, assuming as we do here that the petition --
Speaker: Taking the Board findings more than an assumption is taking the Board findings.
Arnold Ordman: That's right. The Board may -- (Voice Overlap) an alternative ground for that decision.
Speaker: Right.
Arnold Ordman: It assumes that this threat had been made that the employer honestly believed that it has been made. But the Board made a further finding and these findings are accepted by the court below that the threat, in fact, had not been made. There was no evidence to whatever the threat had been made. The company didn't even offer a proof that the threat had actually been made. And the second ground upon which the Board made its finding and the ground upon which the court below ruled is that where these charges are made on the basis of a mistaken belief that misconduct has occurred in the course of an activity protected by Section 7 but where the record affirmatively shows that the misconduct did not occur, then the Board finds that the discharge is an unfair labor practice under Section 8 (a) (3) of one of the Act. And that's the posture --
Speaker: A good faith -- a good faith mistaken belief.
Arnold Ordman: A good faith mistaken belief. Now the court below --
Speaker: The reason this case is here on that question because the circuit has excluded them.
Arnold Ordman: That is correct You Honor. The court below, the Fifth Circuit has held twice now that a good faith and mistaken belief as it held in this case is a defense and that once an employer has a good faith belief, that an employee has engaged in a misconduct, whether the employee has or has not engaged in misconduct is an irrelevant circumstance as the court below put it no matter what the circumstances are and the respondent also claims that motivation --
William J. Brennan, Jr.: Do I understand Mr. Ordman, that your enforcement petition in the Court of Appeals did not ask enforcement based on the finding of pretext?
Arnold Ordman: We did ask for it from --
William J. Brennan, Jr.: You did?
Arnold Ordman: We did ask. We asked it on both grounds. We argued both grounds --
William J. Brennan, Jr.: I must say --
Arnold Ordman: -- below.
William J. Brennan, Jr.: I'm really troubled how you can wash that out and come here. I'm thinking now in the context of the Taft-Hartley Amendment to the Circuit Court review on enforcement petition is on limitation as I understood it that Taft-Hartley imposed on this Court's review.
Arnold Ordman: I might suggest respectfully to you Mr. Justice Brennan that we have in the National Labor Relations Board approximately 280 cases last year in the Courts of Appeals. In a number of those, we are reversed on factual determinations. We do not feel free to bring to the Court every instance where we're reversed on a factual determination. We regarded this as one of those cases and we didn't think we ought to burden the Court with the volume of litigation we have on what we assume the court below really reversed us on what it assumed to be a factual determination. The pretext was not the reason. That's why we're here.
Arthur J. Goldberg: (Inaudible) what the government did when it was first argued before it (Inaudible) determination is to stand on this ground --
Arnold Ordman: That is right. That is correct, Your Honor. Now, on the proposition that where a concern -- where there is a mistaken belief that so-called was a mistaken belief doctrine as I indicate that the court below doesn't agree with us and neither this respondent. And I assume that a good faith belief is always sufficient. Now, this occurs in the context of where the employees in fact were engaged in a protected activity, the activity and the only activity. The employees were engaged in here with soliciting union membership which falls as we see it within the specific rubric of Section 7 of the Act. In other words, there is a guaranteed right to employees to “form, join or assist labor organizations”. So the only activity they were engaged in was one specifically guaranteed. Now, the unfair labor practice provisions of the Act are designed to protect that guaranty. In Section 8 (a) (1) in blanket terms as it's an interference of an employer, an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise any of the Section 7 rights. Now, the remaining unfair labor practice provisions are just tailor-made provisions designed to reach specific kinds of violations that the Congress was concerned about but Section 8 (a) (1) subsumes them all. Now, in this case, we don't think we have to reach even Section 8 (a) (3), which says you can't discriminate against an employee to encourage or discourage membership. We think 8 (a) (1) is enough. Once we start with the proposition that solicitation is a protected activity, we think Section 7 covers it and Section 8 (a) (1) makes an unfair labor practice. If these individuals had been discharged for engaging in solicitation of union membership, the violation would have been clear, we'd have no argument. This was I guess what the -- and not what this Court decided in the Republic Aviation case in 1945. But the respondent argues, we didn't discharge these people for engaging solicitation, we discharged them for threatening to dynamite the plant. But when we examined the facts, we find that the dynamiting did not take -- the threat had not been made. If the threat had been made and in the posture of the case has, we have it here before this Court, the Board would have found no unfair labor practice. It would have applied the test this Court laid down in Republic mainly where you must weigh, first, the statutory rights of the employees to engage in organizational activity as against the countervailing interest of the employer, his undisputed interest to protect his property or to maintain discipline in his operation to safeguard his business operation. But we have here only one half of the equation. You have the undisputed right of the employees to engage in organizational activity but in fact, you have no threat. The Board so found and the court below accepted this finding. You have no threat to dynamite the property so you only have the Republic half of the equation and we think under these circumstances, the good faith belief of the employer that these people intended to dynamite the plant is no more of a defense to him than say the lack of anti-union motivation which you had in the Republic case. Now, this is the theory which was adopted --
Speaker: That means that the employers got to wait until the dynamiting takes place before they can fire them.
Arnold Ordman: In the context of this case, and looking at it, this employer as I suggested, the extent of the investigation, the employer made is madly doubtful. However, we'll assume it's a good faith.
Speaker: Yes but we're here on the premise Mr. Ordman --
Arnold Ordman: Yes sir.
Speaker: -- if you don't mind my repeating that way.
Arnold Ordman: Yes sir.
Speaker: Here on the premise, and the only question is a good faith belief on the part of the employer.
Arnold Ordman: Right.
Speaker: And therefore, these other things are quite collateral to this field.
Arnold Ordman: I think you're correct Your Honor and I would suggest this. This is not a case where we have to -- where we're seeking blame or censure of the employer. We are not a penal statute. We're a remedial statute. As against the good faith of the employer and assuming his complete good faith and his complete innocence, we have to be concerned about the two employees here. These are the values we have to weigh. Now, who should bear and this a position at least the Fourth Circuit adopted in a similar case, who should bear the burden of this mistake? Should the burden the bear by the -- borne by the employer who made the mistake or the two innocent employees who did nothing more than exercise a right which Congress said they had. And they had no way of avoiding the consequences of the mistake other than giving up their statutory right in the normal course of events as this Court knows, in industrial disputes, rumors fly. Now, these people have no way of avoiding the consequence of that mistake and our suggestion is that in weighing these countervailing interests, we feel the onus should rather fall upon even this good faith employer who made the mistake rather than on the innocent victims of the mistake who were doing no more than exercising the statutory right that's --
Speaker: You say that it's an accommodation that the Board is within the reasonable powers of the Court.
Arnold Ordman: Precisely.
Speaker: From that argument, I understand.
Arnold Ordman: This is not, as I say, is not a question of blame or censure. This the position the Fourth Circuit took on Industrial Cotton that the Third Circuit took in Cusano and both those cases, the employees, one was a strike situation, one was not a strike situation, just a protected activity as in this case. In both those cases, the courts found as the Board had found that the employees were engaged in protected activity but the employer thought they were doing, engaged in misconduct for which they could have been fired.
William J. Brennan, Jr.: But just this -- I understand correctly Mr. Ordman. The finding that was made was that in fact the threat has not been made.
Arnold Ordman: The finding was that the threat had not been made and the evidence was uncontradicted and the company made no effort even to prove that it had been made.
William J. Brennan, Jr.: And that it's in that -- it's in that setting that the Board made the accommodation between the interests that you suggest.
Arnold Ordman: That is correct.
William J. Brennan, Jr.: But did I understand you to say, had the finding been otherwise, had the finding been that indeed the threat was made, then the accommodation would have resulted in -- for the employer?
Arnold Ordman: In the context of this case, a threat to dynamite the plant, I think we can fairly assume that such a threat been made, the Board would have weighed the scale in the other direction. The safety of the employer's operation would more than accommodating as against the statutory right of the employees to organize.
Earl Warren: Is there any evidence at all to show the foundation or the basis for -- for good faith of the employer in -- in the --
Arnold Ordman: The only evidence was and the only evidence in the case was the report that they received from this employee named Pate who says these two people came to him --
Earl Warren: Who said what?
Arnold Ordman: Who said that these two employees had come to him to solicit his membership and that in the course of that solicitation, they had made this threat and he gave them a sworn affidavit. Now, at the hearing, the evidence as to the threat itself, the evidence was uncontradicted. Harmon testified that he did come to Pate's home to solicit his membership (Voice Overlap) at Pate's request. But he denied that he had threatened him or in any way. Davis testified that while he was soliciting for membership too, he never even came to Pate's house.Pate incidentally was present at the Board hearing but nobody called him as a witness. And I think the company also points to the fact that innocent employees who would receive the kind of letter of discharge saying that they have threatened to -- threatened to blow up the plant then innocent employees would have responded to this letter with a denial. The record shows the --
William J. Brennan, Jr.: Was the employer represented at the hearing?
Arnold Ordman: The employer was represented in the hearing.
William J. Brennan, Jr.: By counsel?
Arnold Ordman: By counsel.
William J. Brennan, Jr.: And Pate was there and was not called?
Arnold Ordman: Pate was there and was not called. Incidentally, the general counsel of the Board did not call him either. But in this event, it shows incidentally these people did not. The respondent points out that these two individuals received a letter saying they threatened to blow up the plant did not respond to the letter and seeks to rely upon this because innocent people would. The record is clear incidentally, before these two employees received this letter saying they threatened to blow up the plant, they had already heard rumors about this accusation. And as a matter of fact they had already talked to a government -- to a Board investigator who was investigating unfair labor practice charges connected with the earlier layoff and he had asked them about this. They have denied the story and as they testified at the hearing, when asked about answering the letter, they said in effect, “You know we told the government investigator about this and we sort of felt that we ought to leave this to the government. We didn't think we ought to do anything further.” The evidence, Mr. Chief Justice was solely the oral report by Pate, where the company relied on in the sworn affidavit which they got 12 days later on the basis of which two weeks later, they sent the letters of discharge. Now, as I say Cusano and we feel that we can rely surely on Section 1, the protection of the statute from the weight of these countervailing interests and Section 8 (a) (1) covers this. We don't think we have to reach Section 8 (a) (3). The respondent places its entire case and I think the court below on the lack of motivation. Motivation is more typical. It's the typical thing in an 8 (a) (3) case but we suggest that this Court has in a number of cases not found it necessary to find specific proof of anti-union motivation even in 8 (a) (3) cases. Now, Cusano and Industrial Cotton, the two cases upon which we rely heavily, this Court has several times cited those cases on the proposition that's of specific proof of a discriminatory motivation is not required, necessarily required, for a Section 8 (a) (3) finding I have referenced to Republic itself to gain news which this Court -- which this Court decided together with Radio Officers and to a recent case of Erie Resistor. I believe this Court has in effect held as the Board has held that where there is a -- where the discharges or other discrimination arise out of unnecessary connection with a protected labor activity that a sufficient nexus has been established to justify a finding of Section 8 (a) (3). So I would conclude by saying, we rely on I think 8 (a) (1) of the statutory guaranty as a complete substantiation of our case. We think 8 (a) (3) has also been violated and we ask for reversal of the judgment below.
Earl Warren: Mr. Phillips.
Erle Phillips: Mr. Chief Justice, may it please the Court, I think there is a real good reason, Mr. Justice Brennan why the Board in this case didn't seek review of anything except the good faith fact. This -- this is somewhat unusual case. The Trial Examiner, Mr. Wheatley completely vindicated the company and recommended dismissal of the complaint in its entirety. Curiously enough, Mr. Wheatley is also the Trial Examiner and tried Cusano, Industrial Cotton and Rubin Brothers, the three main cases in this area of a good faith defense. This is the same man. He tried the other three cases and found that the good faith belief was not sufficient. But in this case, he heard the whole case and recommended that the complaint be dismissed. I think under this Court's rule in Universal Camera, the lower court certainly was entitled to consider not only the Board's finding which I think was wrong in reversing the Trial Examiner but in -- and to consider the Trial Examiner's report, he had the witnesses before him, he made certain findings. He for instance did not make a finding that the threats never were made. He didn't have to go that far because he found there was no violation. It's an interesting question too why Pate was not called. I didn't try the case, I don't know. I know a lawyer in my office tried it. We tried the case on the theory of Rubin Brothers so it didn't make any difference whether Pate had told or whether he had been threatened about it. That's what we were told. But this cuts two weights as counsel for the Board, general --distinguished General Counsel has said, the Board didn't call him either. General Counsel didn't call him. The man was sitting there. No one called him. Now, an advantage to the Court and I know of nothing to do but apologize, there's a serious mistake in our brief on page 15. We quote Cusano as being a case involving the discharge of a striker. That's incorrect. It was not. I certainly must apologize. I will distinguish the case however. Now as I think it's clear at this point, remember one question properly I submit before the Court and that is whether it's an unfair labor practice for an employer to discharge an employee who is engaged in solicitation for union membership. We call them mistaken but good faith belief that the employees threatened to dynamite the plant during the course of this union solicitation. I think the counsel for petitioner has made a fair statement of the facts with the additions I made. One, if the Trial Examiner recommended complete dismissal and found no violation and this with an experienced Trial Examiner who heard the other good faith belief cases. Secondly, this --
Byron R. White: Well, the Trial Examiner found there was a good faith.
Erle Phillips: He didn't have to reach that Mr. Justice White. He found there was no violation whatsoever. He said assuming arguendo that -- that the threats were not made. I don't think he said. I don't think Rubin Bro -- Brothers applies. I don't think I have to reach Rubin Brothers. I just don't think it's a violation here at all and recommended dismissal in time. Secondly, in that same connection, this of course is a case in which there is absolutely no other evidence of any union motivation or any union activity. There was no independent 8 (a) (1) activity alleged in the complaint. There were no acts of surveillance. No acts of intimidation, no threats. As a matter of fact, this employer probably demonstrated a lot more restraint than some others would have because --
Byron R. White: The Board itself found both things if there was -- a) there was not good faith, a good faith belief and even if -- even if there was -- there is still a violation.
Erle Phillips: Yes sir.
Byron R. White: Both things they have to do.
Erle Phillips: Yes sir.
Byron R. White: And the Court of Appeals rejected both?
Erle Phillips: Well I think, initially, the Board found that the threats have not been made and that therefore the Rubin Brothers, Board case were not applicable and therefore it found a violation one as to the layoff of three man and then two, as to the subsequent discharge while on layoff of the two men.
Byron R. White: Yes, but they also held that even if there was, did they also hold that even if there was a good faith belief --
Erle Phillips: They held that if there was a good faith belief that it would not avail the employer because it affirmatively was proven by General Counsel that the good faith belief was mistaken.
Byron R. White: But they all -- but they did find it on the facts that there was not a good faith.
Erle Phillips: Yes sir, yes sir, contrary to the (Voice Overlap).
Byron R. White: The Court of Appeals -- do you think that the Court of Appeals rejected both of their claims?
Erle Phillips: No sir. The Court of Appeals as I read the opinion, said, recognizing the limitation on our right to review as set forth in Universal Camera, we accept the Board's findings with respect to the discriminatory layoff. But with respect to the discharge, we -- we disagree with the Board and we continue to follow Rubin Brothers and which we say essentially, this is the Fifth Circuit that a good faith belief is a -- is sufficient.
Byron R. White: Yes, but the Board did also found -- the Board did found that there was not a good faith belief on the part of the employer, that this was a pretext.
Erle Phillips: The court disagreed with this, the lower court.
Byron R. White: And the Court of Appeals disagreed with that point too.
Erle Phillips: Yes. Yes, they found that there was a good faith.
Byron R. White: It had to -- I guess it gets the other one.
Erle Phillips: Well, I think the answer is that there was no evidence whatsoever of the lack of good faith belief. Now, the Board has argued in this belief and as argued here that this employee didn't do enough. I submit what more can the employer do. There are only three people involved, the man who was threatened and the two men who threatened. We got an affidavit from the man who was threatened. He reported first. We interviewed him. We got his affidavit. We can't do anymore with him. We can give him a lie detector test maybe but that is not very worthwhile, it won't stand up. And now second, the only other thing we can do I submit is to go to the two people that, who we believe, who have threatened to dynamite the plant. We say, “Did you threaten to dynamite the plant?” The man said, “No.” I think he'd say no. I don't believe he'd admit it. I submit further, have we done that? Have we gone through these men and interrogated them, we'd have additional unfair labor practice charges based on interference. We -- in this context, I'm not sure that we could have gotten by with interviewing these two people who we believe had threatened to dynamite the plant. But this is the limit of the investigation. We could have reported to the police. I'm not sure that the police would've done much at this level. This is always the real problem in labor practice and labor cases. You've got a threat to dynamite. It's hard sometimes to get any relief.
Arthur J. Goldberg: I want to ask you a question. (Inaudible) good faith.
Erle Phillips: Right.
Arthur J. Goldberg: (Inaudible)
Erle Phillips: I won't belabor it, Mr. Justice Goldberg. Except I think the brief here has gone beyond and the argument does emanate that maybe we don't have good faith. But the purposes of --
Arthur J. Goldberg: But that is to argue quite candidly.
Erle Phillips: Right.
Arthur J. Goldberg: That they're arresting and in fact assuming your good faith, the Board still had the right under the statute to --
Erle Phillips: Well --
Earl Warren: I'd be interested to know why Pate was there but was not called to substantiate the good faith.
Erle Phillips: Well, the lawyer that tried the case, Mr. Chief Justice tried it on the theory of Rubins Brothers -- Rubin Brothers which is that a good faith belief is a defense and I think he felt it was unnecessary to call Pate -- to make out our defense and while the General Counsel didn't call him in, I don't know.
William J. Brennan, Jr.: What you're saying Mr. Phillips is Rubin Brothers as you applied it or as -- and as you think the examiner applied it holds that even if Pate was not telling the truth about the threat, if you were -- honestly believe he did, that's a sufficient offense.
Erle Phillips: Well, Mr. Justice Brennan, this -- the court really -- when I speak of Rubin Brothers here, I'm speaking of the Fifth Circuit decision.
William J. Brennan, Jr.: Yes.
Erle Phillips: Now, the Board called Rubin Brothers as the same which the Circuit would not enforce --
William J. Brennan, Jr.: Well, whosever decision is, --
Erle Phillips: Right.
William J. Brennan, Jr.: -- is that the approach?
Erle Phillips: Yes sir, that's the Circuit. That's the Fifth Circuit approach. Now, I think -- I think this with respect to the 8 (a) (3) violation. I will focus, if I may a little bit about that first because again the Board never brought up this 8 (a) (1) theory in the Circuit Court. First time we ran into this was in this Court. I don't really think they mean this unless they are asking this Court to go so far as to say any -- any act of discharge is a violation of 8 (a) (1). And I don't believe they really want to say that because if they did, I submit this Court wasted a lot of time in for instance Erie Resistor in talking about lack of motivation and dispensability of motivation because if the Board is correct now, you could have just said, “Well, it's an 8 (a) (1) violation. The remedy is the same so let's forget about 8 (a) (3).” But in general, this Court has held that motive is an essential element of a violation of 8 (a) (3). This Court has -- has said on many occasions that employees can be fired for no reason. The Act permits a discharge for any reason other than union activity or agitation for collective bargaining with employees. Now, over the years, there have been some exceptions ground out. Now, I submit these exceptions are fairly narrow. I think you can sum them up this way that you can dispense with specific evidence of intent, in a Section 8 (a) (3) situation, where you've got two factors. One that the discrimination itself is based on the criterion of union membership or some phase of union activity, and then two, that the discouragement of union membership is natural and foreseeable. And Mr. Justice Black as I recall joined by Mr. Justice -- Mr. Justice Douglas dissented in the Radio Officers case on this point and said you have to require motivation in every 8 (a) (3) situation but the majority held otherwise. Now, the case is that if one analyze them, let's take Erie Resistor which is an easy one, the superseniority case. Here, the act of discrimination was clearly based on union membership or a lack of union membership. In other words, if you were a non-union and come to work, you get superseniority; two if you lead the strike, you get superseniority. Clearly, this is a discrimination based on union membership. Then the second aspect quite obviously if superseniority is law, it destroys the probability of union in the particular plant involved. So this -- this case clearly meant both of these tests. One that the discrimination itself is based on union membership with some aspect of it and two, that there'll be clearly foreseeable encouragement or discouragement. Well, your Radio Officer's case is the same thing. In Radio Officers, the radio officer couldn't get a job because he didn't clear it to the union. Once again, the discrimination was based on his failure to observe union rules. Clearly, the effect there was to drive people in the union so you have both motives again tested. Gehner, the same thing as you -- as the Court will recall, this is a case of the called union and the company and the union negotiate in the contract which provided for an increase for union members but no increase for the non-union members. Once again, the discrimination, no fee increase, the basis for it, non -- lack of membership in the union. And once again, the other factor of emphasizing or encouraging union membership is present. So I think that in all of these cases that this Court has decided and Republic is the same. Republic and (Inaudible) are the same thing. In all of these cases, the discrimination on the one hand has been based on some aspects of union membership while on the other hand there has certainly been a clearly foreseeable encouragement or discouragement of membership. Now, the -- this case is here, I assume, because of the conflict between the Circuits and I'm not sure that this is really a conflict. The first case is Industrial Cotton Mills, N.L.R.B. versus Industrial Cotton Mills. In that case, there was an economic striker who was refused reinstatement when he -- when the company had a good faith but mistaken belief that he had thrown tax in the street, only if he'd thrown tax maybe he'd thrown matches. Now again, in the Radio Officer, Mr. Justice Black distinguish this case. He says that none of this case is important here since he thinks the Board made findings of the employer's purpose. But aside from that statement, I submit to the Court that Industrial Cotton Mills is distinguishable because it is a strike situation and because of the provisions of Section 2 point -- Section 2 (3) of the Act and Section 13 of the Act. Now, the Congress in its wisdom has -- has extended I think more protections to the right to strike than it has to other situations. And the Court in deciding this -- the Court of Appeals in deciding Industrial Cotton, made reference to these sections of the Act. First, Section 13 says, nothing in this Act except this specifically provided for herein shall be construed so as to interfere with or impede or diminish in any way the right to strike or to affect the limitations or qualifications on that right. When it -- if the Court will recognize that law itself gives extended protection to a striker, to an un -- unreplaced economic striker for example then it follows that such a -- such a person as a matter of law is entitled to have his job back unless in fact he has done something wrong. Mistaken belief then will not prevail even in good faith in the case of a strike. But this is -- this is because of the specific provisions of the law, protecting the right to strike. Now, Cusano is a case in which there was not a strike. I think again that Cusano can be distinguished on this basis. This is a case in which the employer fired a particular man who was the leader of the union because he came back from a meeting with the Board, with the employer for the purpose of arranging consent election and made a report to the union committee. Now this is what the Board found that he was fired for doing. They didn't -- the Board didn't actually find that this man was fired for misstating something although there was an argument as to what he did say. The employer said that the man came back and misstated profits that he used to figure over half a million as being profits when in reality that figure had reference to the sales and purchases of the company. But the Board in its finding made a clear statement that the facts as established that the respondent discharged Palladino because of his activities on behalf of the union in reporting to the shop committee what had occurred at the Board conference. I think if -- if -- if this is realized that -- that the Board affirmed by the -- the Court of Appeals found that the man was fired for his protected activity in making the report to the committee, then again, the case is distinguishable from the present case which involves a good faith but mistaken belief as to wrongful activity. Now, of course if -- the -- if the Court here should disagree with this then we would have to recognize that Cusano is simply in conflict with this. There's one other case on which Board relies that's Cambria Clay, another Circuit Court case and of course that was a strike situation and we put that in the same category as Industrial Cotton Mills. Now, the Board -- the Board claims that on many occasions, Rubin has been followed. I've tried to read the cases cited in the Board brief and others and in general those cases are distinguishable. One, that strike situations were involved. Two, that when you really read the decision, the Board made a finding of bad faith not good faith. And so it was never necessary to reach the question of a good faith but mistaken belief. For instance in (Inaudible) one case is cited by the Board in its brief that was a strike situation. Patterson-Sargent Company was a strike situation. This doctrine hasn't been widespread. Now, with -- with respect to Section 8 (a) (3) then, I submit to the Court that the decision of the lower court was correct and proper. We've shown on the one hand that in the decisions of this Court where motivation has been dispensed with, that there -- there had been -- there had been a narrow exception and these are situation where the discrimination itself was based on union membership and union activity. You had clearly foreseeable discouragement or encouragement of union membership or union activity. I've tried to show the Court here that second case Industrial Cotton is not in -- in conflict with the decision of the lower court because it was a strike situation and you've got a different rule applicable to a strike situation. Cusano is distinguishable because it involved a discharge for engagement in protected activity. The man was fired because he made a report to the union committee. Now, in this case, if the rule is still to be that an employer has a right to fire an employee for no reason, for an arbitrary reason, an unreasonable reason, any reason of an engagement in protected activity, then it has to follow that the employer has the right to fire an employee because of the mistaken but good faith belief that he has done something wrong, in this case, a threat to dynamite the plant which under federal law is a felony. If you can fire the man for nothing, no reason, then does it have to follow that he can fire the man for a good faith but mistaken belief as to some wrongful conduct? Now, the Board -- the Board seems to say, well, maybe so but in this situation, the man was engaged or the men were engaged in protected activity and it's true that these fellows where engaged in solicitation of membership. But in soliciting for membership, these two fellows did not have to make any threat to dynamite the plant. And I think therefore that that this is a separable type of activity. On the one hand, they were soliciting for membership, this is protected. We couldn't fire them for that, we didn't fire them for that and again --
Arthur J. Goldberg: We're going to assume that this is a threat.
Erle Phillips: Well again, Mr. Justice Goldberg, it doesn't make any difference. It gets back to the proposition if we can fire him for no reason. We just don't like them. We don't like what it looks, some arbitrary reason. The foreman gets mad at me. If we had this right still then it probably can fire him because of the good faith but mistaken belief. What I'm saying is that this is distinguishable from the situation in Cusano because there, all you have was the engagement of protected activity. That's what they were fired for. That's what these men were fired for here. Well, you really two activities. On the one hand these two fellows where trying to get somebody to join the union, soliciting membership. But on the other hand, we believe in good faith that they were threatened to blow up our plant. And this again, Mr. Justice Harlan raise a question, what do you do? How long do you wait? In Florida, in the last couple of years, there's been a good lead of dynamite that was going on next with the F.E.C. strike. So it's not -- it's not something you can pass off by saying this is ridiculous. You don't ever have this problem. You do have this problem, you do have dynamites. So if you think you can accept the proposition that on the one hand, cases of this, which case is decided by this Court such as Erie Resistor and the others are distinguishable. Two, that Industrial Cotton Mills is -- is distinguishable because it is a strike situation entitled to special consideration by virtue of Section 2, 4 and 3 and Section 13 of the Act and that Cusano is different and the ground for discharge was for the concerted activity. While here, the discharge was made because of a good faith but mistaken belief that while engaging into protected activity, these men made a threat which certainly true, we all admit would have been ground for discharge.
Hugo L. Black: Mr. Phillips, what's the facts that effect of that -- what the Board has done here to order them not to repeat a violation. Isn't that one of them?
Erle Phillips: Yes sir.
Hugo L. Black: The other is to make them hold?
Erle Phillips: Yes sir.
Hugo L. Black: And as I understand it, it boils down to this controversy that the company had a right that this could be upset. They shouldn't be paid because the company had a belief that they intended to dynamite although they were wrong. I think it's just an ordinary contract of employment employed for a year except to be discharged for violation of law, whatever this was, would that be a defense for the company that they have a good faith belief? That the -- that they really had intended to dynamite it?
Erle Phillips: I don't think it would have if there had been contract for a year Mr. Justice Black but there was not a contract for a year.
Hugo L. Black: There was what?
Erle Phillips: There was not a contract for a year.
Hugo L. Black: No, there was not but they were discharged without -- on the grounds according to this, according to your statement that was wrong if they hadn't done anything and they've lost their jobs.
Erle Phillips: This is what -- this is what this piece gets down to of course. I submit that if the man may be discharged by his employer without having any reason which this Court has said time and time again can happen. We didn't have to have injuries in the crime. Then we -- we -- we -- we are entitled to find if we have a good faith belief that he is engaged in wrongful activity.
William J. Brennan, Jr.: Except that you also have the finding that indeed he was -- they were discharged for union activities.
Erle Phillips: Well --
William J. Brennan, Jr.: -- and the -- and -- and as I gather, the issue really is whether you may escape the ordinary consequence of a discharge for union activity namely, reinstatement, why the fact that you had a good faith belief said indeed they've certainly violated --
Erle Phillips: Mr. Justice Brennan, there's nothing in the opinion of the court below which indicates that we -- we violated Section 8 (a) (3) and indeed this is -- this is the part of the problem. There's no finding here of any motivation --
William J. Brennan, Jr.: Well, I'm getting back --
Erle Phillips: Right.
William J. Brennan, Jr.: -- the Board's view is that there was a finding of an unfair labor practice --
Erle Phillips: Yes sir.
William J. Brennan, Jr.: -- ordinarily to be redressed by an order of reinstatement unless in this case, the fact that you had a good faith belief that they threatened to dynamite the plant absolved you from the ordinary order of that issue, got it?
Erle Phillips: Yes, but I think -- I recognize that this Court can do most anything that it wishes with a case such as this, but with --
William J. Brennan, Jr.: No, I -- I had to disagree with that.
Erle Phillips: No I'm talking first --
William J. Brennan, Jr.: I think our powers of review as I tried to suggest to Mr. Ordman are quite limited on this kind of situation.
Erle Phillips: Well, I think the Board could have petitioned this Court to review the whole case below.
William J. Brennan, Jr.: Yes.
Erle Phillips: But it did not and under your established practice, as I understand it, your review is going to be limited to the question raised by the petition for certiorari and the Board specifically on page 6 of the petition for that certiorari, I think had no -- I mean Footnote 6, we waived, we're not questioning the right.
Byron R. White: This is to an 8 (a) (1) file?
Erle Phillips: No sir, this reduces it to the question again of, is a good faith but mistaken belief sufficient to justify the discharge? The remedy Mr. Justice White is the same.
Byron R. White: Let's assume there isn't -- it isn't. Let's assume that a good faith belief is not --
Erle Phillips: Alright sir.
Byron R. White: -- enough to insulate the employer from what, an 8 (a) (1) violation or an 8 (a) (3)?
Erle Phillips: Well I -- I think -- I think this is -- this is probably a question that the Court must decide.
Byron R. White: Doesn't the -- doesn't the -- doesn't the Board -- isn't the Board really saying that since we've given up the good faith argument, that the only thing that can be left is an 8 (a) (1)?
Erle Phillips: Oh, no sir. No sir. The entire argument in the court below was addressed to an 8 (a) (3) violation. In this Court, they are saying, “Well, it's either a violation of 8 (a) (1) or 8 (a) (3).”
Byron R. White: But no, I realize the court below because there they were arguing their good -- their bad faith thing too. But the -- but the court rejected both grounds and the Board now has abandoned -- has abandoned the argument that the employer acted in bad faith.
Erle Phillips: Right.
Byron R. White: Now, does that mean that they are abandoning the argument about that -- that that it was an 8 (a) (3)?
Erle Phillips: As I understand the argument from the brief and from what General Counsel stated, they still argue on both grounds. It's just a little easier maybe if they can make an 8 (a) (1) stand up than 8 (a) (3) because there's been no finding here --
Byron R. White: Because a critical fact in -- in finding the violation even though there's good faith is that the active place when the employee was engaged in protected activity.
Erle Phillips: I'm not sure that I followed you but the problem from -- the problem with the Board's case on an 8 (a) (3) is that they've got to prove motivation which they haven't proven. Now, from the standpoint of an 8 (a) (1), I think it's probably easy to prove an 8 (a) (1) because I don't think you have to prove motivation, you don't have to think -- I don't think this Court needs tell you. You don't have to prove that the interference was successful or unsuccessful interference.
Byron R. White: Well, does the Board usually grant the reinstatement of back pays for an 8 (a) (1) when there's no 8 (a) (3)?
Erle Phillips: Yes sir. Yes, the remedy is the same as I -- within the Board's discretion. Now, there's whole lot of cases. They fall in two categories, the supervisory discharges. They can't be 8 (a) (3) because the supervisor is not an employee, so this is an 8 (a) (1). The remedy is to reinstate with back pay. Then there are another whole lot of cases where discharge not found to be a violation of 8 (a) (3) is found to be a violation of 8 (a) (1). This is where there is usually concerted activity but no -- no necessary union activity. No union in the picture. Men walk off in concert but you can't prove the effect of encouragement or discouragement. You can't prove bad motivation but yet they did act in concert. I can -- I can see this a little -- I don't think this problem is -- is in conflict with my problem here with this case because there, if three men walk off the job in concert and are fired for that. That is an 8 (a) (1), that's interference I think.
William J. Brennan, Jr.: You're not suggesting, are you, that the Board's position is that without a finding of an 8 (a) (1) or an 8 (a) (3), it has to be one of them?
Erle Phillips: Yes sir.
William J. Brennan, Jr.: Are you suggesting the Board's position is that they may nevertheless order reinstatement merely because they find that the -- there was a mistaken although good faith beliefs that these fellows have threatened to dynamite?
Erle Phillips: That's my understanding of the Board's position.
William J. Brennan, Jr.: Really?
Erle Phillips: Yes sir.
William J. Brennan, Jr.: Well, I didn't get that from Mr. Ordman but we're going to hear from him again. I thought he tagged this definitely to an unfair labor practice violation which is I heard him, he thought was either 8 (a) (1) or 8 (a) (3) and he has to have one or the other and then it is that comes in the accommodation between employer and employees just with --
Erle Phillips: Well, as I understand the Board's position, it's reinstatement either way with back pay.
William J. Brennan, Jr.: But predicated upon an 8 (a) (1) or 8 (a) (3) findings?
Erle Phillips: Yes sir. There's got to be --
William J. Brennan, Jr.: It has to be one or the other.
Erle Phillips: Well, yes sir.
William J. Brennan, Jr.: Oh, yes.
Erle Phillips: There must be finding. Now, to sum up on 8 (a) (1), I recognize that motivation is immaterial. I recognize you don't have to show that the interference is successful, but in all these cases, the things I just mentioned a moment ago have been present either supervisory status or discharge for concerted activity which was short and all of this, I think the case is of the same acquiesce and the Court affirm the lower court.
Earl Warren: Very well.
Arnold Ordman: I will just take one moment.
Earl Warren: Mr. Ordman.
Arnold Ordman: I'll just take one moment, if the Court please to clarify exactly what the Board's position here is. The Board position here both in the cases we have focused in here in the Supreme Court is precisely this. These employees were engaged in an activity protected by Section 7 of the Act, a right guaranteed to them by Section 7 of the Act. That right they were deprived of, they were discharged for exercising that right because the employer had a mistaken good faith belief that they were doing something that was bad. But we -- our case is pitched on the proposition that these people were deprived of a right guaranteed them by Section 7 of the Act because --
William J. Brennan, Jr.: And you have to find that before --
Arnold Ordman: And we found -- the Board found that to be a violation, I beg your pardon, of 8 (a) (1) and also of 8 (a) (3) and for the lack of specific proof of anti-union motivation, we submit that that defect, if it is a defect, it's the same sort of defect which the Board didn't, or which the Court, the Supreme Court found no handicap either on Radio Officers or in Erie Resistor or in Republic. Thank you, Your Honor.
Earl Warren: We'll recess now.