Board can meet its burden of proving employer knowledge of “concertedness” by “infer[ring] knowledge when that inference is drawn from substantial evidence.”
How later courts described this case
- Board can meet its burden of proving employer knowledge of “concertedness” by “infer[ring] knowledge when that inference is drawn from substantial evidence.”
- On Motion for Clarification
Written by the judges who cited it.
The opinion
NATHANIEL R. JONES, Circuit Judge,
dissenting.
Because I believe the Board’s decision that Hart’s discharge was based upon anti-union animus is supported by substantial evidence, I dissent from the Court’s decision not to enforce all of the Board’s order.
Hart began getting recognition cards signed after the March 6 meeting. He would meet secretly in the home of fellow workers, get their signatures and swear them to secrecy. By March 16, Hart had forwarded to the union 9 authorization cards. Hart was discharged on March 16.
The Board based its finding of discriminatory animus upon the timing of Hart’s discharge; evidence of an anti-union attitude; the small size of the work force; and the shifting basis for discharge. The Company said first, that Hart was fired for not wearing a hat, then because he was late for work, and third, because he was “not working out.” Hart had never been advised that not wearing a hat was a ground for discharge. Further, other employees were often hatless.
The Board has the duty to determine the real reason for discharge of a protected employee. NLRB v. Putnam Tool Co., 290 F.2d 663 (6th Cir. 1961). It has the responsibility to determine if the stated reason for the discharge is a pretext. NLRB v. Murray-Ohio Manufacturing Co., 358 F.2d 948 (6th Cir. 1966). The Board’s findings must be deferred to if they are supported by substantial evidence.
The facts here are sufficient in my opinion to amount to substantial evidence. If we do not permit the Board to infer anti-union animus from these circumstances, we will in essence severely restrict the protection afforded to workers by the Act. No similar restrictions are imposed upon the district court or juries in criminal cases, which require a higher standard of review. Glasser v. United States, 315 U.S. 60 , 62 S.Ct. 457 , 86 L.Ed. 680 (1943). Hart should be reinstated. His failure to wear a hat may be an indictment of some packing plants, but in these circumstances his discharge cannot be reasonably based upon that rationale. Therefore, I dissent from the Court's decision not to enforce all of the Board’s order.