employer may show as an affirmative defense to that the discharge would have occurred even in the absence of the protected activity
How later courts described this case
- employer may show as an affirmative defense to that the discharge would have occurred even in the absence of the protected activity
- “the factual findmgs of the ALJ are to be examined for ‘reasonableness’ ... and credibility determinations must be accepted unless it is clear there is no rational basis for them.”
- "[ALJ's] credibility determinations must be accepted unless it is clear that there is no rational basis for them."
Written by the judges who cited it.
The opinion
WELLFORD, Circuit Judge
(concurring in part and dissenting in part).
I am persuaded with some reservations that the Board in this case has made out a case that the five waitresses were terminated in violation of §§ 8(a)(3) and (1) of the Act in question, although it should be noted that in each instance of controversy the ALJ has credited the testimony of union witnesses and discredited company witnesses, even those who are no longer in the employ of the company and would logically seem to be disinterested. Furthermore, “uncorroborated testimony of an interested charging party does not amount to substantial evidence of an unfair labor practice.” NLRB v. Container Corp. of Am., 649 F.2d 1213, 1216 (6th Cir.1981). See also NLRB v. Elias Bros. Big Boy, 327 F.2d 421 (6th Cir. 1964); NLRB v. Otsego Ski Club, 542 F.2d 18 (6th Cir.1976). There is simply very little, if any, evidence in this record indicating that the company was aware of union activities among the waitresses who refused to report for their shift because of a dispute concerning future work schedules other than uncorroborated testimony of interested charging party witnesses, which itself is somewhat contradictory.
In any event, this is not the “ ‘exceptional’ case[ ]” in which the employer’s conduct is so “ ‘outrageous’ and ‘pervasive’ ” that a bargaining order is indicated. See NLRB v. Gissel Packing Co., 395 U.S. 575, 613 , 89 S.Ct. 1918, 1940 , 23 L.Ed.2d 547 (1969) (quoting NLRB v. S.S. Logan Packing Co., 386 F.2d 562, 570 (4th Cir.1967)). I accordingly dissent from enforcing that type of order in this case.