The opinion
PARKINSON, Circuit Judge
(dissenting).
In this case the Trial Examiner, after hearing all the evidence, specifically and definitely found that the employees were discharged for valid cause and that the evidence did not even justify an inference that the discharge was motivated by union or concerted activities; that an isolated statement of a foreman Hughes that union nonmembership was a condition of employment did not represent the employer’s policy and he had diseon *103 tinued making any such statement long prior to October 15, 1956, the date that the unfair labor charge was filed; that a rule adopted by the employer on September 19, 1956 prohibiting its employees from plant distribution of literature either for or against a union was revoked within five days thereafter and, therefore, was not in effect for some time prior to October 15, 1956; and on the basis of such findings concluded the entire complaint against the employer should be dismissed.
Thereafter the National Labor Relations Board, with two of its five members dissenting, disagreed with the Trial Examiner, ordered the discharged employees reinstated with no loss of pay, and ordered the employer to cease and desist from conduct violative of § 8(a) (1).
At the risk of being labeled prosaic I still believe that in our system of free enterprise an employer has the right to conduct and manage his own business as he believes to be proper and no enactment of Congress has ever interfered with the normal exercise of the right of an employer to select or discharge his employees. National Labor Relations Board v. Local Union No. 1229, International Brotherhood of Electrical Workers, 1953, 346 U.S. 464, 474 , 74 S.Ct. 172 , 98 L.Ed. 195 . The National Labor Relations Act proscribes the exercise of the right to hire and fire only when it is employed as a discriminatory device. N. L. R. B. v. Wagner Iron Works, etc., 7 Cir., 1955, 220 F.2d 126 , 133; N. L. R. B. v. Milwaukee Elec. Tool Corp., 7 Cir., 1956, 237 F.2d 75, 78 . However, an unlawful purpose is not lightly to be inferred and if it would appear that the employer was motivated by a dual reason, the record taken as a whole must present substantial evidence pointing clearly toward the unlawful motive before it can be said that the discharge was discriminatory. N. L. R. B. v. McGahey, 5 Cir., 1956, 233 F.2d 406 , 413. It has been held that “[wjhere the employer has proper cause for discharging an employee, the Board may not rely on scant evidence and repeated inferences to make a finding that places the Board in the position of substituting its own ideas of business management for those of the employer”, N. L. R. B. v. Blue Bell, Inc., 5 Cir., 1955, 219 F.2d 796, 798 , and even where the Board could as reasonably infer an unlawful motive as well as a lawful one, which is far from the case here, the act of management in discharging an employee cannot be set aside as being improperly motivated. N. L. R. B. v. Huber & Huber Motor Exp., 5 Cir., 1955, 223 F.2d 748, 749 .
If the material facts were undisputed and no particular weight attached to the Trial Examiner’s conclusion, as the majority holds and with which I disagree, then that undisputed evidence is that the employees were discharged for just cause. The Trial Examiner found that the five discharged employees had not obtained permission from their foreman to be absent from their work in violation of the employer’s rule. Not only were they absent from their work during working hours but they were in the office of the president in disobedience of their foremen who had ordered them back to their work and thereafter remained in the president’s office in open defiance of their foremen.
Here the Trial Examiner and two members of the Board held that the complaint against the employer should be dismissed in its entirety. Three members of the Board concluded otherwise. This Court being thus faced with the necessity to determine which of these two holdings is correct on the evidence as a whole, under Universal Camera Corp. v. N. L. R. B. 1951, 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 , I am clearly convinced that the Trial Examiner was correct. United States Steel Co., Joliet Coke Works v. N. L. R. B., 7 Cir., 1952, 196 F.2d 459 ; Deepfreeze Appliance Division, Motor Products Corp. v. N. L. R. B., 7 Cir., 1954, 211 F.2d 458 .
I agree with the late Judge Lindley that “the protective mantle of Section 7 is tempered by the employer’s right to exact a day’s work for a day’s pay and *104 to maintain discipline, and does not reach activities which inherently carry with them a tendency toward, or likelihood of, disturbing efficient operation of the employer’s business.” Caterpillar Tractor Co. v. N. L. R. B., 7 Cir., 1956, 230 F.2d 357, 358 .
I do not believe there is any fallacy in the doctrine that an employee is employed for the purpose of working during working hours and no rule of the employer is necessary to prohibit an employee’s absence from his work during working hours without permission of his superior. I cannot subscribe to any principle of law which requires an industrial plant employer to have a rule prohibiting absence from work during working hours as a condition precedent to the discharge of a plant employee who leaves his work on his employer’s time without the permission of his foreman, and not only that but before the rule is enforceable it must be of long standing, and not only that it be of long standing but that it be a formally posted rule.
Nor can I bring myself to a position of presuming that employers in America are guilty of discharging their employees illegally when they have a legal reason for so doing and that the burden is on the employer to prove that he did not discharge for an illegal reason.
In order to uphold and enforce the order here we must hold that the burden was on the employer to prove he discharged without discrimination and presume that the employer acted illegally when' the evidence is positive that the discharges were for a legal cause. That is not the law. 1 Nor is it the law that an order commanding one to cease and desist from doing something which he is not doing at all should be upheld and enforced by this Court.
In my opinion the Trial Examiner and the two dissenting members of the Board were absolutely correct in concluding that the entire complaint against the employer should be dismissed and the order of the three members of the Board is clearly erroneous.
I regret that I am compelled to disagree with the majority but in my considered judgment the order should be set aside.
. The burden is on the Board to prove and not on the employer to disprove prohibited discriminatory motivations in discharging an employee, Indiana Metal Products Corp. v. N.L.R.B., 7 Cir., 1953, 202 F.2d 613, 616 , and if an employee is subject to discharge for legal cause and also engaged in union activities that is a coincidence which does not destroy the just cause for discharge. N.L.R.B. v. Birmingham Publishing Company, 5 Cir., 1959, 262 F.2d 2, 9 .