characterizing the employer's burden as an affirmative defense
How later courts described this case
- characterizing the employer's burden as an affirmative defense
- after the employer loses a lawsuit, the inquiry is “whether the employer filed the suit in retaliation for the employee’s exercise of protected rights ...”
- union activist unlawfully discharged six months after unsuccessful union election
Written by the judges who cited it.
The opinion
J. BLAINE ANDERSON, Circuit Judge,
dissenting:
I respectfully dissent. This is a classic case for the application of our deferential and narrow standard and scope of review. The majority recognizes our restrictive role but declines to apply it because they are not “persuaded” by the “facts.” Fact finding and the inference to be drawn are for the Board, not this court. See, e.g., Kall-mann v. NLRB, 640 F.2d 1094, 1098 (9th Cir.1981); Zurn Industries, Inc. v. NLRB, 680 F.2d 683, 693-94 (9th Cir.1982). The Board relied on significant facts not mentioned in the majority opinion, including, but not limited to, Dash’s rather sorry record of rudeness and arrogance.
The interested reader and researcher are directed to the majority and dissenting opinions of the Board members, 273 N.L. R.B. No. 31 (1984), in support of the assertions made in this brief dissent. It is clear that the Board majority accepted an almost undisputed version of facts in reaching its conclusion. The facts so found by the Board are supported by the record and constitute substantial evidence on the record as a whole. In the interests of uniformity, stability and predictability, we must not substitute our judgment just for a preferred result.
We are obligated to deny the petition for review and I would do so.