National Labor Relations Board v. Burnup and Sims, Inc./Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

379 U.S. 21

National Labor Relations Board  v.  Burnup and Sims, Inc.

 Argued: Oct. 15, 1964. --- Decided: Nov 9, 1964

Mr. Justice HARLAN, concurring in part and dissenting in part.

Both the rule adopted by the lower court and that now announced by this Court seem to me unacceptable. On the one hand, it impinges on the rights assured by §§ 7 and 8(a)(1) to hold, as the Court of Appeals did, that the employee must bear the entire brunt of his honest, but mistaken, discharge. On the other hand, it is hardly fair that the employer should be faced with the choice of risking damage to his business or incurring a penalty for taking honest action to thwart it.

Between these two one-way streets lies a middle two-way course: a rule which would require reinstatement of the mistakenly discharged employee and back pay only as of the time that the employer learned, or should have learned, of his mistake, subject, however, to a valid business reason for refusing reinstatement. ^[1] Such a rule gives offense neither to any policy of the statute nor to the dictates of fairness to the employer, and in my opinion represents a reasonable accommodation between the two inflexible points of view evinced by the opinions below and here.

Since I do not believe that this case presents the rare situation in which the Board can ignore motive, ^[2] I would vacate the judgment of the Court of Appeals and remand the case to the Board for further appropriate proceedings in light of what I believe to be the proper rule.

Notes

1. As for example, if a replacement had been hired and the discharged employee unduly delayed in apprising the employer of the mistake.
2. See Local 357, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. National Labor Relations Board, 365 U.S. 667, 677, 81 S.Ct. 835, 840-841, 6 L.Ed.2d 11 (1961) (concurring opinion). Respondent here had a significant business justification-to avoid dynamiting of a silo-for discharging the employees, unlike the situations presented in Allis-Chalmers Mfg. Co. v. National Labor Relations Board, 7 Cir., 162 F.2d 435; Cusano v. National Labor Relations Board, 190 F.2d 898, and National Labor Relations Board v. Industrial Cotton Mills, 208 F.2d 87. See Local 357, Intern. Broth. of Teamsters, supra 365 U.S. at 680, 81 S.Ct. at 842.

In Allis-Chalmers the employer downgraded the status of plant inspectors after they had voted to join a union, and it was apparent that the employer acted only because of the inspectors' membership in the union. There was no business justification for the employer's action except for his feeling that union members should not exercise supervisory powers and the Board was therefore justified in treating this as an unfair labor practice without a specific finding of discriminatory motive.

Cusano involved a mistaken belief by the employer that an employee had made a misstatement about company profits, which might well have been protected campaign 'oratory' even if the employee had made the misstatement. Since the employer could simply have denied the truth of the profit figures, there was no business justification for discharging the employee.

Industrial Cotton Mills presents the closest analogy to the case before us. There an employee was refused reinstatement following a strike for alleged strike misconduct-throwing tacks on the street during a strike-which he did not commit. The Court of Appeals recognized the special congressional concern for the right to strike embodied in §§ 2(3) and 13 of the Act, and held that the employer's lack of antiunion motive was irrelevant. There was also little business justification for punishing the employee after the strike had ended, unlike the fear in this case of future sabotage by the employees.