[Prior to his discharge, Sam Santillo was a bus driver for respondent Transportation Management Corp. On March 19, 1979, Santillo talked to officials of the Teamsters Union about organizing the drivers who worked with him. Over the next four days, Santillo discussed with his fellow drivers the possibility of joining the Teamsters and distributed authorization cards. On the night of March 23, George Patterson, who supervised Santillo and the other drivers, told one of the drivers that he had heard of Santillo's activities. Patterson referred to Santillo as two-faced and promised to get even with him. Later thatevening Patterson talked to Ed West, who was also a bus driver for respondent. Patterson asked, "What's with Sam and the union?"

Patterson said that he took Santillo's actions personally, recounted several favors he had done for Santillo, and added that he would remember Santillo's activities when Santillo again asked for a favor. On Monday, March 26, Santillo was discharged. Patterson told Santillo that he was being fired for leaving his keys in the bus and taking unauthorized breaks. Santillo filed charges with the Board, and the General Counsel issued a complaint contending that Santillo was discharged because of his union activities in distributing authorization cards to fellow employees.

The administrative law judge determined that Patterson's disapproval of Santillo's practice of leaving his keys in the bus was clearly a pretext and that the practice of leaving keys in buses was commonplace among company employees. The company identified two types of unauthorized breaks: coffee breaks and stops at home. With respect to both coffee breaks and stopping at home, the ALJ found that Santillo was never cautioned or admonished about such behavior and that the employer had not followed its customary practice of issuing three written warnings before discharging a driver.

The ALJ also found that the taking of coffee breaks during work hours was normal practice and that the company tolerated the practice unless the breaks interfered with the driver's performance of his duties. The ALJ found that the company had never taken any adverse personnel action against an employee because of such behavior. The Board adopted the ALJ's findings and expressly applied its Wright Line decision. The First Circuit Court of Appeals refused to enforce the Board's order. The Supreme Court granted certiorari.] WHITE, J.... The Court of Appeals for the First Circuit refused enforcement of the Wright Line decision because in its view it was error to place the burden on the employer to prove that the discharge would have occurred had the forbidden motive not been present.

The General Counsel, the Court of Appeals held, had the burden of showing not only that a forbidden motivation contributed to the discharge but also that the discharge would not have taken place independently of the protected conduct of the employee. The Court of Appeals was quite correct, and the Board does not disagree, that throughout the proceedings, the General Counsel carries the burden of proving the elements of an unfair labor practice. Section 10(c) of the Act, 29 U.S.C. § 160(c), expressly directs that violations may be adjudicated only "upon the preponderance of the testimony" taken by the Board. The Board's rules also state "the Board's attorney has the burden of pro[ving] violations of Section 8." 29 CFR § 101.10(b).

We are quite sure, however, that the Court of Appeals erred in holding that § 10(c) forbids placing the burden on the employer to prove that absent the improper motivation he would have acted in the same manner for wholly legitimate reasons.... We assume that the Board could reasonably have construed the Act in the manner insisted on by the Court of Appeals.... The Board has instead chosen to recognize, as it insists it has done for many years, what it designates as an affirmative defense that the employer has the burden of sustaining.

We are unprepared to hold that this is an impermissible construction of the Act.... "[T]he Board's construction here, while it may not be required by the Act, is at least permissible under it...," and in these circumstances its position is entitled to deference.... The Board's allocation of the burden of proof is clearly reasonable in this context, for the reason stated in NLRB v. Remington Rand, 94 F.2d 862 (1938), a case on which the Board relied when it began taking the position that the burden of persuasion could be shifted. The employer is a wrongdoer;

he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing.... The Board was justified in this case in concluding that Santillo would not have been discharged had the employer not considered his efforts to establish a union.

At least two of the transgressions that purportedly would have in any event prompted Santillo's discharge were commonplace, and yet no transgressor had ever before received any kind of discipline. Moreover, the employer departed from its usual practice in dealing with rules infractions; indeed, not only did the employer not warn Santillo that his actions would result in being subjected to discipline, it never even expressed its disapproval of his conduct. In addition, Patterson, the person who made the initial decision to discharge Santillo, was obviously upset with Santillo for engaging in such protected activity. It is thus clear that theBoard's finding that Santillo would not have been fired if the employer had not had an anti-union animus was "supported by substantial evidence on the record considered as a whole," 29 U.S.C. § 160(f). Accordingly the judgment is Reversed.

Case Questions

1. According to the General Counsel's position, why was Santillo fired by his employer?

2. Why was Santillo fired, according to the company?

3. Did the Supreme Court find that the Board was justified in concluding that Santillo would not have been discharged had the employer not considered his efforts to establish a union?

4. Did the Supreme Court agree with the court of appeals that Section 10(c) of the Act forbids placing the burden on the employer to prove that, absent the improper motivation, the employer would have acted in the same manner for wholly legitimate reasons?