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

2. According to the company, why was Santillo fired?

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?

Prior to his discharge, Sam Santillo was a bus driver for Transportation Management Corp. On March 19, 1979, Santillo talked to officials of the Teamster’s 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 that evening, Patterson talked to Ed West, who was also a bus driver for Transportation Management. 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 alleging that Santillo was discharged because of his union activities in distributing authorization cards to fellow employees. The administrative law judge (ALJ) determined that Patterson’s disapproval of Santillo’s practice of leaving his keys in the bus was clearly a pretext because this practice 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 taking coffee breaks during work hours was normal practice and that the company tolerated the practice unless the breaks interfered with the driver’s 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. The U.S. Court of Appeals for the First Circuit refused to enforce the Board’s order, and an appeal was taken to the Supreme Court.

JUDICIAL OPINION

WHITE, J.… 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.… 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.… ………………