Having found — apart from the issue of the wage increases — that the Company's conduct did violate § 8(a)(5) and (1) of the Act, it remains for us to determine whether direct bargaining with the Union, as ordered by the Board, is the appropriate remedy here. As stated by this court in the recent decision of N.L.R.B. v. Pembeck Oil Corporation, 404 F.2d 105, 112 (2d Cir. 1968): "It is well established that the Board may properly order an employer found to have committed unfair labor practices to bargain directly with a Union which lost its majority subsequent to the employer's wrongful refusal to bargain with it.
Compare NLRB v. Consolidated Rendering Co., 386 F.2d 699, 704 (2d Cir. 1967), with NLRB v. United Mineral Chemical Corp., 391 F.2d 829, 837-838 (2d Cir. 1968). United Aircraft Corp. v. NLRB, 333 F.2d 819, 822 (2d Cir. 1964), cert. denied, 380 U.S. 910, 85 S.Ct. 893, 13 L.Ed.2d 796 (1965); see NLRB v. Pembeck Oil Corp., 404 F.2d 105, 111 (2d Cir. 1968); cf. NLRB v. M M Oldsmobile, Inc., 377 F.2d 712, 716-717 (2d Cir. 1967). But cf. NLRB v. World Carpets of New York, Inc., 403 F.2d 408, 411 n. 3 (2d Cir. 1968).
If an employer asserts a business justification for the discharge of a union activist, a violation of the Act may nevertheless be found: (1) if it appears that the reason put forward by the employer is a pretext, NLRB v.Lizdale Knitting Mills, Inc., 523 F.2d 978, 980 (2d Cir. 1975); NLRB v. Advanced Business Forms Corp., supra, 474 F.2d at 463-64; NLRB v. Pembeck Oil Corp., 404 F.2d 105, 109-10 (2d Cir. 1968), vacated on other grounds and remanded sub nom. Atlas Engine Works, Inc. v. NLRB, 395 U.S. 828, 89 S.Ct. 2125, 23 L.Ed.2d 737 (1969); NLRB v. Milco, Inc., supra, 388 F.2d at 138; cf. Beazer v. New York City Transit Authority, 558 F.2d 97, 101 (2d Cir. 1977), cert. granted, ___ U.S. ___, 98 S.Ct. 3121, 57 L.Ed.2d 1146 (1978); NLRB v. Local 294, International Brotherhood of Teamsters, 470 F.2d 57, 62 (2d Cir. 1972), or
The existence of a valid ground for discharge is not sufficient, however, if it was merely a pretext or if the discharge was based in part on an unlawful ground. NLRB v. Dorn's Transportation Co., 405 F.2d 706, 713 (2 Cir. 1969); NLRB v. Pembeck Oil Corp., 404 F.2d 105, 109-10 (2 Cir. 1968), vacated on other grounds and remanded sub nom. Atlas Engine Works, Inc. v. NLRB, 395 U.S. 828 (1969). The consequences to an employee of being discharged under the pretext of poor work performance are too serious to allow the discharge to stand when an improper motive entered into the employer's decision to discharge.
Together with No. 906, Thrift Drug Co. of Pennsylvania v. National Labor Relations Board, and No. 1213, Lou De Young's Market Basket, Inc. v. National Labor Relations Board, also on petitions for writs of certiorari to the United States Court of Appeals for the Sixth Circuit; and No. 1273, National Labor Relations Board v. Pembek Oil Corp., on petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.Certiorari granted; No. 598, 396 F.2d 775; No. 906, 404 F.2d 1097; No. 1213, 406 F.2d 17; No. 1273, 404 F.2d 105, vacated and remanded. Robert B. Gosline for petitioner in No. 598. Robert Lewis for petitioner in No. 906. Laurent K. Varnum for petitioner in No. 1213. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for petitioner in No. 1273.
We fail to comprehend the real possibility of accommodation in the present context without someone's constitutional rights being violated which in turn would seem to preclude the possibility of accommodation as an answer to the obviation of the religious entanglement problem.Catholic Bishop, 559 F.2d at 1130 (quoting NLRB v. The Pembeck Oil Corp., 404 F.2d 105, 109 (2d Cir. 1968), vacated on other grounds and remanded, 395 U.S. 828, 89 S.Ct. 2125, 23 L.Ed.2d 737 (1969)). We agree with the Seventh Circuit that in cases involving lay faculty the Board should not be allowed to find a violation simply because anti-union animus motivated a discharge "in part."
It is now well established that such knowledge need not be based on direct personal observation, but can be inferred from the facts and circumstances involved. Chauffeurs, Teamsters and Helpers, Local 633 of New Hampshire v. NLRB, 166 U.S.App. D.C. 157, 163-164, 509 F.2d 490, 496-497 (1974); A. J. Krajewski Manufacturing Co. v. NLRB, 413 F.2d 673 (1st Cir. 1969); NLRB v. Pembeck Oil Corp., 404 F.2d 105, 110 (2d Cir. 1968); Joseph Antell, Inc., supra, 358 F.2d 880. The leading case in this area, at least in this circuit, is Joseph Antell, Inc., supra.
[Emphasis added.] NLRB v. The Pembeck Oil Corporation, 404 F.2d 105, 109 (2d Cir. 1968), vacated on other grounds and remanded, 395 U.S. 828, 89 S.Ct. 2125, 23 L.Ed.2d 737 (1969). In sum, on this point it appears clear that the existence of a valid ground for discharge is not sufficient, if it was merely a pretext or the discharge was based in part on an unlawful ground.
It is irrelevant to the consideration of a remedy for that wrong that the wrong might have been avoided by a discharge for a legal reason. Cf. NLRB v. George J. Roberts Sons, Inc., 451 F.2d 941, 945 (2d Cir. 1971) (if discharge of employee occurred even partially for motive that violated labor laws, he has suffered a remediable wrong, even if ample valid grounds existed for his discharge); NLRB v. Pembeck Oil Corp., 404 F.2d 105, 109 (2d Cir. 1968) (same), vacated on other grounds, 395 U.S. 828, 89 S.Ct. 2125, 23 L.Ed.2d 737 (1969). The wrong being proven, the only question remaining is how best to make the discharged employee whole for the violation of his rights.
As we said in the context of an employer violation of the Act, even "where there are legitimate reasons for the discharge of an employee, the question is whether those were in fact the only grounds for the dismissal, or whether they were `put forth as a mere pretext to justify an impermissible discharge' [citation omitted]." N L R B v. Pembeck Oil Corp., 404 F.2d 105, 110 (2 Cir. 1968). We agree with the Trial Examiner's finding that the punishment of Levernois was only a pretext cloaking the Union's real motive and, further, that ". . . pretextuous conduct unlawfully motivated which causes an effect which the Act proscribes is a violation of the Act."