author: Mr. Chief Justice Warren Mr. Justice Harlan,

text:
    WASHINGTON v. TEXAS.
    No. 649.
    Argued March 15-16, 1967.
    Decided June 12, 1967.

      Charles W. Tessmer argued the cause for petitioner. With him on the brief was Emmett Colvin, Jr.

      Howard M. Fender, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Crawford C. Martin, Attorney General, George Cowden, First Assistant Attorney General, Robert Lattimore, Assistant Attorney General, and A. J. Carubbi, Jr.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

We granted certiorari in this case to determine whether the right of a defendant in a criminal case under the Sixth Amendment to have compulsory process for obtaining witnesses in his favor is applicable to the States through the Fourteenth Amendment, and whether that right was violated by a state procedural statute providing that persons charged as principals, accomplices, or accessories in the same crime cannot be introduced as witnesses for each other.

Petitioner, Jackie Washington, was convicted in Dallas County, Texas, of murder with malice and was sentenced by a jury to 50 years in prison. The prosecution’s evidence showed that petitioner, an 18-year-old youth, had dated a girl named Jean Carter until her mother had forbidden her to see him. The girl thereafter began dating another boy, the deceased. Evidently motivated by jealousy, petitioner with several other boys began driving around the City of Dallas on the night of August 29, 1964, looking for a gun. The search eventually led to one Charles Fuller, who joined the group with his shotgun. After obtaining some shells from another source, the group of boys proceeded to Jean Carter’s home, where Jean, her family and the deceased were having supper. Some of the boys threw bricks at the house and then ran back to the car, leaving petitioner and Fuller alone in front of the house with the shotgun. At the sound of the bricks the deceased and Jean Carter’s mother rushed out on the porch to investigate. The shotgun was fired by either petitioner or Fuller, and the deceased was fatally wounded. Shortly afterward petitioner and Fuller came running back to the car where the other boys waited, with Fuller carrying the shotgun.

Petitioner testified in his own behalf. He claimed that Fuller, who was intoxicated, had taken the gun from him, and that he had unsuccessfully tried to persuade Fuller to leave before the shooting. Fuller had insisted that he was going to shoot someone, and petitioner had run back to the automobile. He saw the girl’s mother come out of the door as he began running, and he subsequently heard the shot. At the time, he had thought that Fuller had shot the woman. In support of his version of the facts, petitioner offered the testimony of Fuller. The record indicates that Fuller would have testified that petitioner pulled at him and tried to persuade him to leave, and that petitioner ran before Fuller fired the fatal shot.

It is undisputed that Fuller’s testimony would have been relevant and material, and that it was vital to the defense. Fuller was the only person other than petitioner who knew exactly who had fired the shotgun and whether petitioner had at the last minute attempted to prevent the shooting. Fuller, however, had been previously convicted of the same murder and sentenced to 50 years in prison, and he was confined in the Dallas County jail. Two Texas statutes provided at the time of the trial in this case that persons charged or convicted as coparticipants in the same crime could not testify for one another, although there was no bar to their testifying for the State. On the basis of these statutes the trial judge sustained the State’s objection and refused to allow Fuller to testify. Petitioner’s conviction followed, and it was upheld on appeal by the Texas Court of Criminal Appeals. 400 S. W. 2d 756. We granted certiorari. 385 U. S. 812. We reverse.

I.

We have not previously been called upon to decide whether the right of an accused to have compulsory process for obtaining witnesses in his favor, guaranteed in federal trials by the Sixth Amendment, is so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment. At one time, it was thought that the Sixth Amendment had no application to state criminal trials. That view no longer prevails, and in recent years we have increasingly looked to the specific guarantees of the Sixth Amendment to determine whether a state criminal trial was conducted with due process of law. We have held that due process requires that the accused have the assistance of counsel for his defense, that he be confronted with the witnesses against him, and that he have the right to a speedy and public trial.

The right of an accused to have compulsory process for obtaining witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States. This Court had occasion in In re Oliver, 333 U. S. 257 (1948), to describe what it regarded as the most basic ingredients of due process of law. It observed that:

“A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” 333 U. S., at 273 (footnote omitted).

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

II.

Since the right to compulsory process is applicable in this state proceeding, the question remains whether it was violated in the circumstances of this case. The testimony of Charles Fuller was denied to the defense not because the State refused to compel his attendance, but because a state statute made his testimony inadmissible whether he was present in the courtroom or not. We are thus called upon to decide whether the Sixth Amendment guarantees a defendant the right under any circumstances to put his witnesses on the stand, as well as the right to compel their attendance in court. The resolution of this question requires some discussion of the common-law context in which the Sixth Amendment was adopted.

Joseph Story, in his famous Commentaries on the Constitution of the United States, observed that the right to compulsory process was included in the Bill of Rights in reaction to the notorious common-law rule that in cases of treason or felony the accused was not allowed to introduce witnesses in his defense at all. Although the absolute prohibition of witnesses for the defense had been abolished in England by statute before 1787, the Framers of the Constitution felt it necessary specifically to provide that defendants in criminal cases should be provided the means of obtaining witnesses so that their own evidence, as well as the prosecution’s, might be evaluated by the jury.

Despite the abolition of the rule generally disqualifying defense witnesses, the common law retained a number of restrictions on witnesses who were physically and mentally capable of testifying. To the extent that they were applicable, they had the same effect of suppressing the truth that the general proscription had had. Defendants and codefendants were among the large class of witnesses disqualified from testifying on the ground of interest. A party to a civil or criminal case was not allowed to testify on his own behalf for fear that he might be tempted to lie. Although originally the disqualification of a codefendant appears to have been based only on his status as a party to the action, and in some jurisdictions co-indictees were allowed to testify for or against each other if granted separate trials, other jurisdictions came to the view that accomplices or co-indictees were incompetent to testify at least in favor of each other even at separate trials, and in spite of statutes making a defendant competent to testify in his own behalf. It was thought that if two persons charged with the same crime were allowed to testify on behalf of each other, “each would try to swear the other out of the charge.” This rule, as well as the other disqualifications for interest, rested on the unstated premises that the right to present witnesses was subordinate to the court’s interest in preventing perjury, and that erroneous decisions were best avoided by preventing the jury from hearing any testimony that might be perjured, even if it were the only testimony available on a crucial issue.

The federal courts followed the common-law restrictions for a time, despite the Sixth Amendment. In United States v. Reid, 12 How. 361 (1852), the question was whether one of two defendants jointly indicted for murder on the high seas could call the other as a witness. Although this Court expressly recognized that the Sixth Amendment was designed to abolish some of the harsh rules of the common law, particularly including the refusal to allow the defendant in a serious criminal case to present witnesses in his defense, it held that the rules of evidence in the federal courts were those in force in the various States at the time of the passage of the Judiciary Act of 1789, including the disqualification of defendants indicted together. The holding in United States v. Reid was not satisfactory to later generations, however, and in 1918 this Court expressly overruled it, refusing to be bound by “the dead hand of the common-law rule of 1789,” and taking note of “the conviction of our time that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court . . . Rosen v. United States, 245 U. S. 467, 471.

Although Rosen v. United States rested on noncon-stitutional grounds, we believe that its reasoning was required by the Sixth Amendment. In light of the common-law history, and in view of the recognition in the Reid case that the Sixth Amendment was designed in part to make the testimony of a defendant’s witnesses admissible on his behalf in court, it could hardly be argued that a State would not violate the clause if it made all defense testimony inadmissible as a matter of procedural law. It is difficult to see how the Constitution is any less violated by arbitrary rules that prevent whole categories of defense witnesses from testifying on the basis of a priori categories that presume them unworthy of belief.

The rule disqualifying an alleged accomplice from testifying on behalf of the defendant cannot even be defended on the ground that it rationally sets apart a group of persons who are particularly likely to commit perjury. The absurdity of the rule is amply demonstrated by the exceptions that have been made to it. For example, the accused accomplice may be called by the prosecution to testify against the defendant. Common sense would suggest that he often has a greater interest in lying in favor of the prosecution rather than against it, especially if he is still awaiting his own trial or sentencing. To think that criminals will lie to save their fellows but not to obtain favors from the prosecution for themselves is indeed to clothe the criminal class with more nobility than one might expect to find in the public at large. Moreover, under the Texas statutes the accused accomplice is no longer disqualified if he is acquitted at his own trial. Presumably, he would then be free to testify on behalf of his comrade, secure in the knowledge that he could incriminate himself as freely as he liked in his testimony, since he could not again be prosecuted for the same offense. The Texas law leaves him free to testify when he has a great incentive to perjury, and bars his testimony in situations where he has a lesser motive to lie.

We hold that the petitioner in this case was denied his right to have compulsory process for obtaining .witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense. The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use. The judgment of conviction must be reversed.

It is so ordered.

Mr. Justice Harlan,

concurring in the result.

For reasons that I have stated in my concurring opinion in Gideon v. Wainwright, 372 U. S. 335, 349, and in my opinion concurring in the result in Pointer v. Texas, 380 U. S. 400, 408, and in my dissenting opinion in Poe v. Ullman, 367 U. S. 497, 539-545, I cannot accept the view that the Due Process Clause of the Fourteenth Amendment “incorporates,” in its terms, the specific provisions of the Bill of Rights. In my view the Due Process Clause is not reducible to “a series of isolated points,” but is rather “a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . .” Poe v. Ullman, supra, at 543; see Palko v. Connecticut, 302 U. S. 319; Klopfer v. North Carolina, 386 U. S. 213, 226 (opinion concurring in the result).

I concur in the result in this case because I believe that the State may not constitutionally forbid the petitioner, a criminal defendant, from introducing on his own behalf the important testimony of one indicted in connection with the same offense, who would not, however, be barred from testifying if called by the prosecution. Texas has put forward no justification for this type of discrimination between the prosecution and the defense in the ability to call the same person as a witness, and I can think of none.

In my opinion this is not, then, really a problem of “compulsory process” at all, although the Court’s in-corporationist approach leads it to strain this constitutional provision to reach these peculiar statutes. Neither is it a situation in which the State has determined, as a matter of valid state evidentiary law, on the basis of general experience with a particular class of persons, as for example, the mentally incompetent or those previously convicted of perjury, that the pursuit of truth is best served by an across-the-board disqualification as witnesses of persons of that class. Compare Spencer v. Texas, 385 U. S. 554. This is rather a case in which the State has recognized as relevant and competent the testimony of this type of witness, but has arbitrarily barred its use by the defendant. This, I think, the Due Process Clause forbids.

On this premise I concur in the reversal of the judgment of conviction.

       “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

      “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .”

       See Fuller v. State, 397 S. W. 2d 434 (Tex. Crim. App. 1966).

       “Persons charged as principals, accomplices or accessories, whether in the same or by different indictments, can not be introduced as witnesses for one another, but they may claim a severance, and if one or more be acquitted they may testify in behalf of the others.” Tex. Pen. Code, Art. 82.
      “Persons charged as principals, accomplices or accessories, whether in the same or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others.” Tex. Code Crim. Proc., Art. 711 (1925).
      These statutory provisions were apparently repealed by implication by Art. 36.09 of the Texas Code of Criminal Procedure of 1965, which became effective after petitioner’s trial. Article 36.09 provides that “Two or more defendants who are jointly or separately indicted or complained against for the same offense or an offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the State . . . .”
      Counsel have cited no statutes from other jurisdictions, and we have found none, that flatly disqualify coparticipants in a crime from testifying for each other regardless of whether they are tried jointly or separately. To be distinguished are statutes providing that one of two or more defendants tried jointly may, if the evidence against him is insufficient, be entitled to an immediate acquittal so he may testify for the others. These statutes seem designed to allow such joint defendants to testify without incriminating themselves. See, e. g., Ala. Code, Tit. 15, § 309 (1958); Alaska Code Crim. Proc. § 12.20.060 (1962); Kan. Gen. Stat. Ann. § 62-1440 (1964).

        Rangel v. State, 22 Tex. Ct. App. 642, 3 S. W. 788 (1887).

       “[A] provision of the Bill of Rights which is ‘fundamental and essential to a fair trial’ is made obligatory upon the States by the Fourteenth Amendment.” Gideon v. Wainwright, 372 U. S. 335, 342 (1963).

       See West v. Louisiana, 194 U. S. 258, 264 (1904).

        Gideon v. Wainwright, 372 U. S. 335 (1963).

        Pointer v. Texas, 380 U. S. 400 (1965).

        Klopfer v. North Carolina, 386 U. S. 213 (1967).

        In re Oliver, 333 U. S. 257 (1948).

       3 Story, Commentaries on the Constitution of the United States §§ 1786-1788 (1st ed. 1833).

       By 1701 the accused in both treason and felony cases was allowed to produce witnesses who could testify under oath. See 2 Wigmore, Evidence § 575, at 685-686 (3d ed. 1940).

       See generally 2 Wigmore §§ 575-576 (3d ed. 1940). We have discussed elsewhere the gradual demise of the common-law rule prohibiting defendants from testifying in their own behalf. See Ferguson v. Georgia, 365 U. S. 570 (1961).

       See 2 Wigmore § 580, at 709-710 (3d ed. 1940); Henderson v. State, 70 Ala. 23, 24-25 (Dec. Term 1881); Allen v. State, 10 Ohio St. 287, 303 (Dec. Term 1859).

       See Foster v. State, 45 Ark. 328 (May Term 1885); State v. Drake, 11 Ore. 396, 4 Pac. 1204 (1884). Both cases have been overturned by statute. Ark. Stat. Ann. §43-2017 (1947); Ore. Rev. Stat. § 139.315 (1965).

        Benson v. United States, 146 U. S. 325, 335 (1892).

       “Indeed, the theory of the common law was to admit to the witness stand only those presumably honest, appreciating the sanctity of an oath, unaffected as a party by the result, and free from any of the temptations of interest. The courts were afraid to trust the intelligence of jurors.” Benson v. United States, 146 U. S. 325, 336 (1892).

       12 How., at 363-364.

       See n. 5, supra.

         Nothing in this opinion should be construed as disapproving testimonial privileges, such as the privilege against self-incrimination or the lawyer-client or husband-wife privileges, which are based on entirely different considerations from those underlying the common-law disqualifications for interest. Nor do we deal in this case with nonarbitrary state rules that disqualify as witnesses persons who, because of mental infirmity or infancy, are incapable of observing events or testifying about them.

         E. g., Cal. Civ. Proc. Code § 1880, subd. 1; Cal. Pen. Code § 1321.

        E. g., Vermont Stat. Ann., Tit. 12, § 1608. See generally 2 Wigmore, Evidence § 488 (3d ed. 1940).


source: Caselaw Access Project

author: MR. Chief Justice Warren Me. Justice Harlan,

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD v. GREAT DANE TRAILERS, INC.
    No. 781.
    Argued April 19, 1967.
    Decided June 12, 1967.

      Arnold Ordman argued the cause for petitioner. With him on the brief were Solicitor General Marshall, Dominick L. Manoli and Norton J. Come.

      O. R. T. Bowden argued the cause and filed a brief for respondent.
   MR. Chief Justice Warren

delivered the opinion of the Court.

The issue here is whether, in the absence of proof of an antiunion motivation, an employer may be held to have violated §§ 8 (a)(3) and (1) of the National Labor Relations Act when it refused to pay striking employees vacation benefits accrued under a terminated collective bargaining agreement while it announced an intention to pay such benefits to striker replacements, returning strikers, and nonstrikers who had been at work on a certain date during the strike.

The respondent company and the union entered into a collective bargaining agreement which was effective by its terms until March 31,1963. The agreement contained a commitment by the company to pay vacation benefits to employees who met certain enumerated qualifications. In essence, the company agreed to pay specified vacation benefits to employees who, during the preceding year, had worked at least 1,525 hours. It was also provided that, in the case of a “lay-off, termination or quitting,” employees who had served more than 60 days during the year would be entitled to pro rata shares of their vacation benefits. Benefits were to be paid on the Friday nearest July 1 of each year.

The agreement was temporarily extended beyond its termination date, but on April 30, 1963, the union gave the required 15 days’ notice of intention to strike over issues which remained unsettled at the bargaining table. Accordingly, on May 16, 1963, approximately 350 of the company’s 400 employees commenced a strike which lasted until December 26, 1963. The company continued to operate during the strike, using nonstrikers, persons hired as replacements for strikers, and some original strikers who had later abandoned the strike and returned to work. On July 12, 1963, a number of the strikers demanded their accrued vacation pay from the company. The company rejected this demand, basing its response on the assertion that all contractual obligations had been terminated by the strike and, therefore, none of the company’s employees had a right to vacation pay. Shortly thereafter, however, the company announced that it would grant vacation pay — in the amounts and subject to the conditions set out in the expired agreement— to all employees who had reported for work on July 1, 1963. The company denied that these payments were founded on the agreement and stated that they merely reflected a new “policy” which had been unilaterally adopted.

The refusal to pay vacation benefits to strikers, coupled with the payments to nonstrikers, formed the bases of an unfair labor practice complaint filed with the Board while the strike was still in progress. Violations of §§ 8 (a)(3) and (1) were charged. A hearing was held before a trial examiner who found that the company's action in regard to vacation pay constituted a discrimination in terms and conditions of employment which would discourage union membership, as well as an unlawful interference with protected activity. He held that the company had violated §§ 8 (a)(3) and (1) and recommended that it be ordered to cease and desist from its unfair labor practice and to pay the accrued vacation benefits to strikers. The Board, after reviewing the record, adopted the Trial Examiner’s conclusions and remedy.

A petition for enforcement of the order was filed in the Court of Appeals for the Fifth Circuit. That court first dealt with the company’s contention that the Board had lacked jurisdiction and that the union should have been relegated either to the bargaining table or to a lawsuit under § 301 of the Act, since the basic question was one of contract interpretation and application. It noted that the company’s announced policy relating to vacation pay clearly concerned a “term or condition of employment”; since it was alleged that the company had discriminated between striking and nonstriking employees in regard to that term or condition of employment, the complaint stated “an unfair labor practice charge in simplest terms” and the Board had properly exercised its jurisdiction. Reviewing the substantive aspects of the Board's decision next, the Court of Appeals held that, although discrimination between striking and nonstriking employees had been proved, the Board’s conclusion that the company had committed an unfair labor practice was not well-founded inasmuch as there had been no affirmative showing of an unlawful motivation to discourage union membership or to interfere with the exercise of protected rights. Despite the fact that the company itself had not introduced evidence of a legitimate business purpose underlying its discriminatory action, the Court of Appeals speculated that it might have been motivated by a desire “(1) to reduce expenses; (2) to encourage longer tenure among present employees; or (3) to discourage early leaves immediately before vacation periods.” Believing that the possibility of the existence of such motives was sufficient to overcome the inference of an improper motive which flowed from the conduct itself, the court denied enforcement of the order. 363 F. 2d 130 (1966). We granted certiorari to determine whether the treatment of the motivation issue by the Court of Appeals was consistent with recent decisions of this Court. 385 U. S.. 1000 (1967).

The unfair labor practice charged here is grounded primarily in §8 (a) (3) which requires specifically that the Board find a discrimination and a resulting discouragement of union membership. American Ship Building Co. v. Labor Board, 380 U. S. 300, 311 (1965). There is little question but that the result of the company’s refusal to pay vacation benefits to strikers was discrimination in its simplest form. Compare Republic Aviation Corp. v. Labor Board, 324 U. S. 793 (1945), with Teamsters Union v. Labor Board, 365 U. S. 667 (1961). Some employees who met the conditions specified in the expired collective bargaining agreement were paid accrued vacation benefits in the amounts set forth in that agreement, while other employees who also met the conditions but who had engaged in protected concerted activity were denied such benefits. Similarly, there can be no doubt but that the discrimination was capable of discouraging membership in a labor organization within the meaning of the statute. Discouraging membership in a labor organization “includes discouraging participation in concerted activities . . . such as a legitimate strike.” Labor Board v. Erie Resistor Corp., 373 U. S. 221, 233 (1963). The act of paying accrued benefits to one group of employees while announcing the extinction of the same benefits for another group of employees who are distinguishable only by their participation in protected concerted activity surely may have a discouraging effect on either present or future concerted activity.

But inquiry under § 8 (a) (3) does not usually stop at this point. The statutory language “discrimination . . . to . . . discourage” means that the finding of a violation normally turns on whether the discriminatory conduct was motivated by an antiunion purpose. American Ship Building Co. v. Labor Board, 380 U. S. 300 (1965). It was upon the motivation element that the Court of Appeals based its decision not to grant enforcement, and it is to that element which we now turn. In three recent opinions we considered employer motivation in the context of asserted § 8 (a) (3) violations. American Ship Building Co. v. Labor Board, supra; Labor Board v. Brown, 380 U. S. 278 (1965); and Labor Board v. Erie Resistor Corp., supra. We noted in Erie Resistor, supra, at 227, that proof of an antiunion motivation may make unlawful certain employer conduct which would in other circumstances be lawful. Some conduct, however, is so “inherently destructive of employee interests” that it may be deemed proscribed without need for proof of an underlying improper motive. Labor Board v. Brown, supra, at 287; American Ship Building Co. v. Labor Board, supra, at 311. That is, some conduct carries with it “unavoidable consequences which the employer not only foresaw but which he must have intended” and thus bears “its own indicia of intent.” Labor Board v. Erie Resistor Corp., supra, at 228, 231. If the conduct in question falls within this “inherently destructive” category, the employer has the burden of explaining away, justifying or characterizing “his actions as something different than they appear on their face,” and if he fails, “an unfair labor practice charge is made out.” Id., at 228. And even if the employer does come forward with counter explanations for his conduct in this situation, the Board may nevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy. Id., at 229. On the other hand, when “the resulting harm to employee rights is . . . comparatively slight, and a substantial and legitimate business end is served, the employers’ conduct is prima facie lawful,” and an affirmative showing of improper motivation must be made. Labor Board v. Brown, supra, at 289; American Ship Building Co. v. Labor Board, supra, at 311-313.

From this review of our recent decisions, several principles of controlling importance here can be distilled. First, if it can reasonably be concluded that the employer’s discriminatory conduct was “inherently destructive” of important employee rights, no proof of an anti-union motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is “comparatively slight,” an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.

Applying the principles to this case then, it is not necessary for us to decide the degree to which the challenged conduct might have affected employee rights. As the Court of Appeals correctly noted, the company came forward with no evidence of legitimate motives for its discriminatory conduct. 363 F. 2d, at 134. The company simply did not meet the burden of proof, and the Court of Appeals misconstrued the function of judicial review when it proceeded nonetheless to speculate upon what might have motivated the company. Since discriminatory conduct carrying a potential for adverse effect upon employee rights was proved and no evidence of a proper motivation appeared in the record, the Board’s conclusions were supported by substantial evidence, Universal Camera Corp. v. Labor Board, 340 U. S. 474 (1951), and should have been sustained.

The judgment of the Court of Appeals is reversed and the case is remanded with directions to enforce the Board’s order.

It is so ordered.

Me. Justice Harlan,

whom Mr. Justice Stewart joins,

dissenting.

Because I think that the Court puts forth a premise which misinterprets the recent decision in NLRB v. C & C Plywood Corp., 385 U. S. 421, and has proposed a determining rule based on a distillation of prior opinions which is, in my view, substantially inaccurate, I am constrained to express my dissent from its opinion. I believe that the Fifth Circuit correctly analyzed the problem, and that its decision should be affirmed.

The Court begins by stating that vacation benefits had “accrued” under the contract, and implies that striking employees had a contractual right to such benefits which was arbitrarily disregarded by Great Dane in order to punish those employees for engaging in protected activity. Were these the properly established facts of the case, I would have little difficulty in concurring in the result reached by the majority. Employer action which undercuts rights protected by § 7 of the National Labor Relations Act, as amended, 61 Stat. 140, and has no inferable, legitimate business purpose has been held a violation of §§ 8 (a)(3) and (1). Republic Aviation Corp. v. Labor Board, 324 U. S. 793. But the contract dispute is not so frivolous as to be determined without examination, and the issue framed by the Court is not properly before us. Moreover, contrary to the Court’s assertion, neither the Board nor the lower court limited itself to considering this issue, and both recognized a limitation on the Board’s contract interpretation powers in light of § 301 (a) of the Labor Management Relations Act, 1947.

The Board disclaimed “interpreting the contract for the parties” and held only that “strikers must be treated uniformly with nonstrikers with respect to whatever benefits accrue to the latter from the existence of the employment relationship.” It explained that its order would merely force the employer to use the same vacation pay criteria for all employees and only prevent Great Dane from using the requirement that a recipient be at work as of July 1, 1963. The Court of Appeals considered the “term or condition of employment” at issue to be the employer’s unilaterally declared vacation “policy.” It explicitly disregarded “the question of whether the Board would have acted improperly . . . to decide whether it was an unfair labor practice to withhold benefits due under the contract . . . .” 363 F. 2d 130, 133. (Emphasis in original.)

I think the Board and the Court of Appeals were correct in disregarding the contract issue. In NLRB v. C & C Plywood Corp., supra, which the Court says upholds jurisdiction to consider the contract, we faced a situation in which an employer had taken a unilateral action with respect to wages which was a prima facie violation of § 8 (a) (3) and was attempting to justify that action by contractual privilege. The Court held that the interposition of a contractual defense could not deprive the Board of jurisdiction to “enforce a statutory right” where the Board had “not construed a labor agreement to determine the extent of the contractual rights which were given the union by the employer.” Id., at 428. Also the agreement involved in that case did not contain an arbitration clause and thus the strong policy favoring arbitration was not infringed by the Board’s action. Id., at 426. Here the Court’s statement of the issue would imply that the Board may consider an unfair labor practice founded solely on breach of a contractual duty, and the labor agreement seems to invoke the remedy of arbitration. In these circumstances, I think the. only issue properly before the Court is whether the employer’s unilaterally declared vacation policy, considered on its own bottom, constitutes a violation of § 8 (a) (3) absent a showing of improper motivation by evidence independent of the policy itself.

The Court attempts to resolve this issue as well as the contractual one. In the Court’s view an employer must “come forward with evidence of legitimate and substantial business justifications” whenever any of his actions are challenged in a § 8 (a) (3) proceeding. Prior to today’s decision, § 8 (a) (3) violations could be grouped into two general categories: those based on actions serving no legitimate business purposes or actions inherently severely destructive of employee rights where improper motive could be inferred from the actions themselves, and, in the latter instance, even a legitimate business purpose could be held by the Board not to justify the employer’s conduct, Labor Board v. Erie Resistor Corp., 373 U. S. 221; and those not based on actions “demonstrably so destructive of employee rights and so devoid of significant service to any legitimate business end,” where independent evidence evincing the employer’s anti-union animus would be required to find a violation. Labor Board v. Brown, 380 U. S. 278, 286. The Court is unable to conclude that the employer’s conduct in this case falls into the first category, and has proposed its rule as an added gloss on the second whose contours were fixed only two years ago in Brown.

Under today’s formulation, the Board is required to find independent evidence of the employer’s antiunion motive only when the employer has overcome the presumption of unlawful motive which the Court raises. This alteration of the burden in §8 (a) (3) cases may either be a rule of convenience important to the resolution of this case alone or may, more unfortunately, portend an important shift in the manner of deciding employer unfair labor practice cases under §8 (a)(3). In either event, I believe it is unwise.

The “legitimate and substantial business justifications” test may be interpreted as requiring only that the employer come forward with a nonfrivolous business purpose in order to make operative the usual requirement of proof of antiunion motive. If this is the result of today’s decision, then the Court has merely penalized Great Dane for not anticipating this requirement when arguing before the Board. Such a penalty seems particularly unfair in view of the clarity of our recent pronouncements that “the Board must find from evidence independent of the mere conduct involved that the conduct was primarily motivated by an antiunion animus/’ Labor Board v. Brown, 380 U. S., at 288, and that “the Board must find that the employer acted for a proscribed purpose.” American Ship Building Co. v. Labor Board, 380 U. S. 300, 313.

On the other hand, the use of the word “substantial” in the burden of proof formulation may give the Board a power which it formerly had only in § 8 (a)(3) cases like Erie Resistor, supra. The Board may seize upon that term to evaluate the merits of the employer’s business purposes and weigh them against the harm that befalls the union’s interests as a result of the employer’s action. If this is the Court’s meaning, it may well impinge upon the accepted principle that “the right to bargain collectively does not entail any ‘right’ to insist on one’s position free from economic disadvantage.” American Ship Building Co. v. Labor Board, supra, at 309. Employers have always been free to take reasonable measures which discourage a strike by pressuring the economic interests of employees, including the extreme measure of hiring permanent replacements, without having the Board inquire into the “substantiality” of their business justifications. Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333. If the Court means to change this rule, though I assume it does not, it surely should not do so without argument of the point by the parties and without careful discussion.

In my opinion, the Court of Appeals correctly held that this case fell into the category in which independent evidence of antiunion motive is required to sustain a violation. As was pointed out in the Court of Appeals opinion, a number of legitimate motives for the terms of the vacation policy could be inferred, 363 F. 2d, at 134, and an unlawful motive is not the sole inference to be drawn from the conduct. Nor is the employer’s conduct here, like the super-seniority plan in Erie Resistor, supra, such that an unlawful motive can be found by “an application of the common-law rule that a man is held to intend the foreseeable consequences of his conduct.” Radio Officers v. Labor Board, 347 U. S. 17, 45. The differences between the facts of this case and those of Erie Resistor, supra, are, as the parties recognize, so significant as to preclude analogy. Unlike the granting-of super-seniority, the vacation pay policy here had no potential long-term impact on the bargaining situation. The vacation policy was not employed as a weapon against the strike as was the super-seniority plan. Notice of the date of required presence for vacation pay eligibility was not given until after the date had passed. The record shows clearly that Great Dane had no need to employ any such policy to combat the strike, since it had successfully replaced almost all of the striking employees. The Trial Examiner rejected all union claims that particular actions by Great Dane demonstrated antiunion animus. In these circumstances, the Court of Appeals correctly found no substantial evidence of a violation of §8 (a) (3).

Plainly the Court is concerned lest the strikers in this case be denied their “rights” under the collective bargaining agreement that expired at the commencement of the strike. Equally plainly, a suit under § 301 is the proper manner by which to secure these “rights,” if they indeed exist. I think it inappropriate to becloud sound prior interpretations of § 8 (a) (3) simply to reach what seems a sympathetic result.

       National Labor Relations Act, as amended, §§8 (a)(3) and (1), 61 Stat. 140-141, 29 U. S. C. §§ 158 (a)(3) and (1).

       Local 26, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO.

       Article VIII of the collective bargaining agreement was entitled “Vacations.” It read, in pertinent part:
      “(a) Each qualified employee covered by this agreement shall be entitled after one (1) year of continuous employment, at a time agreeable to the Company, to a vacation of seven (7) consecutive days with pay for forty (40) hours at the rate of pay existing for such employee at the time of the beginning of his vacation. Each employee, after five (5) years’ continuous service, shall be entitled to a vacation of fourteen (14) consecutive days, with pay for eighty (80) hours. Any employee entitled to a vacation with pay may waive the right, if his services are needed by the employer, to such vacation during the period of this agreement, and in such cases shall be entitled to receive in lieu thereof, at the time he becomes entitled to the vacation, the amount of vacation pay such employee would otherwise have received over and above the wages received for work performed during the vacation period.
      “(b) To qualify for the said vacation, it is necessary that an employee shall have worked a total of fifteen hundred twenty-five (1525) hours in the said year; any time lost, however, because of an industrial accident while employed by this Company to count as part of the qualifying time.
      “(d) Employees who have served less than sixty (60) days on the next July 1 after date of employment will receive no vacation pay on that date but on the following July 1 will receive the vacation due in accordance with the above qualifying requirements, plus extra amount due in accordance with hours worked.
      “(e) In case of lay-off, termination or quitting, an employee who has served more than sixty (60) days shall receive pro rata share of vacation.
      “(f) All vacation pay shall be paid on Friday nearest July 1st, except as outlined in paragraph (d).”

       All strikers had been replaced by October 8, 1963. After their replacement, some strikers were rehired by the company, apparently as new employees.

       The complaint also charged independent violations of § 8 (a) (1). These were rejected by the Trial Examiner and by the Board.

       § 301, Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185.

       In this Court the company apparently abandoned the argument under § 301. In any event, we agree with the Court of Appeals that the complaint, alleging as it did a discrimination in regard to a term or condition of employment, stated an unfair labor practice charge. The fact that the conduct complained of might also have supported an action under § 301 did not deprive the Board of jurisdiction. NLRB v. C & C Plywood Corp., 385 U. S. 421 (1967); Mastro Plastics Corp. v. Labor Board, 350 U. S. 270 (1956). Cf. Smith v. Evening News Assn., 371 U. S. 195 (1962). This, of course, is not to say that every breach of a collective bargaining agreement-may be the subject of an unfair labor practice proceeding. But when the elements of an unfair labor practice are present in a breach of contract, the injured party is not automatically deprived by § 301 of his right to proceed before the Board where his remedy may be speedier and less expensive than a lawsuit. NLRB v. C & C Plywood Corp., supra, at 429-430.

       National Labor Relations Act, as amended, §2(3), 61 Stat. 137, 29 U. S. C. § 152 (3), declares:
      "The term 'employee’. . . shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute . . . and who has not obtained any other regular and substantially equivalent employment . . . ,”

       The union elected to terminate the contract raising the question whether any right to vacation pay survived the termination. Also the contract provided for vacation pay when the employee was not actually granted a vacation, and the initial choice lay with the employer. Thus under the contract the employer was not obligated to grant two weeks’ additional pay, but could choose to grant vacation instead and lower the total cash outlay. Termination precluded exercise of that choice.

       61 Stat. 156, 29 U. S. C. § 185 (a). This position is supported by the legislative history discussed in NLRB v. C & C Plywood Corp., 385 U. S. 421, at 427.

       Article XIV of the contract provided that arbitration would not be required after one party had given notice of intent to terminate or modify the contract. This disclaimer clearly implies that arbitration would be required in the resolution of disputes arising under the contract.

       By July 1, 1963, almost 75% of the striking employees had been replaced. By August 1, 1963, when the dispute over vacation pay was coming to a head almost 90% had been replaced. All strikers had been replaced by October 8, 1963.