In NLRB v. Eastern Smelting, 598 F.2d 666 (1st Cir. 1979), we held that the burden is on the Board to show that the discharge resulted from the improper motive alleged, and that except in clear cases, "the mere fact that the Board considers the asserted good reason less than compelling will not suffice...."
Upholding Board's determination that discharge for insubordination was pretextual where employer "refused to discharge" another employee also accused of insubordination
In Lippincott Industries, Inc. v. NLRB, 661 F.2d 112, 114 (9th Cir. 1981), however, the court observed that "in terms of the proper legal standard to be applied, the difference between these two types of cases is of little importance."