462 U.S. 393 (1983), 82-168, N.l.r.b. v. Transportation Management Corp.

Docket Nº:No. 82-168.
Citation:462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner v. TRANSPORTATION MANAGEMENT CORP.
Case Date:June 15, 1983
Court:United States Supreme Court
 
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Page 393

462 U.S. 393 (1983)

103 S.Ct. 2469, 76 L.Ed.2d 667

NATIONAL LABOR RELATIONS BOARD, Petitioner

v.

TRANSPORTATION MANAGEMENT CORP.

No. 82-168.

United States Supreme Court.

June 15, 1983

Argued March 28, 1983.

[103 S.Ct. 2470] Syllabus[*]

SYLLABUS

Acting on unfair labor practice charges filed by an employee of respondent, petitioner National Labor Relations Board found that respondent had discharged the employee, a bus driver, for his union activities, in violation of §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act. The Board applied its rule that the General Counsel has the burden of persuading the Board by a preponderance of the evidence that an antiunion animus contributed to the employer's decision to discharge the employee, and the employer can avoid the conclusion that it violated the Act by proving by a preponderance of the evidence that the employee would have been fired for permissible reasons even if he had not been involved in protected union activities. The Board concluded that respondent failed to carry its burden of persuading the Board that the employee's discharge would have taken place, even if he had not been engaged in protected union activities, because of his practice of leaving his keys in the bus and taking unauthorized breaks. The Court of Appeals refused to enforce the Board's order, based on its view that it was error to place the burden on the employer, and that the General Counsel carried the burden of proving not only that a forbidden motivation contributed to the discharge but also that the discharge would not have taken place independently of the employee's protected conduct.

Held:

1. The burden of proof placed on the employer under the Board's rule is consistent with §§ 8(a)(1) and 8(a)(3), as well as with § 10(c) of the Act, which provides that the Board must prove an unlawful labor practice by a "preponderance of the evidence." The Board's construction of the statute, which is not mandated by the Act, extends to the employer what the Board considers to be an affirmative defense but does not change or add to the elements of the unfair labor practice that the General Counsel has the burden of proving under § 10(c). This is a permissible construction, and the Board's allocation of the burden of proof is reasonable. Cf. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471. Pp. 2472-2475.

2. The Board was justified in this case in finding that the employee would not have been discharged had respondent not considered his protected

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activities. Such finding was supported by substantial evidence on the record considered as a whole. P. 2475.

674 F.2d 130 (1st Cir.1982), reversed.

COUNSEL

Deputy Solicitor General Wallace argued the cause for petitioner. With him on the brief were Solicitor General Lee, Carolyn F. Corwin, Norton J. Come, andLinda Sher.

Martin Ames argued the cause and filed briefs for respondent.*

* Briefs of amici curiae urging affirmance were filed by John W. Noble, Jr., and Stephen A. Bokat for the Chamber of Commerce of the United States; and byJoseph D. Alviani for the New England Legal Foundation et al.

Briefs of amici curiae were filed by J. Albert Woll, Michael H. Gottesman, Robert M. Weinberg, and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations; and by Gerard C. Smetana and Gary L. Starkman for the Council on Labor Law Equality.

Lawrence G. Wallace, Washington, D.C., for petitioner.

Martin Ames, Chelmsford, Mass., for respondent.

OPINION

WHITE, Justice, delivered the opinion of the Court.

The National Labor Relations Act (NLRA or Act), 29 U.S.C. § 151 et seq., makes unlawful the discharge of a worker because of union activity, 29 U.S.C. §§ 158(a)(1), (3),1 but employers retain the right to discharge workers for any number of other reasons unrelated to the employee's union activities. When the General Counsel of the National Labor Relations Board (Board) files a complaint alleging that an employee was discharged [103 S.Ct. 2471] because of his union activities, the employer

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may assert legitimate motives for his decision. In Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (CA1 1981), cert. denied 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), the National Labor Relations Board reformulated the allocation of the burden of proof in such cases. It determined that the General Counsel carried the burden of persuading the Board that an anti-union animus contributed to the employer's decision to discharge an employee, a burden that does not shift, but that the employer, even if it failed to meet or neutralize the General Counsel's showing, could avoid the finding that it violated the statute by demonstrating by a preponderance of the evidence that the worker would have been fired even if he had not been involved with the Union. The question presented in this case is whether the burden placed on the employer in Wright Line is consistent with §§ 8(a)(1) and 8(a)(3), as well as with § 10(c) of the NLRA, 29 U.S.C. § 160(c), which provides that the Board must prove an unlawful labor practice by a "preponderance of the evidence." 2

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 Teamster's Union about organizing the drivers who worked with him. Over

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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 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 a complaint with the Board alleging that he had been discharged because of his union activities, contrary to §§ 8(a)(1) and 8(a)(3) of the NLRA. The General Counsel issued a complaint. The administrative law judge (ALJ) determined by a preponderance of the evidence that Patterson clearly had an anti-union animus and that Santillo's discharge was motivated by a desire to discourage union activities. The ALJ also found that the asserted reasons for the discharge could not withstand scrutiny. Patterson's disapproval of Santillo's practice of leaving his keys in the bus was clearly a pretext, for Patterson had not known about Santillo's practice until after he had decided to discharge Santillo; moreover, the practice of leaving keys in buses was commonplace among respondent's employees. Respondent 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...

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