Holo-Krome Co. v. N.L.R.B.
| Decision Date | 17 January 1992 |
| Docket Number | 322,D,HOLO-KROME,Nos. 163,s. 163 |
| Citation | 954 F.2d 108 |
| Parties | 139 L.R.R.M. (BNA) 2353, 120 Lab.Cas. P 11,094 COMPANY, Petitioner-Cross-Appellant, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 376, Intervenor. ockets 91-4061, 91-4085. |
| Court | U.S. Court of Appeals — Second Circuit |
Burton Kainen, Hartford, Conn. (Diana Garfield, Siegel, O'Connor, Schiff, Zangari & Kainen, P.C., on the brief), for petitioner-cross-appellant.
Marilyn O'Rourke, Washington, D.C. (Jerry M. Hunter, Gen. Counsel, D. Randall Frye, Acting Deputy Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and William R. Stewart, Deputy Asst. Gen. Counsel, on the brief), for respondent-cross-petitioner.
Gregg D. Adler, Hartford, Conn. (Stephen E. Meili, Gould, Livingston, Adler & Pulda, on the brief), for intervenor.
Before NEWMAN and PRATT, Circuit Judges, and POLLACK, District Judge. *
The Board's petition for rehearing raises a narrow but important procedural question concerning the conduct of administrative hearings in cases in which an employer is charged with discriminating against an employee because of union activity, in violation of section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3) (1988). We ruled in this case that the Board's decision, which found a section 8(a)(3) violation, was not supported by substantial evidence. 947 F.2d 588. In the course of our decision, we ruled that the Board had erred in considering as part of the General Counsel's prima facie case the employer's explanation, presented at the hearing, as to its reasons for the adverse action taken against the two employees. The Board vigorously urges us not to preclude consideration of such evidence in the assessment of the prima facie case, contending that the decision to give such consideration to the employer's explanation is within the administrative competence of the Board and that the Board has regularly done so in the past.
Though language in some of the Board's prior decisions raises substantial doubts as to the Board's practice, we are persuaded, for reasons set forth below, that our prior opinion in this case requires a slight refinement.
Understanding the problem requires familiarity with the subtleties of burden of proof rules in the area of unlawful motivation cases and some awareness of the regrettably different meanings that have been ascribed to some of the terms used in this field. A useful place to begin is with the distinction between so-called "pretext" cases and so-called "dual motivation" cases. Both cases start with the common fact that an employer is accused of taking adverse action against an employee for some impermissible reason. In a pretext case, the employer defends on the ground that he acted, not for the alleged invalid reason, but instead for a valid reason. The complainant (the General Counsel in NLRB cases) then has the opportunity to persuade the fact-finder that the employer's proffered reason is not the true reason but only a pretext designed to deflect attention from the true reason. In a dual motivation case, the employer defends on the ground that, even if an invalid reason might have played some part in his motivation, he would have taken the same adverse action in the absence of the invalid reason, i.e., he would have taken the action on the basis solely of some valid reason.
In civil rights litigation, the Supreme Court has outlined the burden of proof rules for the pretext cases in Texas Community Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and for dual motivation cases in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Outside the labor law context, it is clear that in a pretext case, the plaintiff must present facts sufficient to support the inference that adverse action was taken because of an invalid reason; then the defendant has a burden of production to articulate a valid reason for the adverse action; then the burden of persuasion is upon the plaintiff to persuade the trier by a preponderance of the evidence that the invalid reason motivated the adverse action. See Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94. In a dual motivation case, the plaintiff must prove that an invalid reason motivated the adverse action; if the plaintiff sustains that burden, then the defendant has the opportunity to prove, as an affirmative defense, that it would have taken the adverse action in the absence of the invalid reason. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576.
The first complication in understanding how these two different modes of analysis apply to NLRB cases arises from the Board's insistence that the difference does not exist. See Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083, 1089 n. 13 (1980), enf'd on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). In Wright Line, the Board embraced the Mt. Healthy approach to dual motivation cases and announced that this approach would be applied "in all cases alleging violation of Section 8(a)(3) ... turning on employer motivation." Id. at 1089. The Board stated that "an additional benefit which will result from our use of the Mt. Healthy test [beyond avoiding the confusion of prior cases] is that the perceived significance in distinguishing between pretext and dual motivation cases will be obviated." Id. at 1089 n. 13. See also id. at 1083-84, nn. 4, 5. The Board's insistence that the two approaches need not be distinguished ignores the reality that they are different: pretext analysis determines what the true motivation actually was; dual motivation analysis determines what the employer's conduct would have been if the improper motivation had not been present. Moreover, the Supreme Court has explicitly recognized, in the context of a section 8(a)(3) violation, that dual motivation analysis is different from pretext analysis. See NLRB v. Transportation Management Corp., 462 U.S. 393, 400 n. 5, 103 S.Ct. 2469, 2473 n. 5, 76 L.Ed.2d 667.
Though the two forms of analysis are different, it is possible to analyze all motivation cases, as the Board prefers, using only the dual motivation approach. Once the General Counsel proves that unlawful motivation was present, the Board moves directly to the employer's affirmative defense. It does not pause to require the employer only to articulate a valid motivation and then place on the General Counsel the burden of proving that the articulated explanation is a pretext. This approach differs from motivation inquiry in pretext cases. In that context, the plaintiff starts with the obligation only to present facts raising an inference of unlawful motivation and, if a valid reason is articulated by the defendant, must prove that the unlawful reason was at least part of the motivation. With dual motivation analysis, the defendant need do nothing until the plaintiff has proved unlawful motivation, and then has the burden of proving its affirmative defense. 1
The Board formulated its version of Mt. Healthy in these terms:
First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.
Wright Line, 251 NLRB at 1089 (footnote omitted).
This formulation introduced a second complication. The Board used, without clarification, the phrase "prima facie showing," a phrase that sometimes means facts sufficient to send a disputed issue to a fact-finder, and sometimes means facts that persuade a trier of the elements of liability, thereby placing on the defendant the obligation to prove an affirmative defense, if he has one, or else suffer an adverse decision. As used in Wright Line, "prima facie showing" might be thought to mean only facts sufficient to send the case to the fact-finder, since the Board required only facts "sufficient to support the inference" of improper motivation. Id. (emphasis added). If the Board had meant to use "prima facie showing" in the sense of facts that prove the elements of liability, it might have been expected to refer to facts that not merely "support" the inference of improper motivation but that actually "establish" or "prove" or "show" such motivation. In Mt. Healthy, the Supreme Court had stated that the plaintiff in a dual motivation cases had the burden "to show" that his protected conduct was a motivating factor in the defendant's decision to take adverse action before the defendant could be obliged to present his affirmative defense. 429 U.S. at 287, 97 S.Ct. 576.
Despite the ambiguity in the wording of the Wright Line test, however, it is apparent that the Board uses the phrase "prima facie case" to mean the General Counsel's burden to prove by a preponderance of the evidence that protected activity was at least part of the motivation for the employer's adverse action. As the Board explained in an important footnote to Wright Line:
It should be noted that this shifting of burdens [placing on the employer the affirmative defense of showing what action it would have taken] does not undermine the established concept that the General Counsel must establish an unfair labor practice by a preponderance of the evidence. The shifting burden merely requires the employer to make out what is actually an affirmative defense ... to overcome the prima facie case of wrongful motive. Such a requirement does not shift the ultimate burden.
Wright Line, 251 NLRB at 1088, n. 11. Moreover, the Supreme Court, in a...
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