Trustees of Forbes Library v. Labor Relations Commission

• Decision Date: 12 November 1981
• Parties: , 110 L.R.R.M. (BNA) 3381, 95 Lab.Cas. P 55,374 TRUSTEES OF FORBES LIBRARY v. LABOR RELATIONS COMMISSION et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 124

428 N.E.2d 124

384 Mass. 559, 110 L.R.R.M. (BNA) 3381,

95 Lab.Cas. P 55,374

TRUSTEES OF FORBES LIBRARY v. LABOR RELATIONS COMMISSION et al.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Sept. 16, 1981.

Decided Nov. 12, 1981.

Edward D. Etheredge, Northampton, for plaintiff.

Jean Strauten Driscoll, Boston, for defendants.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

HENNESSEY, Chief Justice.

This is an appeal from a Superior Court judgment affirming a Labor Relations Commission (commission) decision that held that Forbes Library violated the labor laws, G. L. c. 150A, §§ 3, 4(1), 4(3), when it discharged Richard Steward, a media technician. ¹ We conclude that the result reached by the commission was justified under any of the legal standards proposed by the parties, and was supported by substantial evidence. Therefore, we affirm the judgment of the Superior Court.

Richard Steward began work for the library in 1976. His supervisors were Glenda Henery Donovan, head of the media department, and Stanley Greenberg, library director. The final decision to fire Steward was made by the library's three-member board of trustees, acting on the recommendations of the supervisors Donovan and Greenberg.

Problems between Steward and his supervisors began in the summer of 1977. Steward began to complain about wages and work assignments, and met with other employees to discuss his complaints and solicit interest in unionization. He also retained an attorney to determine whether library workers were public employees. These activities were the subjects of a number of disputes between Steward and his supervisors.

In March, 1978, Steward arranged a meeting with one of the trustees, Katherine Finn, to present his complaints and proposals. This angered Greenberg, and relations deteriorated rapidly. Greenberg solicited letters of complaint about Steward from other employees, and he and Donovan met several times with the trustees to express their displeasure with Steward.

In May, the trustees held a meeting at which both sides aired their views. Donovan charged Steward with "subversive activities" and an inability to "accept authority." Under these headings she listed several infractions of library rules, as well as Steward's attempts to organize library employees and his objections to pay and terms of employment. Steward responded with explanations and denials. Several other employees spoke on each side, and a number of library patrons wrote in support of Steward. After the meeting, Greenberg sent the trustees a summary of Donovan's charges, in which he recommended that Steward be fired.

In early June, the trustees voted two-to-one to discharge Steward. Steward subsequently filed a charge with the commission. The commission issued an unfair labor practice complaint, conducted a hearing, and concluded that the trustees had violated the labor laws. It ordered the trustees to reinstate Steward with back pay. A three-judge panel of the Superior Court affirmed and the trustees have appealed. We transferred the case to this court on our own motion.

1. Standard of evaluation and burden of proof. The trustees first argue that the commission should have applied a "dual motive" standard in its evaluation of their decision. The commission dismissed the reasons offered by the trustees to explain their action as mere pretexts, and concluded that Steward had been discharged solely because he had engaged in activities protected by the labor laws. See G. L. c. 150A, §§ 3, 4(1), 4(3). The trustees point out that there was evidence of mixed motives-some lawful and some unlawful. They argue that the commission, in its single-motive analysis, gave inadequate consideration to the trustees' asserted lawful motives.

We believe that the commission's findings justify its decision under any of the standards argued by the parties; therefore, we need not choose among standards in order to resolve this case. We think it appropriate, however, to outline a standard and an accompanying burden of proof, so that the commission will have clear guidelines for its future decisions. We conclude that the commission should not reinstate an employee unless it finds that the employee would not have been discharged but for his protected activity. The burden of proof under this standard should follow the pattern established in our sex discrimination cases; the employee must bear the ultimate burden of persuasion, but may rely on a prima facie showing to shift to the employer a limited burden of producing evidence. School Comm. of Braintree v. Massachusetts Comm'n Against Discrimination, 377 Mass. 424, 386 N.E.2d 1251 (1979). Smith College v. Massachusetts Comm'n Against Discrimination, 376 Mass. 221, 380 N.E.2d 121 (1978). Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 355 N.E.2d 309 (1976).

Courts in other jurisdictions have developed at least two standards for evaluating motivation when an employer accused of unlawful discharge claims to have had independent, lawful reasons to fire its employees. The first standard to appear was the "in part" test, which holds that the employer has violated the labor laws if it was motivated "even in part" by unlawful sentiments. See, e. g., NLRB v. Gogin, 575 F.2d 596, 601 (7th Cir. 1978); M.S.P. Indus., Inc. v. NLRB, 568 F.2d 166, 173-174 (10th Cir. 1977); NLRB v. Jamestown Sterling Corp., 211 F.2d 725, 726 (2d Cir. 1954). ² If a court applying this test discerns an unlawful motive, it will not even consider whether the employer might have had another, lawful cause for discharge.

A second standard used to resolve dual motive cases is the "dominant motive," or "but for" test. If the employer would not have discharged the employee but for the employee's protected activities, the discharge is unlawful and the employee must be reinstated. If, however, a lawful cause would have led the employer to the same conclusion even in the absence of protected conduct, the discharge must not be disturbed. E. g., NLRB v. Eastern Smelting & Ref. Corp., 598 F.2d 666, 670-671 (1st Cir. 1979); Midwest Regional Joint Bd., Amalgamated Clothing Workers of America v. NLRB, 564 F.2d 434, 440 (D.C.Cir.1977); Firestone Tire & Rubber Co. v. NLRB, 539 F.2d 1335, 1337 (4th Cir. 1976); Mead & Mount Constr. Co. v. NLRB, 411 F.2d 1154, 1157 (8th Cir. 1969). ³

We prefer the "but for" standard. As the Supreme Court pointed out in an unlawful discharge case arising under the First Amendment, an "in part" test of motive is often overprotective. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-286, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977). See also Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 416-417, 99 S.Ct. 693, 697-98, 58 L.Ed.2d 619 (1979). If unlawful sentiments contribute in any material way to an employer's desire to fire an employee, the "in part" test shields the employee from discharge despite unsatisfactory work or flagrant misbehavior. This result may cut too far into the employer's legitimate business interests. Id. Further, the "in part" test of motive favors employees who engage in protected activity over those who do not. Id. A "but for" test strikes a more equitable balance among the interests at stake; the employer is not forced to accept an unsatisfactory employee, and a union organizer is subject to discipline to the same extent as other employees.

Having stated our preference for the "but for" standard, we now turn to the question of burden of proof. A "but for" standard calls for special attention to the burden of proof of unlawful motivation. Motivation is a subjective issue, seldom susceptible to direct proof. Moreover, a "but for" standard amplifies difficulties of proof, because the parties must address lawful as well as unlawful motives.

Courts that apply a "but for" test have varied in their allocations of the burden of proof. Some hold that the employee, or the labor commission as charging party, bears the entire burden of proof. The charging party must prove both that the employer harbored an unlawful motive, and that but for that motive, the employee would not have been discharged. E. g., Mead & Mount Constr. Co. v. NLRB, 411 F.2d 1154, 1157 (8th Cir. 1969); NLRB v. Billen Shoe Co., 397 F.2d 801, 803 (1st Cir. 1968). This is a heavy burden for the charging party, who must address the opponent's frame of mind, and prove the broad negative proposition that no lawful reason motivated the discharge decision.

The employee's problems of proof could be alleviated by a rule placing the burden of persuasion on the employer; once the employee had established that the employer had an improper motive and that this motive contributed at least in part to the discharge, the burden would shift to the employer. To escape liability, the employer would then have to prove by a preponderance of evidence that other, lawful considerations would have led it to fire the employee in any event. See NLRB v. Eastern Smelting & Ref. Corp., 598 F.2d 666, 671 (1st Cir. 1979); Statler Indus., Inc. v. NLRB, 644 F.2d 902, 905 (1st Cir. 1981). But see Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 141-142 (1st Cir. 1981); NLRB v. Amber Delivery Serv., Inc., 651 F.2d 57, 68-69 (1st Cir. 1981). We have adopted an analogous rule in cases involving a bailee's liability for lost or damaged goods. When goods are damaged in the hands of a bailee, the bailee often knows what happened and what care was taken to prevent accident. Because the bailor is not likely to have this information, we have relieved the bailor of its traditional burden of proving the bailee's negligence, and held instead that the bailee must prove that it exercised due care. Knowles v. Gilchrist Co., 362 Mass. 642, 651-652, 289 N.E.2d 879 (1972).

When an employer is charged with retaliation against union activity, however, such a complete shift may not be appropriate. The labor...