Modern discrimination theory and the National Labor Relations Act.

• Author: White, Rebecca Hanner

INTRODUCTION

On-the-job discrimination is prohibited, on various grounds, by an ever increasing number of federal laws. The National Labor Relations Act (NLRA),(1) however, which protects employees' rights to form, join, and assist unions, to collectively bargain with their employers, to engage in other forms of concerted activity for mutual aid or protection, and to refrain from all or any of these activities, pioneered the way.(2) The NLRA makes it unlawful for an employer to encourage or discourage union membership by discrimination.(3) It also prohibits interference, restraint, or coercion by employers,(4) which the United States Supreme Court tells us occurs when an employer "discriminates" against concerted activity.(5)

For forty years, the Court studied the question of employment discrimination almost exclusively through the lens of the NLRA. It struggled with the proper role that antiunion motive or animus should play in resolving disputes under the statute and with when and how to balance employees' statutory rights against an employer's interest in managing his business.(6)

In the mid-1960s, things changed. Congress enacted Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment because of an employee's race, color, religion, sex, or national origin.(7) In the thirty years since the enactment of Title VII, the Supreme Court has honed the meaning of unlawful discrimination primarily under that statute.(8)

Today, for many lawyers, and certainly for most judges, federal employment discrimination cases comprise the bulk of "labor" cases handled, with NLRA cases a relatively small part of the employment law workload.(9) The labor bar's and the judiciary's increased--if not frequently greater--familiarity with employment discrimination doctrine would seem to make inevitable some importation into the NLRA of the discrimination concepts developed under Title VII.(10) After all, both statutes wrestle with how to protect employees' statutory rights, while at the same time permitting employers the managerial freedom necessary to run their businesses.

What is surprising is when this borrowing has, and has not, occurred. Although the courts have not adopted a fully unified analytical model of prohibited discrimination under these statutes, they have, at times, considered discrimination under the NLRA in distinctly Title VII-like terms. This trend has occurred most recently in cases arising under section 8(a)(1) of the NLRA.(11) The lower courts in these recent cases have refused to find unfair labor practices to exist absent disparate treatment of union activity.(12)

At the same time, questions of group-based discrimination under section 8(a)(3) of the NLRA continue to be resolved under the animus-based analysis developed by the Supreme Court in the 1950s and 1960s.(13) This is so even though several of the Court's section 8(a)(3) decisions today may be seen as a primitive groping toward disparate impact analysis,(14) a theory that finds discrimination actionable in the absence of unlawful motive. This theory of discrimination, adopted by the Court under Title VII in its 1971 decision in Griggs v. Duke Power,(15) has not yet made its way fully into section 8(a)(3).(16)

This Article explores the concept of discrimination under the NLRA.(17) Specifically, it examines discrimination under that statute through the lens of Title VII, an approach that brings a fresh perspective to doctrine long considered settled. The purpose of this comparison is to explore the extent to which Title VII's discrimination concepts make sense under the NLRA. This analysis focuses on three specific areas.

First, it examines discrimination cases under section 8(a)(1), concluding that the lower courts are wrong to apply Title VII concepts and to insist that without disparate treatment of union activities, no unlawful discrimination has occurred. Title VII contains no exact counterpart to section 8(a)(1). Judicial insistence that discrimination under that section fit within Title VII's disparate treatment or disparate impact paradigms reflects an inadequate understanding of the role section 8(a)(1) plays in the NLRA's statutory scheme.

Second, the article contrasts the "animus" requirement of section 8(a)(3) with unlawful motive under Title VII. The two are not synonymous. Frequently, employment decisions overtly based on union activities are not considered unlawfully motivated under the NLRA, even though employment decisions premised on race or gender rarely will be lawful under Title VII. The NLRA's language and structure, however, require its distinctive approach to animus, an approach inconsistent with the wording and the purposes of Title VII.

Third, the article considers "systemic" claims of discrimination under section 8(a)(3)--those involving an employer's structural decisions and its use of economic weapons. In this area, borrowing from Title VII would be useful, although it has not as yet occurred. When no animus is present, these cases should be considered under disparate impact doctrine. Indeed, the Court's section 8(a)(3) jurisprudence, a confusing and immature amalgam of treatment and impact theory, could be discarded and profitably replaced by Title VII's analytical structure.

The objective of this Article is to provide a theoretical framework for thinking about discrimination concepts under the NLRA in a way that recognizes the inevitable influence of Title VII doctrine. In lieu of the hit-or-miss borrowing from Title VII that occurs today, this Article offers a blueprint for developing a more unified and analytically coherent approach to unlawful discrimination under the NLRA.

1. DISCRIMINATION CONCEPTS AND THE NATIONAL LABOR RELATIONS ACT

   For this Article's purposes, two sections of the NLRA are important. Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce his employees in the exercise of their rights under the statute.(18) As explained below, discrimination against concerted activity can violate section 8(a)(1).(19)

   Questions of discrimination, however, arise most frequently under section 8(a)(3) of the NLRA.(20) That section makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization."(21) Accordingly, for a section 8(a)(3) violation to exist, there must be not only discrimination, but that discrimination must also encourage or discourage union activities.(22) The Supreme Court has found an additional requirement in the statute: the discrimination must be for the purpose of encouraging or discouraging union activities.(23)

   The Court's analytical approach to discrimination questions under section 8(a)(1) varies from its approach under section 8(a)(3).(24) Additionally, the Court has determined that some employer discrimination may be challenged only under section 8(a)(3), with that section's antiunion motive requirement.(25) The distinctions between the two statutory sections and the analytical model the Court has adopted for each are explored below.

2. INTERFERENCE, RESTRAINT, OR COERCION: THE PROHIBITIONS OF SECTIONS 8(a)(1)

   When an employer commits an unfair labor practice under any section of the NLRA, that misconduct also violates section 8(a)(1) derivatively because an unfair labor practice will interfere with, restrain, or coerce employees in the exercise of their section 7 rights.(26) Sometimes, however, employer conduct will independently violate section 8(a)(1) without regard to whether any other section of the Act has been violated.(27) The discussion of section 8(a)(1) that follows addresses these independent violations.

   Section 8(a)(1) has its primary influence at the organizational stage.(28) Perhaps this is so because it is at this stage of the union-employer relationship that employees are most vulnerable.(29) For the statute's protections to be meaningful, unionization activities must be protected against even well-intentioned employer conduct that chills protected acts.(30) After securing their representational rights, employees have, at least in theory, a counterbalance to the employer's power, and section 8(a)(1)'s protections are less needed.(31)

   Alternatively, it could be that section 8(a)(1)'s rather limited role is explained better by the Court's reluctance to intrude too deeply into either managerial prerogatives or economic warfare.(32) Because the Court has viewed section 8(a)(1) as permitting a candid weighing of the employer's need to act,(33) extending that approach to the full range of employment or bargaining decisions would give the National Labor Relations Board (the Board) and the courts unprecedented control over the employment relationship.

   1. The Section 8(a)(1) Balancing Test

      In deciding whether employer conduct has violated section 8(a)(1), the Court employs a balancing test.(34) The Court weighs the effect of the conduct on employees' section 7 rights against the employer's legitimate interests in engaging in the conduct.

      For example, in Republic Aviation Corp. v. NLRB,(35) the Court held that an employer's rule prohibiting solicitation by employees during nonwork time violated section 8(a)(1).(36) The Court found that banning solicitation at the workplace, a place "uniquely appropriate" for such activity,(37) would dilute the section right seriously.(38) Permitting solicitation during nonwork time, moreover, would not impinge seriously on the employer's managerial interests in maintaining production and discipline.(39) Although "working time is for work" and a rule banning solicitation by employees during working time is thus presumptively lawful, the balance tips the other way when nonwork time is at issue.(40)

      When "nonemployee union organizers,"(41) as opposed to employees, engage in solicitation or distribution on private...