A Reexamination of the Role of Employer Motive Under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act

• Publication year: 1982

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 5, No.2SPRING 1982

A Reexamination of the Role of Employer Motive Under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

Paul N. Cox(fn*)

I. The Role of Motive - Generally. . . . . . . . . . . . . . . .. 164

A. Motive or Balancing - The Procedural Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 165

B. Motive and Section 8(a)(1). . . . . . . . . . . . . . . .. 170

C. Discrimination and Section 8(a)(3). . . . . . . . . . 176

II. Discrimination as "Cause" or "Response". . . . . . .. 180

III. Discrimination as Disparate Treatment. . . . . . . . . . 182

A. Disparate Treatment: A Definition. . . . . . . . . . 182

B. Disparate Treatment as Employer Action Motivated by Protected Activity and Disparate Treatment as Employer Action Intended to Discourage Protected Activity . . . . . . . . . . . . .. 193

(1) Intent as Foreseeable Consequence. . . . . . 193

(2) Intent as Employer Desire to Punish Union Status or Activity. . . . . . . . . . . . . . . . 194

C. On the Distinction Between the "Typical Discharge Case" and the "Employer Response to Protected Activity" Case. . . . . . . . . . . . . . . . . . . 206

(1) The Distinction in Applicable Policies: Impact on Free Employee Choice. . . . . . . . . . 210

(2) The Distinction in Applicable Policies: Presence or Absence of Employer Interests 213

(3) The Distinction in Applicable Policies: Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

(4) The Distinction Between Factual and Legal Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 222

IV. Disparate Treatment Reexamined: The Risk of Manipulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234

A. American Ship Building: Alternative Functions of Motive. . . . . . . . . . . . . . . . . . . . . . . . . . . . 234

B. Darlington: Illicit Motive or Impact Elsewhere? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239

C. Further Examples of Balancing in Fact: Republic and Fleetwood. . . . . . . . . . . . . . . . . . . . . . 243

V. The Conception Reassembled: The Employer's Impartiality Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 245

A. The Policy Justification for a Narrow Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 245

B. The Nature of the Interests Protected by a Narrow Impartiality Obligation. . . . . . . . . . . . . 251

VI. The Relationship Between a Policy of Free Employee Choice and Policies Protecting Group Action 255

VII. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264

The question of the role of employer motive in analysis of the unfair labor practices defined by Sections 8(a)(1) and (3) of the National Labor Relations Act(fn1) has troubled the National Labor Relations Board and the courts from the time of the enactment of that legislation.(fn2) Despite repeated efforts by the Supreme Court to authoritatively define that role(fn3) and repeated efforts by academics to advise the Court in the task,(fn4) motive's function remains confused-the subject of diverse viewpoints compromised in the cases by an analysis which submerges fundamental issues in the language of procedural burdens of proof.(fn5)

The submerging is not news. It has constituted the state of the law since the Supreme Court's 1967 decision in NLRB v. Great Dane Trailers, Inc.(fn6) But the phenomena has recently reemerged with a vengeance in the context of the appropriate test to be applied in determining employer section 8(a)(3) liability for employee discharges alleged to have been discriminatory within the meaning of that Section. The Board, which had long adhered to the view that an employer motivated even "in part" by an "anti-union animus" in discharging an employee violated the Act,(fn7) recently succumbed to repeated First Circuit criticism of that position(fn8) and adopted, in Wright Line,(fn9) a "but for" causation test of employer motive tied explicitly to an allocation of the burden of proof and derived from the Supreme Court's similar test in the constitutional arena:(fn10) [W]e 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 protected activity.(fn11) Wright Line presents anew old dilemmas concerning the meaning and efficacy of motive as a touchstone for analysis of an employer's conduct in the context of Sections 8(a)(1) and (3) unfair labor practices. The not immodest task I propose here is to attempt a reexamination of these questions, using Wright Line's adoption of the sine qua non causation test as both the occasion and vehicle for that reexamination.

I. The Role of Motive - Generally

It is with some trepidation that one approaches an outline of the role played by employer motive in the analysis of Sections 8(a)(1) and 8(a)(3). There is no want of scholarly discourse on the problem(fn12) and the problem is one of substantial complexity because the Supreme Court has not been consistent in its view of the matter.(fn13) It is nevertheless necessary to provide some background for the present inquiry and to hopefully suggest the perspective from which the inquiry is made.

A. Motive or Balancing - The Procedural Resolution

In American Ship Building Co. v. NLRB(fn14) an employer had locked out its employees following a bargaining impasse. The Board had found that the lockout was for the purpose of using economic pressure to obtain a settlement on terms favorable to the employer. Such an "offensive lockout"(fn15) in the Board's view, both interfered with the employees' exercise of Section 7 rights(fn16) in violation of Section 8(a)(1) of the Act and discriminated against the employees in violation of Section 8(a)(3) of the Act.

The Court used American Ship Building as the vehicle(fn17) for an attempted reconciliation of three inconsistent strands of doctrine. The first of these strands required, particularly with respect to Section 8(a)(3), that an employer's conduct be traceable to an anti-union animus.(fn18) Employer actions undertaken for legitimate business reasons did not, under this doctrine, violate the statute even where the action tended to discourage union membership or activity.(fn19) The second strand suggested, particularly but not exclusively(fn20) with respect to Section 8(a)(1), that an employer 'motivation for its actions was at best merely relevant to the question of violation.(fn21) That question turned, rather, upon a balancing of legitimate employer interests against the effect or impact of the employer's conduct upon union activity(fn22) or Section 7 interests.(fn23) The accommodation of these conflicting interests was a matter to be left to the Board in the exercise of its supposed expertise.(fn24) The third strand of doctrine was not explicitly concerned with Sections 8(a)(1) or (3), but was nevertheless implicated by the bargaining context in which American Ship arose,(fn25) and by the Court's varying willingness to rely upon an assumption of Board expertise.(fn26) It was that the Board was not authorized by Congress to "balance" economic weapons in, at least, contexts in which the organizational rights of employees are not directly implicated.(fn27)

Laid upon the contradictory fabric of these strands of doctrine was the further unresolved problem of the relationship between Sections 8(a)(1) and (3), because although generally motive was not relevant in the context of 8(a)(1) even if relevant in the context of 8(a)(3),(fn28) it was not clear when 8(a)(1) could be invoked independently of 8(a)(3).(fn29)

The Court's reconciliation was to invoke motive as the controlling question in both 8(a)(1) and 8(a)(3) cases.(fn30) Although the Court conceded that the lockout tended to interfere both with the right to bargain (by punishing employees for demanding terms inconsistent with the employer's bargaining position) and with the right to strike (by preempting that right), neither interference was of a type so "destructive" of employee rights to make inquiry into employer motivation under Section 8(a)(1) unnecessary:(fn31) "Proper analysis of the problem demands that the simple intent is to support the employer's bargaining position . . . be distinguished from a hostility to the process of collective bargaining which could suffice to render a lockout unlawful."(fn32) Moreover, the court noted that a violation of Section 8(a)(3) "will normally turn on the employer's motivation."(fn33) Although there is a "natural tendency" in many employer actions to discourage union membership or activity, 8(a)(3) does not prohibit "actions taken to serve legitimate business interests."(fn34) The Board must, therefore, "find that the employer acted for a proscribed purpose."(fn35)

To that rule the Court nevertheless postulated an exception designed to accommodate the "balancing" strand of its earlier doctrine: "There are some practices which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other...