Labor and employment law - uncertainty over burden of proof for mixed motive employee discharge.

• Author: Eisenmann, Megan E.

Labor and Employment Law--Uncertainty Over Burden of Proof for Mixed Motive Employee Discharge--Hospital Cristo Redentor, Inc. v. NLRB, 488 F.3d 513 (1st Cir. 2007)

In 1977, the United States Supreme Court espoused a framework to determine whether impermissibly discharging an employee due to his or her union activities constitutes an unfair labor practice. (1) This framework requires that the employee first prove that his or her labor union activities were a substantial, motivating factor in the discharge; then the burden of proof shifts to the employer to show that the employee's union participation was immaterial to the discharge. (2) In Hospital Cristo Redentor, Inc. v. NLRB, (3) the Court of Appeals for the First Circuit analyzed whether the Hospital Cristo Redentor (Hospital) impermissibly fired its employee for his union involvement. (4) Once the General Counsel of the National Labor Relations Board (NLRB or Board) showed the employee's union activity was a motivating factor in his discharge, the Hospital bore the burden of proof to demonstrate that they would have fired the employee regardless of his participation in the labor union. (5) The court determined that the Hospital violated the National Labor Relations Act (NLRA) by firing an employee in retaliation for his union activities. (6)

Carlos Garcia Santiago started working for the Hospital as a registered nurse in February 1995. (7) In 1998, the NLRB allowed a union to exclusively negotiate for a group of registered nurses. (8) After becoming a union delegate in 1999, Santiago received his first disciplinary warning from his supervisor. (9) Between 1999 and 2000, the Hospital issued a series of disciplinary warnings to Santiago noting attitude problems, specifically cautioning him to cease calling other employees' attention to poor working conditions. (10)

In March 2001, Santiago received another warning about his attitude after failing to follow Hospital protocol when correcting a mistake on a patient's chart. (11) On April 23, 2001, Santiago received further warnings regarding his conduct. (12) Apparently due to this series of warnings and Santiago's absence from a shift while he attended a family member's medical emergency, the Hospital suspended and eventually discharged Santiago on October 19, 2001. (13)

An administrative law judge for the NLRB Division of Judges determined that the Hospital had committed an unfair labor practice by violating sections 8(a)(1) and 8(a)(3) of the NLRA. (14) The NLRB affirmed this finding. (15) On appeal to the First Circuit, the Hospital alleged that the NLRB's finding was unsubstantiated. (16) The First Circuit held that the Board's decision was supported by the facts and that the Hospital did not prove it would have dismissed Santiago irrespective of his participation in a union. (17)

Precedent concerning the mixed-motive employer originated in Mount Healthy City School District Board of Education v. Doyle. (18) In Doyle, the Court described the employee's burden of proof to show that his constitutionally protected activity was a substantial, motivating factor of his discharge. (19) If the employee can show that his or her protected activity was a motivating factor, the burden then shifts to the employer to prove that it would have reached the same decision and fired the employee regardless of the protected involvement. (20)

The NLRB adopted the Doyle test in a subsequent case, Wright Line, (21) in which it found that the employer had not satisfied its burden of proof. (22) The Board's use of Doyle's burden-shifting framework continued and has become known as the Wright Line test. (23) Although the First Circuit rejected the Wright Line burden-shifting approach, the Supreme Court upheld the Wright Line test for all future mixed-motive cases in NLRB v. Transportation Management Corp. (24) The Court noted that the General Counsel's burden of proof is a burden of production, not persuasion, that shifts the burden of proof to the employer when satisfied. (25) Despite noting that the First, Second, and Third Circuits failed to employ the test used in Wright Line, the Court solidified this mixed-motive test in Transportation Management by instructing courts to use the Wright Line test in future mixed-motive cases. (26)

The meaning of burden of proof in Wright Line and Transportation Management--specifically whether it referred to the burden of persuasion or burden of production--came under scrutiny in Director, Office of Workers' Compensation Programs v. Greenwich Collieries. (27) The Court set aside its conclusion in Transportation Management that burden of proof meant burden of production, and determined that burden of proof means burden of persuasion under section 7(c) of the Administrative Procedure Act. (28) The First Circuit also uses the burden-shifting language from Greenwich Collieries to require that the Board show union participation was a motivating factor of the employee's dismissal, and if so, to shift the burden of proof to the employer to show that it would have discharged the employee irrespective of union activity. (29)

In Hospital Cristo, the First Circuit considered whether the General Counsel of the NLRB had met its burden of proof under Wright Line and Greenwich Collieries. (30) After reviewing the record of anti-union animus against Santiago, the First Circuit determined that the General Counsel successfully demonstrated that Santiago's union activities were a substantial or motivating factor of his dismissal. (31) The court then placed the onus on the Hospital to establish that it would have discharged Santiago regardless of his union involvement. (32) Although the Hospital stressed how Santiago's improper behavior was more than adequate grounds for termination, the court concluded that its arguments were a pretext for discrimination and insufficient in light of the Hospital's anti-union animus. (33)

The First Circuit in Hospital Cristo incorrectly applied Greenwich Collieries by failing to definitively place a burden of persuasion on the NLRB General Counsel. (34) Although the First Circuit strongly condemned the Wright Line test prior to Transportation Management, (35) the court had to apply its elements in Hospital Cristo. (36) The court noted that the General Counsel of the Board must show, but not persuade, that a motivating factor of discharge was union involvement. (37) Thus, the court imposed the burden of production on the General Counsel to merely produce evidence showing that union animus could be a motivating factor, in accordance with Transportation Management, but not the burden of persuasion to prove that union animus actually was a motivating factor, in accordance with Greenwich Collieries. (38) The First Circuit's decision in Hospital Cristo conflicts with Greenwich Collieries, which equated burden of proof with burden of persuasion. (39)

The record in Hospital Cristo clearly indicated that the Hospital repeatedly targeted and ultimately discharged Santiago for participating in a labor union. (40) Nevertheless, under the standard set forth in Greenwich Collieries, the General Counsel should have had the burden of persuasion to show that the union connection was a motivating factor in his discharge in order to shift the burden of proof. (41) Here, the court maintained that the Board did not have to accept plausible explanations proffered by the Hospital for the discharge before shifting the burden of proof, allowing the General...