Labor and Employment Law - Uncertainty over Burden of Proof for Mixed Motive Employee Discharge

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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. …