NATIONAL LABOR RELATIONS BOARD, PETITIONER v. NEW YORK UNIVERSITY MEDICAL CENTER, ET AL. No. 82-1705 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the National Labor Relations Board, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit PARTIES TO THE PROCEEDINGS Leigh Benin, Faustino Vargas, and Laszlo Berkovits were intervenors in the court of appeals and therefore are respondents in this Court. TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-26a) is not yet reported. The decision and order of the National Labor Relations Board (App. C, infra, 28a-31a) and the decision of the administrative law judge (App. C, infra, 32a-44a) are reported at 261 N.L.R.B. no. 118. JURISDICTION The judgment of the court of appeals (App. B, infra, 27a) was entered on March 7, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Section 7 of the National Labor Relations Act, 29 U.S.C. 157, provides in pertinent part: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * *. Section 8(a) of the National Labor Relations Act, 29 U.S.C. 158(a), provides in pertinent part: It shall be an unfair labor practice for an employer -- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section (7) of this title * * *. Section 10(c) of the National Labor Relations Act, 29 U.S.C. 160(c), provides in pertinent part: * * * If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this (Act): * * * No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause * * *. QUESTION PRESENTED Whether the National Labor Relations Board properly concluded that an employer violates Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. 158(a)(1), if its hostility to certain employees' protected activities is shown, by a preponderance of the evidence, to be a motivating factor in its decision to discharge and suspend those employees, and the employer cannot establish by a preponderance of the evidence that it would have taken the same action for legitimate reasons, absent the employees' protected activities. STATEMENT 1. Respondent New York University Medical Center provides health care services in New York, New York (App. C, infra, 33a). In September 1979, elections were held by the union at the Center to choose delegates to the national convention of the union's parent organization. A group of dissident union members, including employees Faustino Vargas and Leigh Benin, who also belonged to a political organization called the Committee Against Racism ("CAR"), ran for delegate positions against another slate of candidates which included the incumbent officers of the union (id. at 34a). On September 21, 24 and 25, employee Benin and, on one occasion, employee Vargas distributed leaflets to employees encouraging them to support the dissident slate of candidates in the union election. One of the leaflets they distributed addressed issues of concern to employees, including loss of jobs, inflation and alleged racial segregation within the union. This leaflet also contained accusations that the respondent used its security guards as a "fascist gestapo" to conduct discriminatory searches of black and Hispanic workers (App. A, infra, 3a-4a; App. C, infra, 34a-35a). On September 28, respondent issued written disciplinary warnings to Benin and Vargas for their distribtuion of the leaflets. The warning letters stated that any repetition of such conduct would result in "appropriate disciplinary action, including suspension or discharge" (id. at 35a). In early October, Benin, Vargas and employee Laszlo Berkovits took part in the preparation and distribution of another leaflet, which discussed the results of the recent balloting for convention delegates, stated that Benin and Vargas had received written warnings for their distribution of a previous leaflet, and renewed the allegation that "the N.Y.U. management is using the security guards for fascist gestapo tactics to intimidate black and Spanish workers" (App. C, infra, 35a). On October 5, Benin was notified by respondent that he was being suspended from work without pay because of his participation in the distribution of this leaflet (id. at 35a). On October 8, Benin, Vargas and several other individuals picketed the home of respondent's assistant administrator to protest Benin's suspension (App. C, infra, 35a). Vargas and Benin did not go onto the assistant administrator's property at any time during the picketing (ibid.). On October 11, respondent discharged Benin and Vargas in writing that this disciplinary action was based in part on their participation in the picketing of the assistant administrator's home and that the employees' "recent activity in distributing leaflets * * * was also considered in reaching the decision" to discipline them (App. A, infra, 5a-6a). Respondent also issued a written warning to employee Berkovits on October 11 for his involvement in the distribution of the most recent leaflet (App. C, infra, 36a). The Board's General Counsel subsequently filed a complaint alleging that respondent's disciplinary measures violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. 158(a)(1). 2. The administrative law judge ("ALJ") found that respondent had violated Section 8(a)(1) of the Act by issuing disciplinary warnings to Benin, Vargas and Berkovits, by suspending Benin and Vargas, and by discharging Benin, because they engaged in the protected activity of distributing leaflets concerning an intra-union election campaign (App. C, infra, 32a-44a). The ALJ recommended that Benin be reinstated with back pay, that Benin and Vargas be reimbursed for wages lost during their periods of suspension, and that the disciplinary warnings issued to Benin, Vargas and Berkovits be expunged from respondent's personnel files (id. at 40a-44a). In reaching his conclusion that the discharge of Benin and suspension of Vargas were unlawful, the ALJ expressly relied (App. C, infra, 38a-39a) on the Board's decision in Wright Line, a Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, 662 f.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). In Wright Line the Board explained that, in determining whether an employer's action violated Section 8(a)(3) of the Act, 29 U.S.C. 158(a)(3), /1/ it would first require the General Counsel to show that the employee's protected activities were a "motivating factor" in the employer's decision to take adverse action against the employee. If the General Counsel made this showing, the Board -- following this Court's decision in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) -- ruled that the employer nevertheless could avoid an unfair labor practice finding if it proved, by a preponderance of the evidence, that it would have taken the adverse action even if the employee had not engaged in protected activities. 251 N.L.R.B. at 1089. Here, after reviewing the evidence presented by both sides, the ALJ found that the General Counsel had sustained his burden of establishing that the employees' protected leafleting activity was a motivating factor in the discharge of Benin and the suspension of Vargas (App. C, infra, 38a). The ALJ further found that respondent had failed to rebut the General Counsel's showing by establishing that it would have discharged Benin and suspended Vargas if they had engaged only in picketing activity (id. at 39a). The ALJ relied on the fact that dual reasons were stated in the disciplinary papers given to the employees, and on respondent's testimony that it used a progressive disciplinary system under which the picketing alone would not have justified the sanctions of discharge and suspension (id. at 38a-39a). The ALJ found it unnecessary to reach the issue of whether the employees' picketing activity was protected under the Act (id. at 38a). The Board affirmed the decision of the ALJ and adopted his recommended order (App. C, infra, 28a-31a). 3. The court of appeals sustained the Board's findings that the employees' leafleting activity was protected by Section 7 of the Act, 29 U.S.C. 157, and that respondent's suspension of Benin and issuance of warning letters to Benin, Vargas and Berkovits for the distribution of the leaflets violated Section 8(a)(1) of the Act, 29 U.S.C. 158(a)(1) (App. A, infra, 1a-26a). However, the court remanded the case to the Board for reconsideration of the conclusion that respondent's discharge of Benin and suspension of Vargas violated Section 8(a)(1) of the Act. The court disagreed with the Board's Wright Line allocation of the burden of proof, holding that, while a burden of production may properly be placed on the employer once the General Counsel has shown the employer's unlawful motivation, shifting the burden of persuasion to the employer is inconsistent with the Act (App. A, infra, 13a-26a). Since the court was "not persuaded that, had the Board imposed a burden of production as opposed to a burden of persuasion on the employer, it would have arrived at the same result" with respect to the discharge of Benin and suspension of Vargas (id. at 25a), it concluded that a remand was necessary. REASONS FOR GRANTING THE PETITION On November 15, 1982, this Court granted the Board's petition for certiorari in NLRB v. Transportation Management Corp., No. 82-168, a case in which the Board seeks review of a First Circuit decision rejecting the burden-shifting aspect of the Board's Wright Line test. /2/ Oral argument was heard in Transportation Management on March 28, 1983. Here, the Second Circuit has likewise rejected the burden-shifting aspect of the Board's Wright Line test, /3/ in concluding that only the burden of production, not the burden of persuasion, could shift to respondent after the General Counsel establishes that an employee's protected activity was a motivating factor in the employer's decision to take adverse action. As the remand makes clear, the court considered the allocation of burdens of proof to be material. Thus, this case presents the same issue that will be resolved by the Court in Transportation Management. CONCLUSION The petition for a writ of certiorari should be held and disposed of in light of the Court's decision in NLRB v. Transportation Management Corp., No. 82-168. Respectfully submitted. REX E. LEE Solicitor General WILLIAM A. LUBBERS General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel LAWRENCE E. BLATNIK Attorney National Labor Relations Board APRIL 1983 /1/ The Board stated that the same test would apply to "violations of Section 8(a)(1) turning on employer motivation." 251 N.L.R.B. at 1089. /2/ A copy of our petition in Transportation Management has been sent to respondents. /3/ In its decision, the Second Circuit expressly relied on First Circuit decisions, as well as those of the Third and Seventh Circuits (App. A, infra, 15a-17a, 25a n.15). The First Circuit initially expressed its disapproval of the Board's Wright Line test in the proceedings to review the Wright Line order. 662 F.2d at 904-907. (Because the First Circuit believed that the shifting of the burden of proof was not material to the outcome of Wright Line itself, it enforced the Board's order in that case (id. at 907-909). The First Circuit in NLRB v. Transportation Management Corp., 674 F.2d 130, 131 (1982), cert. granted, No. 82-168 (Nov. 15, 1982), and the Third Circuit in Behring International, Inc. v. NLRB, 675 F.2d 83, 89 (1982), petition for cert. pending, No. 82-438 (filed Sept. 13, 1982), have relied on the First Circuit's discussion in the Wright Line case. Appendix Omitted