National Labor Relations Board v. Transportation Management Corporation

PETITIONER: National Labor Relations Board
RESPONDENT: Transportation Management Corporation
LOCATION: PACIFIC GAS & ELECTRIC CO.

DOCKET NO.: 82-168
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 462 US 393 (1983)
ARGUED: Mar 28, 1983
DECIDED: Jun 13, 1983

ADVOCATES:
Lawrence G. Wallace - on behalf of the Petitioner
Martin Ames - on behalf of the Respondent

Facts of the case

Question

Media for National Labor Relations Board v. Transportation Management Corporation

Audio Transcription for Oral Argument - March 28, 1983 in National Labor Relations Board v. Transportation Management Corporation

Warren E. Burger:

We will hear arguments first this morning in National Labor Relations Board against Transportation Management Corporation.

Mr. Wallace, you may proceed whenever you are ready.

Lawrence G. Wallace:

Mr. Chief Justice, and may it please the Court, for the third time this term I am here to discuss burdens of persuasion and burdens of production, this time in the context of the National Labor Relations Board's allocation of burdens of proof in a proceeding under Section 8(a)(3) of the Act charging a discharge of an employee for anti-union animus.

If the Court please, I would like to proceed with my argument first by describing briefly but comprehensively the overall allocation of burdens of proof in such a proceeding which we believe to be correct and which we believe to be a fair distillation of the Board's decisions and practice.

I do this because we believe that much of the confusion in this area stems from incomplete analysis and from an effort to force all categories of cases into an analytical framework that suits only some categories of cases.

And after that, I would like to focus on the aspect of the allocation that is at issue here, and show that as to this, the Board faithfully follows the Congressional intent, and that its practice is consistent with principles reflected in this Court's decisions, and then show that these principles were properly applied to the facts of this case.

William H. Rehnquist:

Have you decided what time you will receive questions from the bench?

Lawrence G. Wallace:

Well, of course, I am just explaining why I am not starting with the facts, Mr. Justice.

Questions from the bench are welcome at any time.

0 [Generallaughter.]

Warren E. Burger:

Well, at least they are received, even if not welcomed.

0 [Generallaughter.]

Lawrence G. Wallace:

To begin with in such a proceeding the general counsel, of course, has a burden of production and a burden of persuasion to show that... we'll talk about discharges here, although this applies to any 8(a)(3) case and to many 8(a)(1) cases involving other adverse action, but to show that the discharge was improperly motivated, that anti-union animus generally was a motivating factor in the meaning of this Court's decision.

If he establishes that with his evidence, and that evidence is uncontroverted, of course, he has established his case.

So in that sense, if he... if his evidence establishes that, there is a burden of production on the employer to controvert it in some way, and the usual manner of controverting it is to show that there was a legitimate reason or reasons for the discharge.

There may be other evidence introduced as well by the employer.

That evidence usually serves two purposes, the evidence of a legitimate reason.

One, to rebut the evidence that there was an improper motivation, or two, to show that the discharge would have occurred in any event even in the absence of the improper motivation.

Occasionally, that evidence is introduced for only the latter purpose.

There are cases, and we have cited some, in which the employer admits that an improper purpose was a motivating factor, but nonetheless defends on the ground that the same result would have been reached in any event.

Now, if what the employer introduces is inherently incredible, or insubstantial on its face, that doesn't really change the case, and in that sense his burden of production has not been satisfied.

But if he has introduced something plausible, as was the case here, he has satisfied that burden of production, and then the burden of persuasion remains on the general counsel to do at least one of two things.

One, he might try to persuade the tribunal that the proffered legitimate reasons, and I use "legitimate" only in the sense of non-prohibited, not a value judgment, that the proffered legitimate reasons were not in fact a motivating factor at all.

If he carries that burden of persuasion, that is a true pretext case, and he has shown that only the improper motivation was present, and the case remains what it was before that evidence was introduced.

But if he is unable to do that, then the question is whether in light of the evidence introduced by the employer, the general counsel can still satisfy the burden of persuasion which is on him by a preponderance of the evidence that the improper reason was also a motivating factor.

If in light of all the evidence, including the evidence introduced by the employer, the general counsel still succeeds by a preponderance of the evidence in showing that anti-union animus was a motivating factor, then--

William H. Rehnquist:

Mr. Wallace, does the Board actually conduct the presentation of testimony in this kind of segmented way?

Lawrence G. Wallace:

--It is not... it is not segmented this way.

We are segmenting it only for analytical purposes.

William H. Rehnquist:

Why does it help the Board, if I might ask, to have these various presumptions and burdens of persuasion?