This is an appeal from a Superior Court judgment affirming a Labor Relations Commission (commission) decision that held that Forbes Library violated the labor laws, G.L.c. 150A, §§ 3, 4 (1), 4 (3), when it discharged
Richard Steward began work for the library in 1976. His supervisors were Glenda Henerey Donovan, head of the media department, and Stanley Greenberg, library director. The final decision to fire Steward was made by the library's three-member board of trustees, acting on the recommendations of the supervisors Donovan and Greenberg.
Problems between Steward and his supervisors began in the summer of 1977. Steward began to complain about wages and work assignments, and met with other employees to discuss his complaints and solicit interest in unionization. He also retained an attorney to determine whether library workers were public employees. These activities were the subjects of a number of disputes between Steward and his supervisors.
In March, 1978, Steward arranged a meeting with one of the trustees, Katherine Finn, to present his complaints and proposals. This angered Greenberg, and relations deteriorated rapidly. Greenberg solicited letters of complaint about Steward from other employees, and he and Donovan met several times with the trustees to express their displeasure with Steward.
In May, the trustees held a meeting at which both sides aired their views. Donovan charged Steward with "subversive activities" and an inability to "accept authority." Under these headings she listed several infractions of library rules,
In early June, the trustees voted two to one to discharge Steward. Steward subsequently filed a charge with the commission. The commission issued an unfair labor practice complaint, conducted a hearing, and concluded that the trustees had violated the labor laws. It ordered the trustees to reinstate Steward with back pay. A three-judge panel of the Superior Court affirmed, and the trustees have appealed. We transferred the case to this court on our own motion.
1. Standard of evaluation and burden of proof. The trustees first argue that the commission should have applied a "dual motive" standard in its evaluation of their decision. The commission dismissed the reasons offered by the trustees to explain their action as mere pretexts, and concluded that Steward had been discharged solely because he had engaged in activities protected by the labor laws. See G.L.c. 150A, §§ 3, 4 (1), 4 (3). The trustees point out that there was evidence of mixed motives — some lawful and some unlawful. They argue that the commission, in its single-motive analysis, gave inadequate consideration to the trustees' asserted lawful motives.
We believe that the commission's findings justify its decision under any of the standards argued by the parties; therefore, we need not choose among standards in order to resolve this case. We think it appropriate, however, to outline a standard and an accompanying burden of proof, so that the commission will have clear guidelines for its future decisions. We conclude that the commission should not reinstate an employee unless it finds that the employee would not have been discharged but for his protected activity. The burden of proof under this standard should follow
Courts in other jurisdictions have developed at least two standards for evaluating motivation when an employer accused of unlawful discharge claims to have had independent, lawful reasons to fire its employees. The first standard to appear was the "in part" test, which holds that the employer has violated the labor laws if it was motivated "even in part" by unlawful sentiments. See, e.g., NLRB v. Gogin, 575 F.2d 596, 601 (7th Cir.1978); M.S.P. Indus., Inc. v. NLRB, 568 F.2d 166, 173-174 (10th Cir.1977); NLRB v. Jamestown Sterling Corp., 211 F.2d 725, 726 (2d Cir.1954).
A second standard used to resolve dual motive cases is the "dominant motive," or "but for" test. If the employer would not have discharged the employee but for the employee's protected activities, the discharge is unlawful and the employee must be reinstated. If, however, a lawful cause would have led the employer to the same conclusion even in the absence of protected conduct, the discharge must not be disturbed. E.g., NLRB v. Eastern Smelting & Ref. Corp., 598 F.2d 666, 670-671 (1st Cir.1979); Midwest Regional Joint Bd., Amalgamated Clothing Workers v. NLRB, 564 F.2d 434, 440 (D.C. Cir.1977); Firestone Tire & Rubber Co. v. NLRB, 539 F.2d 1335, 1337
We prefer the "but for" standard. As the Supreme Court pointed out in an unlawful discharge case arising under the First Amendment, an "in part" test of motive is often overprotective. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-286 (1977). See also Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 416-417 (1979). If unlawful sentiments contribute in any material way to an employer's desire to fire an employee, the "in part" test shields the employee from discharge despite unsatisfactory work or flagrant misbehavior. This result may cut too far into the employer's legitimate business interests. Id. Further, the "in part" test of motive favors employees who engage in protected activity over those who do not. Id. A "but for" test strikes a more equitable balance among the interests at stake; the employer is not forced to accept an unsatisfactory employee, and a union organizer is subject to discipline to the same extent as other employees.
Having stated our preference for the "but for" standard, we now turn to the question of burden of proof. A "but for" standard calls for special attention to the burden of proof of unlawful motivation. Motivation is a subjective issue, seldom susceptible to direct proof. Moreover, a "but for" standard amplifies difficulties of proof, because the parties must address lawful as well as unlawful motives.
Courts that apply a "but for" test have varied in their allocations of the burden of proof. Some hold that the employee, or the labor commission as charging party, bears the entire burden of proof. The charging party must prove
The employee's problems of proof could be alleviated by a rule placing the burden of persuasion on the employer; once the employee had established that the employer had an improper motive and that this motive contributed at least in part to the discharge, the burden would shift to the employer. To escape liability, the employer would then have to prove by a preponderance of evidence that other, lawful considerations would have led it to fire the employee in any event. See NLRB v. Eastern Smelting & Ref. Corp., 598 F.2d 666, 671 (1st Cir.1979); Statler Indus., Inc. v. NLRB, 644 F.2d 902, 905 (1st Cir.1981). But see WymanGordon Co. v. NLRB, 654 F.2d 134, 141-142 (1st Cir.1981); NLRB v. Amber Delivery Serv., Inc., 651 F.2d 57, 68-69 (1st Cir.1981). We have adopted an analogous rule in cases involving a bailee's liability for lost or damaged goods. When goods are damaged in the hands of a bailee, the bailee often knows what happened and what care was taken to prevent accident. Because the bailor is not likely to have this information, we have relieved the bailor of its traditional burden of proving the bailee's negligence, and held instead that the bailee must prove that it exercised due care. Knowles v. Gilchrist Co., 362 Mass. 642, 651-652 (1972).
When an employer is charged with retaliation against union activity, however, such a complete shift may not be appropriate. The labor laws do not require an employer to have "just cause" to fire an employee. See NLRB v. Eastern Smelting & Ref. Corp., 598 F.2d 666, 669 (1st Cir.1979). They merely define reasons that cannot influence a discharge decision. The commission must discern and neutralize
Our cases in the area of sex discrimination suggest a third, intermediate method of allocating the burden of proof under a "but for" standard. See School Comm. of Braintree v. Massachusetts Comm'n Against Discrimination, 377 Mass. 424, 429-430 (1979); Smith College v. Massachusetts Comm'n Against Discrimination, 376 Mass. 221 (1978); Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130 (1976). The employee in a sex discrimination case bears the over-all burden of persuading the trier of fact that her employer would not have discharged her but for a discriminatory animus. Smith College, supra at 227 n. 8. She may, however, rely in the first instance on a "prima facie" showing of discrimination.
This procedure lightens the employee's burden; the employer's evidence provides information and narrows the field of possible lawful reasons that the employee must address. It does not, however, go as far to relieve the employee's burden as does the rule we have applied in bailee cases, which shifts the burden of persuasion to the party closest to the facts. The employer's burden following a prima facie showing of sex discrimination is only a responsibility to produce evidence. Once the employer has proposed a reason and presented supporting facts, the presumption of discrimination is dispelled. See McCormick, Evidence §§ 336, 345 (2d ed. 1972). The employer need not persuade the trier that it was correct in its belief that the employee had broken rules, nor that the rules infractions would have caused it to discharge an employee of any sex. The burden of persuasion remains with the employee, who must prove by a preponderance of evidence that the asserted lawful reason was not the real reason for the discharge. School Comm. of Braintree, supra at 429. Smith College, supra at 230. Wheelock College, supra at 136-139. Thus, if the evidence is in balance, the employer must prevail.
2. Review of the evidence. We come now to the trustees' second argument — that the commission's decision was contrary to the evidence. Although this court is free to examine the legal standards employed by the commission, our power to review the commission's findings of fact is circumscribed by the standards set out in the State Administrative Procedure Act. See G.L.c. 150A, § 6 (e), (f) (incorporating G.L.c. 30A, § 14 ). Unless the commission's findings are "[u]nsupported by substantial evidence," we must affirm. G.L.c. 30A, § 14 (7) (e), as amended through St. 1973, c. 1114, § 3. "Substantial evidence" is evidence that "a reasonable mind might accept as adequate to support a conclusion." G.L.c. 30A, § 1 (6), inserted by St. 1954, c. 681, § 1. Labor Relations Comm'n v. University Hosp., Inc., 359 Mass. 516, 521 (1971). We believe that the commission's decision meets this test.
There is ample evidence that Donovan and Greenberg were displeased with these activities, and that their displeasure motivated them to recommend that Steward be discharged. On several occasions, the supervisors directly expressed their hostility to Steward's protected activities. Greenberg, in his letter recommending discharge, spoke of "actions more suitable to coal mines and factories." Donovan, in her statement to the trustees, included Steward's complaints about pay, his communications with other employees, and his investigation into public employee status under the heading "subversive activities." The commission also points to various circumstantial evidence of unlawful motivation; for example, Donovan and Greenberg became abruptly more hostile after Steward met with trustee Finn to discuss pay, benefits, and improvements. Cf. NLRB v. South Shore Hosp., 571 F.2d 677, 683 (1st Cir.1978); St. Elizabeth's Hosp. v. Labor Relations Comm'n, 2 Mass.App.Ct. 782, 784 (1975).
This evidence, of course, concerns the sentiments of the supervisors rather than those of the trustees, who made the final decision. When persons responsible for discharging an employee have independent reasons for their decision, apart from the recommendations of lower level supervisors, the commission must give those reasons due consideration as motives for the discharge. If however, the decision makers relied on the recommendations of supervisors, the motives of the supervisors should be treated as the motives for the decision.
The commission also addressed the crucial question under a "but for" standard — whether the lawful reasons asserted by the library actually served as independent motives in the decision. In a letter to Steward, the trustees stated three reasons for discharging him — failure to obey the supervisor, Donovan; failure to obey the department head, Greenberg; and failure to conform to library rules. They named no specific violations of rules, and the commission found that various violations cited by Donovan and Greenberg were trivial, false, or long-condoned. Donovan complained of attendance problems, but Greenberg had checked Steward's time cards and found no irregular absences. Steward explained that equipment failure had caused him to close late several times after films. Steward also presented evidence that Greenberg had approved certain changes that he had made in the media department without Donovan's permission. Further, although the infractions
The other reasons for the discharge, proposed by Donovan and Greenberg and adopted by the trustees, centered on the tension between Steward and his supervisors. Steward gave convincing evidence that these "authority" problems were triggered by his protected activities. The hostilities began when Steward began to speak to the supervisors and to fellow employees about pay, work conditions, and public employee status, and increased as Steward's activities increased. Further, both Donovan's and Greenberg's written charges concerning Steward's response to authority referred expressly to protected activities. Therefore, the commission could reasonably conclude that the "authority" reasons were indistinguishable from the supervisors' retaliatory sentiments. An employee's refusal to accept authority cannot be considered a lawful, independent reason for discharge when the authority in question was used to suppress protected activity. See NLRB v. South Shore Hosp., 571 F.2d 677, 683 (1st Cir.1978).
In sum, we hold that employer motivation should be judged by a "but for" standard, and that the burden of proof should be allocated according to the procedure described in our sex discrimination cases. Further, we believe that the evidence supported the commission's findings that unlawful considerations motivated the trustees' decision to fire Steward, and that lawful considerations did not. It follows that the commission's decision was justified under any of the "dual motive" standards it might have applied, including the standard that we have approved. Therefore, we affirm the judgment of the Superior Court.