RED BALL MOTOR FREIGHT, INC.
v.
NATIONAL LABOR RELATIONS BOARD
Justice White,
with whom Justice Rehnquist joins,
dissenting.
In Wright Line, a Division of Wright Line, Inc., 251 N.
L. R. B. 1083, 1089 (1980), the National Labor Relations Board announced a test for identifying violations of § 8(a)(3) of the National Labor Relations Act, 29 U.
S. C. § 158(a)(3): General Counsel must first “make a prima facie showing sufficient to support the inference that [an employer’s opposition to] protected conduct was a ‘motivating factor’ in the employer’s [discharge] decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.” Most Courts of Appeals, including the Court of Appeals for the Fifth Circuit in this case, have endorsed the Board’s test in its entirety. See NLRB v. Robin American Corp., 654 F. 2d 1022 (CA5 1981); NLRB v. Lloyd A. Fry Roofing Co., Inc., of Delaware, 651 F. 2d 442 (CA6 1981); Peavey Co. v. NLRB, 648 F. 2d 460 (CA7 1981); NLRB v. Nevis Industries, Inc., 647 F. 2d 905 (CA9 1981); NLRB v. Fixtures Manufacturing Corp., 669 F. 2d 547 (CA8 1982).
The Court of Appeals for the Third Circuit and that for the First Circuit, however, disagree with the Board on the exact nature of the employer’s burden after the General Counsel establishes a prima facie case. These two Circuits hold the burden to be one of production, rather than one of persuasion. See NLRB v. Wright Line, 662 F. 2d 899 (CA1 1981), cert. denied, 455 U. S. 989 (1982); Behring International, Inc. v. NLRB, 675 F. 2d 83 (CA3 1982).
In order to resolve this conflict on what is obviously a recurring issue that should be resolved, I would grant the writ of certiorari.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Royal Dev. Co., Ltd. v. Nat'l Labor Relations Bd., 703 F.2d 363 (9th Cir. 1983)…he burden shifts to the employer to prove that the discharge would have occurred absent the protected activity. It has recently been observed that there is a conflict among the circuits on the Wright Line test. Red Ball Motor Freight, Inc. v. NLRB, 456 U.S. 997, 102 S.Ct. 2282, 73 L.Ed.2d 1293 (1982) (White, J., dissenting from denial of certiorari). A review of the circuit decisions, however, reveals that the conflict relates only to the procedural, burden-shifting aspect of Wright Line. Some circuits h…1 / 2
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Nat'l Labor Relations Bd. v. NEW York Univ. Med. Ctr., 702 F.2d 284 (2d Cir. 1983)…as been sanctioned by four circuits, Zurn Industries, Inc. v. NLRB, 680 F. 2d 683, 687 (9 Cir.1982); NLRB v. Fixtures Mfg. Corp., supra, 669 F. 2d at 550 & n. 4; Red Ball Motor Freight, Inc. v. NLRB, 660 F. 2d 626, 627-28 (5 Cir.1981), cert. denied, 456 U.S. 997 (1982); NLRB v. Lloyd A. Fry Roofing Co., 651 F. 2d 442, 446 (6 Cir. 1981) , three circuits have held that such a shift violates the requirement imposed upon the Board in § 10(c) of the Act, 29 U.S.C. § 160(c) (1976), that the General Counsel prove…
Authorities Cited
- Nat'l Labor Relations Bd. v. Wright Line, 662 F.2d 899 (1st Cir. 1981)
- Leicht v. Florida, 455 U.S. 989 (U.S. 1982)
- Spieler v. United States, 455 U.S. 989 (U.S. 1982)
- Nat'l Labor Relations Bd. v. Nevis Indus., Inc., 647 F.2d 905 (9th Cir. 1981)
- Nat'l Labor Relations Bd. v. Lloyd A. FRY Roofing Co., 651 F.2d 442 (6th Cir. 1981)
- Behring Int'l, Inc. v. Nat'l Labor Relations Bd., 675 F.2d 83 (3d Cir. 1982)
- Peavey Co. v. Nat'l Labor Relations Bd., 648 F.2d 460 (7th Cir. 1981)
- Nat'l Labor Relations Bd. v. Fixtures Mfg. Corp., 669 F.2d 547 (8th Cir. 1982)
- Nat'l Labor Relations Bd. v. Robin Am. Corp., 654 F.2d 1022 (5th Cir. 1981)