Paul N. Cox


The question of the role of employer motive in analysis of the unfair labor practices defined by Sections 8(a)(1) and (3) of the National Labor Relations Act has troubled the National Labor Relations Board and the courts from time of the enactment of that legislation. Despite repeated efforts by the Supreme Court to authoritatively define that role and repeated efforts by academics to advise the Court in the task, motive's function remains confused—the subject of diverse viewpoints compromised in the cases by an analysis which submerges fundamental isssues in the language of procedural burdens of proof. The Board, which had long adhered to the view that an employer motivated even "in part" by an "anti-union animus" in discharging an employee violated the Act, recently succumbed to repeated First Circuit criticism of that position and adopted, in Wright Line, a "but for" causation test of employer motive tied explicitly to an allocation of the burden of proof and derived from the Supreme Court's similar test in the constitutional arena. Wright Line presents anew old dilemmas concerning the meaning and efficacy of motive as a touchstone for analysis of an employer's conduct in the context of Sections 8(a)(1) and (3) unfair labor practices. This Article will attempt a reexamination of these questions, using Wright Line's adoption of the sine qua non causation test as both the occasion and vehicle for that reexamination.