This Note advocates use of the Pullman-Standard Title VII model to define the proper roles of the Board and the courts of appeals in determining discriminatory intent in section 8 (a)(3) dual motive cases. Part II of this Note discusses the current confusion concerning the amount of discretion a court of appeals owes the Board's finding of discriminatory intent in dual motive cases. Part II also traces the Supreme Court's failure to define clearly the proper roles of the Board and the courts of appeals in finding discriminatory intent, the confusion this failure has caused, and the Board's unsuccessful attempt to clarify this confusion. Part III develops the Title VII model through a discussion of the Pullman-Standard resolution of the proper roles of the district courts and the courts of appeals in determining discriminatory intent in Title VII cases. Part IV argues that courts properly may apply the Pullman-Standard Title VII model to section 8(a)(3) dual motive cases. Part IV presents a four-part analysis to justify application of the Pullman-Standard model. First, it demonstrates that because the legal doctrines in both areas have experienced parallel and analogous developments, section 8(a)(3) sufficiently relates to Title VII to warrant application of the Pullman-Standard model. Second, it discusses former circuit court characterization of discriminatory intent as a question of fact and advocates a return to this position. Third, it argues that application of the Pullman-Standard model will further Congress' intention that the Board assume final responsibility for development of national labor policy subject only to limited federal appellate court review. Last, it demonstrates that the Court has characterized intent as a question of fact outside the Title VII area and has used Pullman-Standard to define the proper scope of appellate review. Part IV then discusses the implications of applying the Pullman-Standard model to section 8(a)(3) dual motive cases and concludes that discriminatory intent should be a question of fact reserved for the Board's initial determination and subject to only limited federal appellate court review. In addition, Part IV argues that application of the Pullman-Standard model will require the courts of appeals to give the Board's findings of discriminatory intent in section 8(a)(3) cases greater deference under the "substantial evidence" standard of re-view than they currently must give the district courts' findings in Title VII cases under the "clearly erroneous" standard.
William E. Anderson,
National Labor Relations Act: The Roles of the NLRB and the Courts of Appeals After Pullman-Standard in Determining Employer Motivation in Section 8 (a)(3) Dual Motive Cases,
36 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol36/iss4/6