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10 J.L. & Educ. 517 (1981)
A Union Perspective

handle is hein.journals/jle10 and id is 529 raw text is: The Effect of Mt. Healthy City School District v. Doyle Upon Public Sector Labor Law: A Union Perspective BY MITCHELL ROTH* In Wright Line, a Division of Wright Line, Inc.' the National La- bor Relations Board (Board) adopted for use in cases involving vio- lations of section 8(a)(3) of the National Labor Relations Act,2 the test of causation set out by the United States Supreme Court in Mount Healthy City School District Board of Education v. Doyle,3 a case involving the First Amendment. The Mt. Healthy test, also re- ferred to as the but for test,4 places the burden upon the employee to show that his conduct was constitutionally protected and that this conduct was a substantial or motivating factor in the employer's deci- sion to discharge him.5 Once the employee has carried this burden, he * Staff Counsel, National Education Association, Washington, D.C. 251 N.L.R.B. No. 150, 105 L.R.R.M. 1169 (1980). 29 U.S.C. § 151. Section 8(a)(3) provides in relevant part that: It shall be unfair labor practice for an employer. . .by discrimination in regard to hire or tenure of employment or any terms or conditions of employment to encourage or discourage membership in any labor organi- zation .. 29 U.S.C. § 158(a)(3). The Board adopted the test also for violations of section 8(a)(1) when they turn on employer motivation. That action provides that: It shall be an un- fair labor practice for an employer . . . to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 7. 29 U.S.C. § 158(a)(1). Section 7 provides that: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion .. 29 U.S.C. § 157. 3 429 U.S. 274, 97 S.Ct. 568 (1977). Mt. Healthy involved a public school teacher whose con- tract was not renewed for another year by the school board. In making its decision, the school board considered constitutionally protected activity along with several permissible factors. 4 The Mt. Healthy test did not gain this official label until the United States Supreme Court's opinion in Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct. 693 (1979), where the Court remanded for a determination of whether the employee would have been rehired but for her criticism of the school district. Id. at 415-16, 99 S.Ct. at 697 (emphasis in original). This article will concentrate on employer decisions to discharge employees. The but for test and section 8(a)(3), however, cover other adverse job actions such as nonrenewals, transfers or any other employer actions which affect the terms and conditions of the employee's job. 517

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