Wе granted the Labor Relations Commission’s (commission) application for further appellate review to set out the legal standard and burden of proof which should govern unlawful discharge cases arising under G. L. c. 150E, § 10 (a) (1) & (3).
The last contract between the district and the association expired on August 31, 1974. By mid-August, a draft of a proposed agreement covering the 1974-1975 school year was prepared. On September 6, 1974, the teachers rejected thе draft of the proposed agreement. After this rejection, negotiations between the association and the district broke off. In an earlier action arising out of these circumstances, the commission concluded that the district had unlawfully refused to negotiate with the association. Southern Worcester County Regional Vocational School Dist., 2 M.L.C. 1488 (1976). We affirmed that decision. Southern Worcester County Regional Vocational School Dist. v. Labor Relations Comm’n,
During the 1974-1975 school year, the district employed ninety-five teachers. Fifteen had tenure; eighty did not. Superintendent Gorman recommended that the school committee not reappoint eleven nontenured teachers for the 1975-1976 year. Following the superintendent’s recommendation, the Southern Worcester County Regional Vocational District School Committee (committee) voted, at their March 3, 1975, meeting, not to reapрoint these eleven teachers.
At the same meeting, the committee voted to reappoint Stephen Yurek, the president of the association, but postponed consideration of the reappointment of Maryann Yurek, his wife. On April 7, 1975, the committee voted not to reappoint Maryann Yurek. However, in July, 1975, the committee reversed these decisions. The committee voted to reappoint Maryann Yurek and to terminate Stephen Yurek. Stephen and Maryann Yurek also filed complaints with the commission.
The commission issued a consolidated complaint, charging that the district’s action concerning these eight nontenured teachers violated G. L. c. 150E, § 10 (a) (1) - (4). Hearings began in September, 1975, and concluded in December, 1977. In December, 1978, the commission ruled that the district had committed unfair labor practices and ordered the teachers reinstated with back pay, and without prejudice to the teachers’ seniority and tenure rights.
Pursuant to G. L. c. 30A, § 14, the district appealed to the Superior Court. A judge of the Superior Court affirmed the commission’s decision and ordered the district to comply with its provisions. Again, the district appealed. The Appeals Court reversed the judgment of the Superior Court and remanded the case to the commission.
1. Standard for discharge cases arising under G. L. c. 150E, § 10 (a) (1) & (3). On appeal, the district claims that the trial judge erred in upholding the commission’s
In that case, we concluded that the commission could find a discharge unlawful under G. L. c. 150A, §§ 3, 4 (1), 4 (3), only if it found “that the employee would not have been discharged but for his protected activity. ... 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.” Id. at 561-562. We believed that this “but for” test strikes an “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.” Id. at 563.
Having chosen the “but for” test, we then set out the allocation of the burden of proof in unlawful discharge cases under G. L. c. 150A, §§ 3, 4 (1), 4 (3). Id. at 561. We followed “the pattern established in our sex discrimination cases; the employee must bear the ultimate burden of persuasion, but may rely on a prima facie showing to shift to the employer a limited burden of producing evidence.” Id. at 561.
To establish a prima facie case, an employee need not introduce direct evidence of unlawful motive such as anti-union statements. “The presence of an anti-union motivation
However, if the employer has stated a lawful reason for its decision and produces supporting facts, the prima facie case is rebutted. Thereafter, “[t]he burden of persuasion remains with the employee, who must prove by a preponderance of evidence that the аsserted lawful reason was not the real reason for the discharge.” Trustees of Forbes Library v. Labor Relations Comm’n,
The legal standard and burden of proof set out in Trustees of Forbes Library v. Labor Relations Comm’n, supra, should govern unlawful discharge claims arising under G. L. c. 150E, § 10 (a) (1) & (3). This approach strikes an “equitable balance between the rights of an employer whose duty ... is to promоte the efficiency of public services through its public employees, and the rights of a nontenured public school teacher to be secure in his employment, free from discrimination due to his union activity.” Pasco County School Bd. v. Florida Pub. Employees Relations Comm’n,
2. Substantial evidence. The district argues that the commission’s decision should be reversed, because it was not supported by substantial evidence. We disagree.
General Laws c. 30A, § 1 (6), dеfines “ [substantial evidence” as “such evidence as a reasonable mind might accept
All eight teachers presented evidence that they were active members of the association whose involvement was known to Gorman or members of the school committee,
In rebuttal, Gorman testified that the district’s actions were necessitated by declining enrollment, negative teacher attitudes, or an inability to maintain discipline.
Further, it is not fatal to the teachers’ claims that only three of the seven members of the school committee made antiunion statements. See note 6, supra. We adhere “to the rule that adequate proof in civil and criminal cases may come from either direct or circumstantial evidence, or both. . . . The probative value of circumstantial evidence ‘has never been seriously questioned,’ . . . and the persuasive value of circumstantial evidence may exceed that of direct evidence. . . .” Abraham v. Woburn,
3. Authority to direct the school committee to reinstate a tеacher even if reinstatement results in tenure. The district also claims that G. L. c. 150E, § 11, does not authorize the commission to order the school committee to hire a teacher. The district argues that pursuant to G. L. c. 71, §§ 41, 42, a school committee may decide not to rehire any nontenured teacher for any reason as long as they notify the teacher of their dеcision by April 15. See Bonar v. Boston,
We are in substantial agreement with the conclusion of the Appeals Court. Under G. L. c. 150E, § 2, public employees have the right to form, join and assist unions and to engage in lawful, concerted activity. General Laws c. 150E, § 10, as amended by St. 1974, c. 589, § 2, makes it a prohibited practice for a public employer to “[ijnterfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter” or to “ [discriminate in regard to hiring, tenure, or any term or condition of employment to encourage or discourage membership in any emрloyee organization.” These provisions limit the power of a school committee to refuse to renew the employment of a nontenured teacher. Cf. Muskego-Norway Consol. Schools Joint School Dist. No. 9 v. Wisconsin Employment Relations Bd.,
Pursuant to G. L. c. 150E, §11, the commission may order the reinstatement of a teacher who has been discriminated against for engaging in union activity, or take other affirmative action. Under § 11, the commission may order a school committee to rehire a nontenured teacher. See, e.g., Indiana Educ. Employment Relations Bd. v. School Trustees of the Worthington-Jefferson Consol. School Corp.,
In School Comm. of Danvers v. Tyman,
Since the denial of tenure on account of union activity is unlawful, the commission’s power necessarily includes the power to direct a school committee to reinstate a teacher even if reinstatement results in tenure. We reject thе district’s argument that the commission should never enter an order that results in tenure. If the district’s argument were accepted, unlawful antiunion discrimination in tenure decisions would never be subject to redress. This is a result
We therefore affirm the judgment of the Superior Court, upholding the commission’s finding that the district’s actions were motivated by unlawful antiunion sentiments and ordering that the teachеrs be reinstated with back pay and without prejudice to the teachers’ seniority and tenure rights.
Judgment affirmed.
Notes
In its application for further appellate review, the commission also asks us to consider whether G. L. c. 71, § 38, forecloses consideration of
However, we need not decide whether it is proper for the commission to consider the school committee’s motives whеn teachers are not recommended by the superintendent. In this case, there was sufficient evidence of antiunion motivation on the part of the superintendent to support the commission’s finding that the teachers who were not recommended were discharged in retaliation for union activity. The superintendent made an-tiunion statements. He urged the teaсhers not to join the association. He threatened nontenured teachers who supported the union with economic reprisals. He reprimanded three teachers for distributing union literature at the school’s open house. In an earlier case arising out of these circumstances, the commission determined that the superintendent’s actions interfered with protected activity. Southern Worcester County Regional Vocational School Dist., 2 M.L.C. 1488 (1976). We affirmed that decision. Southern Worcester County Regional Vocational School Dist. v. Labor Relations Commn,
The Appeals Court concluded that the commission may order the school committee to reinstate a teacher even if the reinstatement means that that teacher will attain tenure.
Relying on the doctrine of collateral estoppel, the commission incorporated its findings of fact in the earlier case into its decision in this case.
Of the eleven teachers, three were not certified, and thus were ineligible for reappointment, and two did not file complaints with the commission.
Before the Appeals Court, the district also complained of several procedural irregularities. We are in substantial agreement with the Appeals Court’s conclusions on these procedural questions.
In this case, there was direct evidence of unlawful antiunion animus. At least three members of the school committee, as well as the superintendent, made antiunion statements. See note 1, second par., supra.
All eight teachers picketed at school committee meetings and at the places of employment of school committee members. Stephen Yurek, Lorkiewicz, and McKeon were photographed while picketing. Stephen Yurek, Clark, and Mercier were reprimanded for distributing union leaflets at the open house. In addition, Stephen Yurek, Clark, Mercier, and Bourke were officers of the association.
This evidence included formal teaching evaluations, the testimony of the superintendent, department chairmen, and other education officials.
However, the district offered no explanation for its actions concerning Maryann Yurek. See 417, supra.
Moreover, since our decision in School Comm. of Danvers v. Tyman,
If the parties cannot agree on the amount of bаck pay, if any, that each teacher should receive, they may return to the commission to resolve this issue. In that event, the commission should keep in mind that the doctrine of mitigation of damages applies to back pay awards. See Phelps Dodge Corp. v. NLRB,