We respectfully dissent.
George Strokes, a civil service employee charge with negligently operating a crane causing injuries to a fellow employee, was discharged following a hearing (Civil Service Law, § 75). Thereafter, and before the article 78 proceeding was determined (it is still pending), Strokes filed a charge with PERB, *378alleging that he was discharged because of his union activities. PERB, finding that Strokes’ discharge "was motivated by anti-union animus”, ordered reinstatement with back pay. The instant proceeding ensued and the majority, by confirming PERB’s determination, has ordered reinstatement of a man charged with and found guilty of a serious offense because there existed antiunion animus on the part of his employer.
Mr. Justice Main’s opinion holds that if a dismissal is motivated by antiunion animus, "it is irrelevant * * * whether or not cause for the employer’s action in terminating Strokes actually existed”. Under the reasoning of Mr. Justice Main’s opinion, by reductio ad absurdum, an employee whose flagrantly negligent conduct daily resulted in injuries to other employees, who was thereupon fired after a hearing, would have to be reinstated, with back pay, if PERB were to determine that one of the reasons for his discharge was antiunion bias on the part of the employer. In support of this result, Mr. Justice Main’s opinion cites Sag Harbor Union Free School Dist. v Helsby (54 AD2d 391, app dsmd March 23, 1977) and Matter of City of Albany v Helsby (29 NY2d 433). In our opinion, neither of those cases supports the majority. We find it to be of great significance that in Sag Harbor and Matter of City of Albany, in contrast to the instant case, a full hearing was not held (cf. Civil Service Law, §§ 75, 76) prior to the employer action which PERB revoked.
Subsequent to this court’s determination of the instant case, George Strokes may or may not withdraw his article 78 proceeding to review his discharge for cause. Since he is now reinstated with all back pay, his only reason to continue the article 78 proceeding would be to seek vindication from the finding of negligence by the hearing officer in the said proceedings under section 75 of the Civil Service Law. If Strokes should seek that result, and Special Term finds that substantial evidence supports the hearing officer’s determination, an anamolous result would occur. There would be a Supreme Court judgment that Strokes has been properly discharged for good cause, while Strokes would be on the job with back pay by virtue of a determination by the administrative agency, PERB. If his employer were to continue the "antiunion animus” toward Strokes, immunity would continue to be conferred upon Strokes even if he were to continue his negligent operation of the crane.
We cannot agree with such a result. In our view, when an *379employee has been discharged for cause, after a statutorily provided hearing, the sufficiency of which is currently awaiting judicial review, PERB has no power to order reinstatement. In such circumstances, PERB can make a factual finding that the employer was guilty of antiunion animus and can issue a cease and desist order. The employee can then pursue his article 78 remedy, and, at that time, can present in support of his position the factual determination by PERB. Special Term can then consider the facts constituting the alleged negligence and the finding of antiunion animus in determining whether substantial evidence supports the discharge for cause. On such determination, the discharge can be affirmed, or the employee can be reinstated.
The converse of this cannot be true: that PERB, in arriving at its decision, can consider the alleged acts of negligence of Strokes because as Mr. Justice Main’s opinion herein holds, "it is irrelevant to its [PERB] determination whether or not cause for the employer’s action in terminating Strokes actually existed”. Our conclusion as to this issue is buttressed, in our view, by a recent United States Supreme Court decision (Mt. Healthy City School Dist. Bd. of Educ. of Doyle, 429 US 274). In that case, Doyle, a nontenured school teacher, had engaged in a series of incidents with other teachers and students, including making obscene gestures to female students. An interoffice memo as to the teacher dress code was given by Doyle to a local disc jockey who put it on the air. In not rehiring Doyle, the reasons cited, inter alia, were the radio station incident and the obscene gesture matter. The District Court found the radio station incident to be "clearly protected by the First Amendment”, and that, because it played "a subtantial part” in the board’s decision, he was entitled to reinstatement. After an affirmance by the United States Court of Appeals (529 F2d 524), the United States Supreme Court, in reversing, found that even though Doyle’s First Amendment rights were violated, he was not automatically entitled to reinstatement with back pay. Instead, the court found that (p —): "[T]he burden was properly placed upon respondent [Doyle] to show that his conduct was constitutionally protected and that this conduct was a 'substantial factor’—or to put it in other words, that it was a 'motivating factor’ in the Board’s decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had *380shown by a preponderance of the evidence that it would have reached the same decision as to respondent’s re-employment even in the absence of the protected conduct” (97 S Ct, at p 576).
In the instant case, Strokes demonstrated (in the PERB hearing) that his protected conduct, i.e., union activity, was a "motivating factor” in the city’s decision to dismiss him. Special Term should now determine whether the city had shown that it would have reached the same decision as to Strokes’ employment even in the absence of the protected conduct.
The determination should be modified by annulling so much of the order of PERB that directs reinstatement and back pay and, as so modified, affirmed.
Mahoney, J., concurs with Main, J.; Herlihy, J., concurs in a separate opinion; Koreman, P. J., and Larkin, J., dissent and vote to modify in an opinion by Larkin, J.
Determination confirmed, and petition dismissed, without costs.