219 F.3d 677 (7th Cir. 2000)
Vulcan Basement Waterproofing of Illinois, Inc., Petitioner/Cross-Respondent,v.National Labor Relations Board, Respondent/Cross-Petitioner.
Nos. 99-1970 & 99-2403
In the  United States Court of Appeals  For the Seventh Circuit
Argued December 9, 1999Decided July 26, 2000

On Petition for Review and Cross-Application for  Enforcement of an Order of the National Labor Relations Board  13 CA 34708[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Posner, Chief Judge, and Coffey and Manion,  Circuit Judges.
Manion, Circuit Judge.


1
Antonio Maney and J.D.  McClinton were truck drivers for Vulcan Basement  Waterproofing of Illinois, Inc. On occasion they  were known to be foul-mouthed, insubordinate, and  sometimes even violent. They also became involved  in organizing a union. Vulcan claims to have  fired them for their gross misbehavior, but since  the firing occurred in the midst of their union  activity, the National Labor Relations Board  (NLRB) found that Vulcan had committed an unfair  labor practice. Because the NLRB's finding of an  unfair labor practice is not supported by  substantial evidence, we deny its application to  enforce its order and grant Vulcan's petition to  review and vacate it.

I.  Background

2
Vulcan is in the business of waterproofing  residential basements. Dennis DeLaura is the  general manager and his subordinate, Tommy Smith,  is the production manager, who organizes,  dispatches and oversees waterproofing crews. A  crew consists of four laborers, a driver and a  foreman. Vulcan has seven foremen and 35  employees. The Senior Foreman, Kevin Naugle,  fills in for Smith when he is absent. Smith is  responsible for hiring and firing laborers and  drivers, although De Laura and Naugle technically  possess the authority to do so as well.1 In  June 1996, Vulcan hired Maney and McClinton as  drivers. They were good friends, and while they  were evidently competent drivers, they were not  model employees.2


3
Significantly in this case, in early October  1996, Vulcan supervisors noticed that the  company's two new trucks had been using unusually  large amounts of fuel. An inspection revealed  that 17-18 gallons of gas were missing from the  trucks' reserve fuel tanks up to three times a  week. The only way gas could be removed from  these tanks is if someone manually extracted it.  Because only Maney and McClinton drove these  trucks, it appeared that they had been stealing  the gasoline, so in mid-October, Smith suspended  Maney and McClinton from driving these trucks,  pending further investigation. Both Maney and  McClinton denied stealing the gasoline and often  complained to Smith about being reassigned to  drive older trucks. Smith considered terminating  them, but did not do so because his vacation was  coming up, and he did not want to create staff  disruptions while he was absent. Smith was on  vacation the week of November 4 to November 8,  1996, and while he was gone, Maney and McClinton  were insubordinate and defiant to their  superiors. When Smith returned, he fired them.  Around this time, Maney and McClinton were also  helping to organize a union. Because the  incidents of insubordination and the union  activity occurred in the same time frame, we will  examine each fact situation separately.3

A.  Maney and McClinton's Insubordination

4
While Smith was on vacation, Senior Foreman  Naugle filled in as Acting Production Manager, as  he had done in past years. On Monday, November 4,  the first day Smith was gone, Naugle reminded  Maney and McClinton that they were not allowed to  drive the new trucks due to the investigation  into the stolen gasoline. Maney and McClinton  argued with Naugle about this, even though they  knew Smith had suspended them from driving the  trucks. McClinton then disobeyed Naugle's direct  order and drove a new truck anyway. As a result,  Naugle had to send someone to chase down  McClinton and retrieve the truck.


5
That same day, Naugle asked Maney, per company  policy, for either the toll receipts or if no  tolls were needed, the toll money (a few dollars)  that Vulcan had advanced him. Maney denied that  he had any receipts, and when Naugle pressed him  for an accounting, Maney said that he would  return the money the next day. At the end of the  day, Naugle complained to DeLaura that Maney and  McClinton were giving him a hard time by  insisting on driving the new trucks and that  Maney had refused to account for the money the  company had advanced him for tolls.


6
Tuesday (national election day) began with Maney  announcing that he was taking a company dump  truck to go vote. When Naugle told him that he  could not use a company truck for that purpose  (and that he was supposed to vote before he came  to work), Maney responded, "Man, f_ _ _ that."  McClinton, too, told Naugle he was going to take  a truck so he could vote. As the day progressed,  Maney and McClinton became more obnoxious. When  Naugle again asked Maney for toll receipts or to  return the toll money, Maney said, "Man, I ate  those receipts" and ultimately responded "F_ _ _  them $2.00."4 When Naugle gave McClinton that  day's work assignment sheet, McClinton told  Naugle to give his job to someone else and threw  the sheet on the floor. McClinton then walked  over to the door which led to the garage and  kicked it so hard he knocked the pin out of it  and caused the door knob to pop off.


7
Naugle was not the only target of Maney's rude  behavior that day. While Vulcan's General  Manager, DeLaura, was on the telephone with a  customer, Maney demanded to use the phone to get  a ride home (which he apparently thought was just  as important as DeLaura scheduling the next day's  work). DeLaura had allowed another employee to  use the phone before he had called the customer,  so when DeLaura told Maney he had to wait, Maney  turned around to other employees who were present  and said "This place is tripping" and "What the  f_ _ _?". Maney continued to complain, saying  "This place is bull_ _ _ _; I'm not going to  stick around here." DeLaura let Maney use the  phone, but angrily told him he was out of line,  and asked him if he wanted to continue  working.5


8
On Wednesday (November 6), Naugle again spoke  with DeLaura about the problems Maney and  McClinton were causing and recommended that they  be fired "because they were nothing but trouble  to the company." DeLaura said they should wait  until Smith returned to get rid of them because  DeLaura did not want to make any changes in  Smith's absence. As noted, it was well-  established company policy for Smith to terminate  employees, despite Naugle and DeLaura's authority  to do so. Later that day, Smith called DeLaura  from his vacation to discuss giving a raise to  another employee. At that time, DeLaura told  Smith, without going into details, that he and  Naugle were having a lot of problems with Maney  and McClinton.


9
The next day (Thursday), the problems continued.  McClinton did not show up for work, and he did  not call in "sick" until 9:30 a.m., even though  Vulcan requires employees who are going to miss  work to notify it by 7:00 a.m. so it can alter  work assignments or arrange for replacements.  McClinton missed work on Friday, too, and he did  not call Vulcan until about 8:00 a.m. (As will be  discussed, on this day the NLRB faxed Vulcan a  union election petition.)


10
On Sunday, November 10, Smith returned home from  his vacation to find a message from DeLaura  urgently asking Smith to call him. When Smith  called DeLaura back that evening, DeLaura told  him about Maney and McClinton's behavior and  stated that they had "turned the place upside  down while [Smith] was gone" and had caused a lot  of trouble. When DeLaura mentioned Maney and  McClinton's protests over not being allowed to  drive the new trucks, Smith remarked that he was  going to get rid of them because they knew they  were on probation (by which Smith meant that  Maney and McClinton were suspended from driving  the new trucks). The next day, Smith fired Maney  and McClinton when they arrived for work  (discussed below).

B.  Union Organizing at Vulcan

11
While Smith was on vacation, union activity at  Vulcan (in addition to Maney and McClinton's  antics) heated up. The idea of unionizing Vulcan  first arose in mid-July 1996 when Senior Foreman  Naugle initiated a discussion with his crew, one  of whom was McClinton, about benefits and  holidays. Naugle asked McClinton what he thought  about union representation. McClinton responded  that he thought it was a good idea, and during  the following weeks, McClinton discussed the idea  with co-workers.


12
About the third week of October, Maney, a former  member of the International Brotherhood of  Teamsters, Local 714 ("Union"), began discussing  union representation with co-workers, including  foremen, at Vulcan's garage and at job sites.  Vulcan's employees, including its foremen,  responded positively. On October 25, Maney  contacted a Union representative, and three days  later he and McClinton stood outside Vulcan's  gates and garage distributing union authorization  cards as co-workers and foremen arrived for work.  Most employees and all the foreman signed union  authorization cards. Significantly, Senior  Foreman Naugle was among the signers. Maney gave  the authorization cards to the Union, and on  November 1, he told co-workers about a meeting he  had scheduled with a Union representative and  encouraged employees and foremen to attend. On  Tuesday, November 5 (by which time Smith was on  vacation and Maney and McClinton's misbehavior  was well underway), the Union filed an election  petition with the NLRB, seeking an election at  Vulcan. Three days later (Friday), the NLRB faxed  the petition to Vulcan. The petition did not  recite any names of Vulcan employees who wanted  the election.


13
On Monday, November 11 (the day Smith returned  to work from vacation), a Union representative  met with Vulcan employees at around 6:00 or 6:30  a.m. at a restaurant about one mile from the  facility. Both Maney and McClinton attended the  meeting. They arrived at work at 7:05 a.m, and as  they were clocking in, Smith told them they were  terminated. When they asked why, he said that  they knew why. When pressed, he told them that  while on vacation, he had received a phone call  from DeLaura, and that DeLaura wanted them fired  as soon as Smith returned. Smith said that if  they wanted their jobs back, they would have to  speak with DeLaura, and that if DeLaura approved,  Smith would not have a problem rehiring them.  Maney and McClinton left the facility and called  DeLaura a couple of hours later asking why they  were fired. DeLaura said it was Smith's decision,  and that he was standing behind Smith 100%.  McClinton pressed DeLaura for a reason, and he  said that they were not team players, but added  that he would not give them a bad reference.

C.  The ALJ's and Board's Decisions

14
Maney and McClinton complained to the Union  about getting fired, and the Union promptly filed  a charge with the NLRB. The NLRB issued a  complaint against Vulcan, alleging that it had  discharged Maney and McClinton because of their  union activities in violation of Sections 8(a)(1)  and (3) of the National Labor Relations Act (the  "Act"). After a hearing, an administrative law  judge agreed. There was no evidence that DeLaura  or Smith knew of Maney and McClinton's union  activities (DeLaura and Smith both testified that  they were unaware of such activity). Senior  Foreman Naugle of course knew about their  activities, but he denied that he had told  DeLaura or Smith about them. The ALJ found Naugle  not  credible, concluding that he disliked Maney  and McClinton so much that he would have told  DeLaura about their union organizing (even though  Naugle himself had signed a union authorization  card). The ALJ "bolstered" his finding that  Vulcan knew of Maney and McClinton's union  activities by invoking the "missing witness"  rule.6 He also found that based on the timing  of the firings, Vulcan's failure to investigate  the charges against Maney and McClinton, its  failure to give specific reasons for firing them,  and what he viewed as Vulcan's shifting  explanations, Vulcan fired Maney and McClinton  because of their union activities. The ALJ  rejected Vulcan's affirmative defense that,  assuming Maney and McClinton's union activity was  a factor in their termination, Vulcan would have  fired them anyway for their misbehavior. He  concluded that Vulcan would not have done so  because it had exaggerated their misbehavior and  had tolerated bad behavior in the past. In this  regard, the ALJ disbelieved DeLaura and Naugle's  explanation that they did not fire Maney and  McClinton while Smith was gone because Smith had  always implemented termination decisions.


15
Vulcan appealed to the NLRB, contending that  many of the ALJ's findings of fact and  credibility determinations were incorrect and not  supported by the record and that his legal  conclusions were erroneous. It also moved to  reopen the record to admit McClinton's guilty  plea to a charge of criminal misconduct that  stemmed from his threat to assault Naugle because  Naugle testified unfavorably during Maney's post-  termination unemployment compensation hearing.  Vulcan sought to use the guilty plea to show that  the ALJ had erred in finding as not credible  Naugle's testimony that Maney and McClinton  abused him. The NLRB denied Vulcan's motion to  re-open the record, and it affirmed without much  modification the ALJ's ruling that Vulcan had  violated the Act. Vulcan, 327 NLRB No. 170, 1999  WL 183660, at *1. The NLRB clarified that as to  Vulcan's purported knowledge of Maney and  McClinton's union activities, it was relying on  the ALJ's credibility determinations that Naugle  told DeLaura of these activities, emphasizing  that Naugle "played a key role in the discharge  decision." Id. The NLRB disclaimed any reliance  on the "missing witness rule" to establish  Vulcan's knowledge. Id. at *n.3. It ordered  Vulcan to cease and desist from engaging in  unfair labor practices, to offer reinstatement to  Maney and McClinton, to make them whole, and to  remove from its files any reference to their  "unlawful discharges." It also required Vulcan to  post for 60 days a notice stating, among other  things, that the NLRB found that Vulcan had  violated the Act and that Vulcan would not do so  again. Id. at *2.


16
Vulcan petitions us to review and vacate the  NLRB's order, and it appeals the NLRB's decision  not to re-open the record. The NLRB cross-applies  for us to enforce its order. We have jurisdiction  pursuant to Sections 10(e) and (f) of the Act.  See 29 U.S.C. sec.sec. 160(e) and (f).

II.  Discussion

17
Section 8(a) of the Act provides that "It shall  be an unfair labor practice for an employer--(1)  to interfere with, restrain, or coerce employees  in the exercise of the rights guaranteed in [29  U.S.C. sec. 157]; . . . [or] (3) by  discrimination in regard to hire or tenure of  employment or any term or condition of employment  to encourage or discourage membership in any  labor organization . . . ." See 29 U.S.C. sec.  158(a). An employer thus violates Section 8(a)(1)  or (3) of the Act by firing employees because of  their union activities. To prove a violation, the  NLRB's General Counsel must "prove that antiunion  animus was a substantial or motivating factor in  the employer's decision to make adverse  employment decisions." Weiss, 172 F.3d at 442. If  he proves such a motivation by a preponderance of  the evidence, the employer can then avoid a  finding of an unfair labor practice if it can  show that it would have taken the action  regardless of the employee's union activities.  Id. But the employer need not establish this  affirmative defense until the General Counsel has  met his burden. Id.


18
"To establish that anti-union animus was a  substantial or motivating factor in [a]  discharge, [the General Counsel] must demonstrate  that: (1) [the employee] 'engaged in union . . .  activities; (2) the employer knew of [the  employee's] involvement in protected activities;  (3) the employer harbored animus toward those  activities; and (4) there was a causal connection  between the employer's animus and its discharge decision.'"  Lebow v. American Trans Air, Inc., 86 F.3d 661,  666 (7th Cir. 1996) (quoting Carry Companies of  Ill., Inc. v. NLRB, 30 F.3d 922, 927 (7th Cir.  1994)). The General Counsel can prove his case  with direct or circumstantial evidence. Id. But  the NLRB's legal conclusions must have a  reasonable basis in the law, and its factual  findings must be supported by substantial  evidence, which "means such relevant evidence as  a reasonable mind might accept as adequate to support a conclusion." Weiss, 172 F.3d at 442. At  oral argument, the General Counsel told us that  the "substantial evidence" test is met if the  NLRB's findings are not "fundamentally  unreasonable." We accept this description of the  test, and conclude that the NLRB's findings in  this case were in fact fundamentally  unreasonable.

A.  The General Counsel's Case

19
No one disputes that Maney and McClinton had  been engaging in protected activity at the time  they were fired. But the decision-makers at  Vulcan had to know of these activities. The  direct evidence was undisputed that Naugle did  not tell DeLaura about Maney and McClinton's  union organizing. Thus, to meet the second  element of the test (employer knowledge), the ALJ  either had to disbelieve Vulcan's witnesses and  infer from circumstantial evidence that Naugle  did in fact tell DeLaura of the protected  activity, or he had to somehow "impute" Naugle's  knowledge of these activities to the company as a  matter of law. Citing GATX Logistics, Inc. 323  NLRB 328, enforced, 160 F.3d 353 (7th Cir. 1997),  the General Counsel has put together a unique  formula by arguing that we should impute Naugle's  knowledge to Vulcan because it is likely that he  actually told the company about Maney and  McClinton's union activities.7 See Response  Brief at 23 (arguing that the NLRB reasonably  imputed Naugle's knowledge to Vulcan because "it  is most improbable" that Naugle would not have  told DeLaura). The General Counsel can't have it  both ways. And it is doubtful he can have it  either way. As shown below, it is not reasonable  either to impute Naugle's knowledge of Maney and  McClinton's union activities to Vulcan or to  infer that Naugle in fact told DeLaura of their  activities.


20
First, regarding imputation, courts have  generally rejected the NLRB's attempts to simply  attribute a foreman or supervisor's knowledge of  an employee's union activities to the company.8  Automatically imputing such knowledge to a  company improperly removes the General Counsel's  burden of proving knowledge. We have rejected  other attempts by the General Counsel to so  lighten his burden of proof. See Weiss, 172 F.3d  at 444 (discussing "adverse inference" rule) ("An  absence of evidence does not cut in favor of the  one who bears the burden of proof."). And we  reject any attempt to do so here Vulcan or its  decision-maker (be it DeLaura or Smith) did not  know of Maney and McClinton's union activities  just because Naugle knew about them.


21
The General Counsel cites Grand Rapids Die  Casting Corp. v. NLRB, 831 F.2d 112 (6th Cir.  1987), as support for the NLRB imputing Naugle's  knowledge to Vulcan. But the General Counsel  misreads that case. Grand Rapids said that the  Board could impute the anti-union animus of a  supervisor to a company when the supervisor knew  of an employee's union activities and was  involved in the decision to terminate the  employee. This was true even though the  supervisor was not the decision-maker and there  was no evidence that the actual decision-maker  knew of the employee's union activities or had an  anti-union animus. Id. at 117. The rationale for  doing so was that the supervisor is an agent of  the company, and he (and thus "the company")  should not be allowed to concoct some "union-  neutral" charge about an employee in order to get  the employee fired.


22
[A] supervisor's unlawful, anti-labor motivation  in making a false report leading to discharge  must be imputed to the Company, even though the  officers who actually make the firing decision do  not share that animus. Thus, the Company is  deemed to possess the unlawful animus.


23
Id. (emphasis added) (quoting JMC Transport, Inc.  v. NLRB, 776 F.2d 612, 619 (6th Cir. 1985)). In  short, the supervisor should not be allowed to  "launder" his anti-union animus through the  apparent non-discriminatory action of the  decision-maker who is personally unaware of the  employee's union activism. Boston Mut. Life Ins.  Co. v. NLRB, 692 F2d 169, 171 (1st Cir. 1982).9


24
If we were to apply the imputation of animus  principle with respect to Naugle, Vulcan would  benefit. The animus, good or bad, should follow  the supervisor. Thus, while Naugle may have had  an "anti-Maney and McClinton" animus, he did not  have an anti-union animus. Naugle was pro-union.  Recall that weeks earlier he initiated the idea  of having a union and later signed a union  authorization card. If anything, his pro-union  attitude should be attributed to Vulcan, and the  fact that he recommended firing Maney and  McClinton anyway underscores that Vulcan fired  them for their misbehavior, not their union  activities. In sum, anti-union animus attributed  to Naugle cannot be imputed to Vulcan because  there is not any evidence (let alone substantial  evidence) that he had any.


25
On the subject of actual knowledge, the NLRB  could conceivably infer from circumstantial  evidence that despite his denials, Naugle told  Vulcan about Maney and McClinton's union  activities. Perhaps the NLRB concluded that  Naugle reported their activity because he was  involved in their firing and because it believed  he would be loyal to the company when it came to  union organizing. The NLRB drew such an inference  in GATX (see note 7, supra). But the critical  difference between this case and GATX is that the  GATX supervisor who was involved in firing an  employee not only knew of the employee's pro-  union activities but was blatantly hostile to the  union. For instance, upon seeing the employee  wearing a jacket with a union logo, the GATX  supervisor "stared at the union logo and  commented, 'That won't go over too well here,'  referring to the Union." 323 NLRB at 300. He  later told the employee "'That's an awfully big  target you have on your back,' referring to the  larger union logo on the back of [his] jacket."  Id. And he "angrily commented . . . that there  'was no damn way there was going to be Union [at  work], and that he would see to that.'" Id. at  331. Given that supervisor's extreme anti-union  animus, it was reasonable for the NLRB to infer  that he told the decision-maker of the employee's  union activities. See id. at 333; n.7, supra.


26
There is no comparison between Naugle and the  GATX supervisor. As noted, far from being anti-  union, Naugle was a union adherent. Why would a  pro-union foreman attempt to malign subordinates  by labeling them pro-union? And if he had any  indication that the company was anti-union, why  would he jeopardize his own career?10


27
Similarly, we find no support for the inference  that Naugle told DeLaura of Maney and McClinton's  union activities simply because Naugle disliked  them and wanted them fired. Vulcan, 327 NLRB No.  170, 1999 WL 183660, at *21 (The ALJ surmised  that "Naugle falsely exaggerated the misconduct  of Maney and McClinton . . . . If Naugle wanted  the two drivers terminated as much as he did, it  is inconceivable that he would not have reported  their union activities to DeLaura."). Whether  Naugle liked them or not, it is likely that he  reported their misconduct because it was  unacceptable. Cf. Jim Walter Resources Inc., 177  F.3d at 962-63 (NLRB could not simply assume that  employee's criticism of applicant to decision-  maker was based on anti-union animus rather than  another reason).


28
The inability of the NLRB to base Vulcan's knowledge of Maney and McClinton's union activities on Naugle's knowledge of them is critical because there is not substantial evidence to support a finding that DeLaura otherwise knew of these activities. The NLRB has disclaimed use of the "missing witness rule"; the union election petition did not list any names; Naugle testified that he did not tell Smith or DeLaura about union organizing in general or about Maney and McClinton's union activities in particular; and Smith and DeLaura testified that they were unaware of union activity at Vulcan and of Maney and McClinton's union activism. Even if Smith and DeLaura knew of the union movement in general--and there appears to be no evidence of that either--there is no evidence that they knew about Maney and McClinton's involvement in it. Such knowledge is essential to the General Counsel's case. See NLRB v. Loy Food Stores, Inc., 697 F.2d 798, 800-01 (7th Cir. 1983) (The company "knew there had been a union meeting which many of the employees had attended but there is no evidence that it knew [the employees in question] had been among them....The Board must and here failed to prove that the employer knew the worker in question was a union adherent.....").


29
And even if the General Counsel could establish  that Vulcan's officers directly or indirectly  knew of Maney and McClinton's union activities,  there is no evidence of any anti-union animus.  Contrast Weiss, 172 F.3d at 443 ("The record  certainly establishes that Weiss's management  opposed the union in the election and encouraged  employees to vote against it--as was their  right."). On the contrary, the record shows only  pro-union sentiment from those in supervisory  positions all the foremen, including Senior  Foreman Naugle, signed union cards.


30
The NLRB relies on the timing of the firings--on  Monday, the first business day after Vulcan  received the NLRB petition--to show Vulcan's  anti-union animus and causation. Vulcan, 327 NLRB  No. 170, 1999 WL 183660, at *23. While in some  cases, "timing is everything," NLRB v. Joy  Recovery Tech. Corp., 134 F.3d 1307, 1314 (7th  Cir. 1998), here timing is the only thing, and  under these facts that is not enough. See Chicago  Tribune Co. v. NLRB, 962 F.2d 712, 717-18 (7th  Cir. 1992) ("mere coincidence is not sufficient  evidence of antiunion animus"). Smith considered  firing Maney and McClinton before he went on  vacation, and his decision not to do so  eliminated a need to replace the two drivers  before he left, which would have left the company  in a bind and messed up his vacation plans. When  he returned Sunday evening, DeLaura told him  about their insubordination while he was away.  The accumulated gross misbehavior during Smith's  absence led him to discharge them promptly when  he (and they) returned to work. Unlike the  General Counsel, we do not think it is "highly  suspect" that Smith considered and, for the time  being at least, rejected firing Maney and  McClinton before he went on vacation.


31
The General Counsel also argues that Smith and  DeLaura's failure to give Maney and McClinton a  reason for their discharges, even though they  repeatedly asked for one, is suspicious, as is  Vulcan's failure to investigate the charges  against them. Vulcan, 327 NLRB No. 170, 1999 WL  183660, at *22. An employer is not required to  give reasons when it fires its employees  (although under some circumstances failing to do  so might give rise to an inference of antiunion  animus). "The fact that a union is trying to  organize the work force . . . does not even throw  on the company the burden of proving that it had  a good reason for firing. The company can fire  for good, bad, or no reasons, so long as its  purpose is not to interfere with union activity."  Loy Food Stores, Inc., 697 F.2d at 891; accord  Carry Companies of Ill., Inc., 30 F.3d at 926;  Chicago Tribune Co., 962 F.2d at 716. But Smith  essentially did give Maney and McClinton a  reason he told them they knew why they were  being fired, as well they should have. When  employees openly engage in gross misbehavior,  their employer is not required to state or  investigate the obvious.


32
The General Counsel also asserts that Smith and  DeLaura gave conflicting statements as to who  made the decision to fire Maney and McClinton.  See Vulcan, 327 NLRB No. 170, 1999 WL 183660, at  *22. But their statements are not really  inconsistent. DeLaura, as the head of the  facility, was technically or formally in charge  of terminations, and he was greatly displeased  with Maney and McClinton's behavior. But it was  company practice for Smith to be the real  decision-maker, or at least the executioner, in  such matters. It was thus entirely logical for  Smith to tell Maney and McClinton that DeLaura  was upset with them and wanted them fired  (DeLaura, after all, had to deal with their  misbehavior while Smith was away). It was also  logical for DeLaura to tell Maney and McClinton  that, while it was Smith's decision, he would  stand behind Smith 100 percent. In short, both  Smith and DeLaura wanted Maney and McClinton  fired. No doubt neither wanted to confront Maney  and McClinton directly, given their past  behavior.11


33
Finally, the General Counsel claims Vulcan's  "shifting reasons" for the firings indicates  Maney and McClinton's union activity was a factor  in their termination. The ALJ found that Vulcan's  pretrial "position statement asserted that the  two drivers were discharged 'for a combination of  theft, insubordination and failing to show up for  work.'" Id. DeLaura indicated that they were  fired for these offenses, see id. at *11, but  according to the ALJ, "Smith's testimony shifted  away from and did not support that position. . .  . According to Smith, the issue was the demanded  use of the newer trucks." Id. at *22. Smith was  particularly upset with Maney and McClinton for  these demands, but he also indicated that Maney  and McClinton's other instances of misbehavior  were factors in their termination.12 Smith's  "different emphasis," as the ALJ put it, id. at  *11, for firing them is understandable. Unlike  Naugle and DeLaura, Smith did not have to put up  with Maney and McClinton's antics during November  4 to November 8; he was on vacation. What Smith  had to endure before he went on vacation was  their repeated complaints about being suspended  from driving the new trucks. It is only natural  that in discussing their termination, Smith would  focus on the aspect of Maney and McClinton's  behavior that had most affected and bothered him  (and for which he had considered firing them  before he left). An understandably "different  emphasis" in reasons should not be discarded as  "shifting reasons." Where, as here, there are  multiple bona fide reasons for firing an  employee, the fact that different supervisors  with different experiences cite or emphasize  different legitimate reasons does not give rise  to a reasonable inference of an unlawful  motive.13

B.  Vulcan's Affirmative Defense

34
Even if the General Counsel had proven that  Vulcan's dislike of Maney and McClinton's union  activities was a factor in its decision to fire  them, substantial evidence does not support the  NLRB's finding that Vulcan would not have fired  them anyway for legitimate reasons. See Vulcan,  327 NLRB No. 170, 1999 WL 183660, at *23.  Although the General Counsel contends that Vulcan  exaggerated some of Maney and McClinton's antics,  he agrees that they committed the offenses of  which Vulcan accused them (see n.3) apparent  theft (the missing gasoline from the new trucks),  threatened theft (trying to take a company truck  to go vote), insubordination (taking a new truck  to a job site, not calling in timely before  missing work), violence (kicking a door so hard  the knob and pins pop off) and grossly obnoxious  behavior (interfering with the General Manager's  use of a telephone and refusing to account for  toll money). But he nevertheless argues that  Vulcan would not have fired them for this gross  misbehavior because it had tolerated their bad  behavior in the past, including complaints about  being unable to drive the new trucks.14


35
An employer who has tolerated bad behavior in  the past is not forced to continue to do so, let  alone required to tolerate increasingly bad  behavior. See NLRB v. Eldorado Mfg. Corp., 660  F.2d 1207, 1214 (7th Cir. 1981) ("The Board's  case against the Company rests at bottom on the  apparent notion that blatant misconduct once  tolerated at all must be tolerated forever.  However, as this Court has previously stated,  there must be room in the law for a right of an  employer somewhere, sometime, at some stage to  free itself of continuing unproductive, internal,  and improper harassment."). Thus, even though  Smith declined to fire Maney and McClinton for  their repeated complaints or for suspicion of  stealing gasoline before he went on vacation, he  could change his mind once he returned and  learned of their escalated misbehavior while he  was away.


36
The Board applied in effect a presumption that  the discharge of a union adherent during an  organizing campaign is motivated by hostility to  the union, a presumption that can be rebutted  only by showing that the discharge was for good  cause--and maybe not even then. [The company] had  plenty of cause to fire [its two employees], yet  that did not help it with the Board. Evidently,  if a worker is a good worker he cannot be fired  if he is a union adherent because the company  will not be able to show good cause for firing  him, and if he is a bad worker, like [the two  employees here], he cannot be fired either, for  since he was not fired previously this shows that  the company does not fire workers because they  are bad workers but only because they are union  adherents.


37
Loy Food Stores, Inc., 697 F.2d at 800.  Substantial evidence, therefore, does not support  the NLRB's finding that Vulcan would not have  fired Maney and McClinton anyway for legitimate  reasons.

III.  Conclusion

38
A union card does not insulate bad behavior.  "The National Labor Relations Act does not give  union adherents job tenure, even during union  organizing campaigns. The fact that a union is  trying to organize the work force does not  suspend the company's right to hire and fire . .  . ." Id. at 801.


39
For the foregoing reasons, we GRANT Vulcan's  petition for review and VACATE the NLRB's order. We  consequently DENY the NLRB's cross-application to  enforce its order. And we determine that Vulcan's  request that we reverse the NLRB's decision not  to re-open the record to admit McClinton's guilty  plea is MOOT.



Notes:


1
 In his six years as Senior Foreman Naugle has  fired only one person; Smith has made the  decision for every other laborer or driver who  was fired. In the last five years, Vulcan has  fired 15-25 drivers and 25-30 laborers, all by  Smith, none by DeLaura.


2
 In mid-August 1996, for example, Maney knowingly  participated in unauthorized work for a  noncustomer for which his employer, Vulcan, was  not paid. Maney's entire crew, including the  foreman, was involved. Vulcan fired the foreman  and required the crew to reimburse the company.


3
 Vulcan contends that Maney and McClinton often  used profanity in their run-ins with Naugle and  DeLaura during the week that Smith was on  vacation. The ALJ, however, found a more  sanitized version of Maney and McClinton's  insubordinate behavior. See Vulcan Waterproofing  Co., 327 NLRB No. 170, 1999 WL 183660, at *19  (March 31, 1999). But even though the General  Counsel argues to us that Vulcan has  "exaggerated" some of Maney and McClinton's  misbehavior, he seems to agree with Vulcan that  Maney and McClinton did abuse Naugle and DeLaura  with profanity, noting only that such profanity  was "commonplace" at Vulcan. See Response Br. at  32 n.10. More importantly, the General Counsel  acknowledges that with respect to each instance  of insubordination and misbehavior, "it is  undisputed that those incidents occurred." Id. at  31 (emphasis added).


4
 The transcripts of the hearing before the  Administrative Law Judge indicate that the "F-  word" and its cognates form a substantial part of  Maney and McClinton's vocabulary.


5
 The ALJ found that Maney engaged "in some  provocative behavior" (such as by telling  coworkers that DeLaura was "tripping"), but the  ALJ applied the missing witness rule to conclude  that a less disruptive version of this incident  had occurred because Vulcan did not call  witnesses to corroborate DeLaura's version, the  incident must not have been as bad as DeLaura  described. See Vulcan, 327 NLRB No. 170, 1999 WL  183660, at *17. The NLRB, however, has distanced  itself from the ALJ's use of the missing witness  rule, and given this court's skepticism of this  rule, the NLRB is wise to do so. See NLRB v.  Louis A. Weiss Mem'l Hosp., 172 F.3d 432, 445-46  (7th Cir. 1999); see also Jim Walter Resources,  Inc. v. NLRB, 177 F.3d 961, 963 (11th Cir. 1999)  (rejecting use there of missing witness rule).  For example, at oral argument the General Counsel  called Vulcan's criticism of this rule a "red  herring" because the NLRB had decided not to rely  on it (as the ALJ had done) in finding that  Vulcan knew of Maney and McClinton's union  activities. And the General Counsel has not  defended the ALJ's use elsewhere of this rule.  Because the ALJ's decision to disbelieve  DeLaura's version of the phone incident was based  in large part on the application of the  questionable missing witness rule, we cannot  accept the ALJ's assumption of what occurred.


6
 The ALJ observed that other foremen besides  Naugle knew of and even participated in Maney and  McClinton's union activities, and he presumed  that such foremen would be "friendly" to the  company. The only reason, the ALJ concluded, that  Vulcan did not call these knowledgeable and  "friendly" foremen to support its asserted lack  of knowledge of Maney and McClinton's union  activities, must be because these foremen would  not support Vulcan on this point. He thereby  inferred that these "missing witnesses" must have  told Vulcan about Maney and McClinton's union  activities (activities, of course, in which the  foremen were also involved). See Vulcan, 327 NLRB  No. 170, 1999 WL 183660, at *20.


7
 A close reading of GATX reveals that the NLRB did  not impute the supervisor's knowledge of the  employee's union activities to the decision-  maker. Rather, the ALJ there noted that the  NLRB's decision in United Cloth Co., 278 NLRB 583  (1986), would allow him to do so. But he then  concluded that, as a matter of fact, it was  reasonable to infer that the supervisor told  management of the employee's union activities  because the supervisor vehemently disliked the  union. See GATX, 323 NLRB at 333 ("In any event,  given [the supervisor's] overall lack of  credibility as a witness, and his comments . . .  about fixing [the employee's] 'attitude' problem  and how he would see to it that the Union was not  brought in, I am convinced that [the supervisor]  did indeed inform" management about the  employee's union activities.) (emphasis added).  Thus with actual knowledge found, no imputation  was necessary.


8
 See NLRB v. McCullough, 5 F.3d 923, 932 (5th Cir.  1993); Pioneer Natural Gas Co. v. NLRB, 662 F.2d  408, 412 (5th Cir. Unit A Nov. 1981); Delchamps,  Inc. v. NLRB, 585 F.2d 91, 94 (5th Cir. 1978)  (the NLRB may not "mechanically impute the  knowledge of others to" the decision-maker); see  also Jim Walter Resources, Inc., 177 F.3d at 963  ("In a refusal to hire case the Board may not  impute the knowledge of a low-level supervisor to  a decision-making supervisor."); but see Ready  Mixed Concrete Co. v. NLRB, 81 F.3d 1546, 1552  (10th Cir. 1996) (imputing supervisor's knowledge  of employee's union activities to company where  supervisor had anti-union animus, but  acknowledging that decision-maker admitted he  probably knew of employee's union activities).


9
 The General Counsel's theory is not that Naugle  drummed-up a bogus charge against Maney and  McClinton in order to get them fired. See JMC  Transport, supra. But even if he did, for Vulcan  to vicariously have an anti-union animus for  firing Maney and McClinton under this theory,  Naugle must have had an anti-union motive for  fabricating the charge, id., as opposed to  fabricating it because he generally disliked  Maney and McClinton. Naugle certainly had  problems with the two men, but there is no  indication he had any anti-union animus  (discussed, infra).


10
  Despite Naugle's union sympathies, the ALJ  concluded that he could have been an "undercover  informer" and thus told DeLaura about Maney and  McClinton's union activities. Vulcan, 327 NLRB  No. 170, 1999 WL 183660, at *21. This crosses the  line from reasonable inference to wholesale  speculation. If the General Counsel "wanted to  create a record from which this inference could  be drawn, [he] needed to elicit some testimony on  the matter." Weiss, 172 F.3d at 445. Moreover,  and as noted, this theory does not even make  sense and thus raises questions about the ALJ's  objectivity. The NLRB should not brand Naugle a  spy or conspirator (and ultimately Vulcan a  lawbreaker) based upon an unsubstantiated and  illogical "secret agent man" theory.


11
 To show Maney and McClinton's propensity for  abusive behavior, Vulcan requests that we reverse  the NLRB's denial of its motion to reopen the  record to admit McClinton's guilty plea to a  charge of criminal misconduct that allegedly  stemmed from his threat to assault Naugle after  Maney's post-termination unemployment  compensation hearing. Because we are vacating the  NLRB's order in this matter, we need not decide  whether it properly refused to reopen the  administrative record.


12
 Smith testified "Well, [DeLaura] was telling me  that . . . J.D. [McClinton] and Toney [Maney]  they, like, 'turned the place upside down while  you were gone.' He said, 'man, we had a lot of  trouble out of them,' . . . and he was telling me  that J.D. kicked a door in, Tony got into it with  Kevin [Naugle] about the trucks. I said 'hold it.  They knew they was on probation for [i.e., were  suspended from driving] them trucks [sic].'" Id.  at *11.


13
 We will not consider Vulcan's argument that the  NLRB improperly shifted the burden of proving  union animus because Vulcan did not raise it  until its reply brief. See Holman v. Indiana, 211  F.3d 399, 405 n.5 (7th Cir. 2000).


14
 The General counsel also argues that Vulcan did  not list these incidents as reasons for firing  Maney and McClinton; it only listed their  complaints about being suspended from driving the  new trucks. As we noted, it is not reasonable to  pigeonhole Vulcan's reasons in this way.


