In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-1970 & 99-2403

Vulcan Basement Waterproofing of Illinois, Inc.,

Petitioner/Cross-Respondent,

v.

National Labor Relations Board,

Respondent/Cross-Petitioner.



On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations Board
13 CA 34708



Argued December 9, 1999--Decided July 26, 2000



  Before Posner, Chief Judge, and Coffey and Manion,
Circuit Judges.

  Manion, Circuit Judge. 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

  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

  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

  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.

  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.

  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.

  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
  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.

  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.)

  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

  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.

  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.

  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

  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.

  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.

  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

  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.

  "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

  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.

  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.

  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.
[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.

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


  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.

  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.

  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

  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).

  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
. . . .").
  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.

  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.

  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.

  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

  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

  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
  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.

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.

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

  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.

  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.



/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.
