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 wellestablished 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 posttermination 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 "unionneutral" 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 prounion 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 antiunion, 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 decisionmaker 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 "Fword" 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 decisionmaker. 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.