83-ERA-5

In the Matter Of

MELBERT J. LANDERS,
    Complainant

    v.

COMMONWEALTH-LORD JOINT VENTURE,
    Respondent

    Administrative Law Judge Daniel J. Roketenetz submitted a recommended decision and order to me in this case arising under the Energy Reorganization Act of 1974, as amended (42 U.S.C. 5851, et seq.) (ERA). A hearing was held on April 18, and 19, 1983 on a complaint filed by Melbert J. Landers that he had been fired by respondent Commonwealth-Lord Joint Venture, because he was about to commence or cause to be commenced a proceeding under the ERA. The ALJ recommended that the respondent be found in violation of § 5851 for firing Landers for actions protected by the ERA, and that Landers is entitled to appropriate remedial relief including immediate and unconditional reinstatement

to his position; back pay with interest; restoration of the terms, conditions and privileges enjoyed by direct employees; attorney's fees and other costs; and that copies of the decision be posted in conspicuous places at the jobsite.

    The ALJ carefully and thoroughly weighed all facts in the record and the issues and the arguments of the parties in this case. I adopt his recommended decision in its entirety. I would make only the following point. While the ALJ correctly adopted the Wright Line series of cases, Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083 (1980) he cited a Seventh Circuit Opinion that said that the employee has to make "a prima facie showing that [his] protected . . . conduct was a motivating factor in his discharge, whereupon the burden shifts to the employer to demonstrate that the employee would have been discharged even in the absence of the protected conduct." N.L.R.B. v. Town & Country LP Gas Service Co., 687 F.2d 187, 191 (1982). The correct rule is that the employee must prove "by a preponderance of the evidence that the protected conduct was a motivating factor in the employer's action" for the burden of proof or persuasion to shift to the employer "to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct." Dean Dartey v. Zack Co. of Chicago, 82-ERA-2, page 9 (all my emphasis).*^*

    The Supreme Court recently reaffirmed the Wright Line approach to the question of burdens of proof in retaliatory discharge cases in N.L.R.B. v. Transportation Management Corp., __ U.S.__ 51 U.S.L.W. 4761. It said in its opinion that ". . . to establish an unfair labor practice the General Counsel [of the N.L.R.B.] need show by a preponderance of the evidence only that a discharge is in any way motivated by a desire to frustrate union activity . . ." supra, at 4763 (emphasis added).

    Therefore, it is ORDERED, that the recommended decision and order of the Administrative Law Judge be adopted in entirety.

       RAYMOND J. DONOVAN
       Secretary of Labor

Dated: September 9, 1983
Washington, D.C.