Prior to the hearing the parties entered into the following

stipulation of facts:

    (a) That Fred McFarland was employed as City Service Director for the City of New Franklin, Missouri at a salary of $13,800.00 per year.

    (b) That Joyce McFarland was employed as a City Clerk of the City of New Franklin, Missouri at a salary of $9,000.00 per year.

    (c) That Joyce and Fred McFarland worked for a period of three years for the City of New Franklin, and that they were terminated from their employment on February 11, 1986.

    (d) That Joyce McFarland dialed the number placing a call to the Department of Natural Resources to LaVerne Heaton, an employee of the Division of Natural Resources. That Fred McFarland spoke with LaVerne Heaton concerning the events of the evening of January 14, 1986, and procedures for water distribution in the City of New Franklin, Missouri.

    (e) That upon the request of LaVerne Heaton, Fred and Joyce McFarland contacted media about the City's water supply and requirement for boiling water before use.

    (f) That Fred and Joyce McFarland subsequently on February 10, 1986, received notice of an executive session meeting with the City Council the following day February 11, 1986.

    (g) Fred and Joyce McFarland declined to attend the closed City Council meeting.

(ALJX 6; Tr. 15).

    The primary facts involved in this case are not in dispute. A fire occurred in the City of New Franklin on January 14, 1986. Because of the anticipated need for a greater water supply, Mayor J.T. Offineer and City Council members Joe Smith and Richard Kommrau ordered a by-pass of the water filters at the city water

plant.

    Fred and Joyce McFarland on the evening of January 14, 1986, at 5:45 p.m., had left work and gone to a nearby town, Boonville, to shop for groceries. Upon their return to New Franklin, they drove to the scene of the fire and observed the county water tanker and fire truck. Since they had also seen activity at the water plant they drove to the plant. Prior to reaching the plant building, Fred McFarland spoke to Mayor Offineer who was leaving the plant and the Mayor stated that they had by-passed the water filters. Mr. and Mrs. McFarland entered the plant and spoke to Frank McDaniels who was the licensed operator at the plant. Joyce stated that they should call the Department of Natural Resources (DNR) and report the by-pass of the filters. (Tr. 98-103).

    The McFarlands drove home and at 8:04 p.m. Joyce McFarland called the Department of Natural Resources and Fred McFarland advised LaVerne Heaton of the situation. (Tr. 111). Mr. Heaton advised that a "boil water" order should be broadcast before 10:00 p.m. to the community. In addition he advised Mr. McFarland to flush out the hydrant system and turn up the clorine level, the following morning. Mr. McFarland returned to the water plant and advised Mayor Offineer that he had called DNR and of the "boil water" advise. The Mayor told Fred McFarland to go ahead and notify the media of the "boil order." Joyce McFarland called and so notified the television stations at 9:00 p.m. (Tr. 112).

    In the next two weeks January 14, 1986 and January 27, 1986, there appeared various articles in a local newspaper concerning the fire and the by-pass of the water filters. Because of this publicity Joe Smith testified that he brought the situation to the Attention of the other council members at the January 27, 1986, executive session of the regular New Franklin Board Meeting. Mr. Smith in particular strongly criticized the actions of Fred McFarland the night of the fire. Mr. Smith in criticizing Mr. McFarland stated, "He didn't need to counter our decisions. He tried to make it sound as we were poisoning the people of town. He tried to bring in other factors." (Tr. 304).

    It was suggested by Mary Grindstaff, a board member, that Fred McFarland should be asked to come to a special meeting of the board and discuss the matter. Within a day or two after the

January 27, 1986, executive session, Mrs. Joyce McFarland called Mary Grindstaff and Ms. Grindstaff told Joyce McFarland, while Fred McFarland was listening on the phone, that they were going to be fired from their employment because of the January 14, 1986, report to DNR. Mary Grindstaff testified that she told Joyce McFarland this because it was the "impression" she got from what was said at the January 27, 1986, meeting. (Respondent's Post-Hearing Brief, Pg. 3).

    On January 30, 1986, a story appeared in a local paper regarding what went on at the January 27, 1986, executive session of the New Franklin Board of Alderman as told to the paper by Mary Grindstaff. (CX 6).

    On February 10, 1986, the New Franklin Board of Alderman held its first regular meeting of the month of February. After the regular meeting the board went into executive session. In the meeting the job performance of Joyce McFarland was discussed as she was not at the regular meeting. The discussion centered around her leaving work early, leaving the meetings early or not attending at all. The amount of coffee drinking and loafing going on at City Hall in New Franklin was also discussed. It was agreed that Joyce should be asked to appear before the board on February 11, 1987.

    Fred McFarland was brought up again and the events the night of the fire and complaints of work performance were discussed. The board decided to ask Fred McFarland to appear also before the board.

    Copies of the memos left at City Hall on February 11, 1986, were introduced into evidence and are a part of the record. (RX 4 and 5). The copies contain the notes of Fred and Joyce McFarland that they would not attend the meeting set for February 11, 1986. Also admitted into evidence are two letters written by Fred McFarland and one by both Fred and Joyce McFarland. One of these letters, signed by Fred McFarlands address the January 14, 1986, DNR matter. The letter signed by both Fred and Joyce McFarland states they will not come before the board, except after given 48 hours notice and that the appearance before the board be open to the general public. (RX 6 and 7).

    The response and letters were given to the board at the

February 11, 1986 meeting by Mary Grindstaff.

    A call was made to the City Attorney and legal advice requested. The board was told that no hearing was legally required, that one could be given if the board so felt inclined.

    The Board of Alderman of the City of New Franklin consists of six members and the Mayor. On February 11, 1986, the board had one vacancy, leaving five members voting. Fred and Joyce McFarland were terminated from their employment with the city by a vote of four (4) for, one (1) against.

    Neither Fred McFarland nor Joyce McFarland had previously received any oral or written warnings or any other type of disciplinary action relating to their work activities. (Tr. 41, 42, 90, 128 181).

    In April, 1985, when Mayor James Meler first took officer personality problems developed immediately with the McFarlands. They were called in to speak to the council about this situation and Mr. Meler stated that their attitude toward him immediately changed, for the better. (Tr. 41).

    The Respondent argues that the primary reason for the discharges of Fred and Joyce McFarland was their refusal to attend the requested meeting of the board on February 11, 1986.

    Respondent stress that both of the Complainants would have been terminated regardless of their report to DNR, because of their failure to attend the meeting with the Board of Alderman.

    The Complainants argue that the stated reason for their discharges by the Respondent, namely for failure to appear at the February 11, 1986 meeting, was a pretext and was only used to cover up the real reason for their discharge, their protected activities. In the event that the reason advanced for the terminations are found not to be pretextual in nature, the next area of inquiry is whether the Respondent has satisfied his burden of proof in a dual motive discharge as set forth by the National Labor Relations Board. Wright Line, 662 F.2d 899 (1st Cir. 1981).

    In that case, it was held that where there is shown proper and improper motives for an employee's action, then the burden of proof shifts to the Employer to show by a preponderance of the evidence that it would have reached the same decision in the absence of the protected conduct.

    The Supreme Court reaffirmed the Wright Line approach to the question of burden of proof in retaliatory discharge cases in NLRB v. Transportation Management Corp., 103 S.Ct. 2469, 462 U.S. 393 (1983). In that decision, the Court stated " . . . 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 anyway motivated by a desire to frustrate union activity . . . . ", supra at 2473. The Court further pointed out that the employer can avoid the conclusion that it violated the Act by proving by a preponderance of the evidence that the employee would have been fired for permissible reasons even if he had not been involved in protected union activities.

    I find from the facts of the instant case that the reason for Complainants' discharges were pretextual. In any event, I find that Respondent has failed to carry his burden of proof under the Wright Line test by failing to prove that Fred and Joyce McFarland would have been discharged notwithstanding their complaint to the DNR. I find that Complainants have proven by a preponderance of the evidence that their discharges were motivated by their protected activity (their complaint to the DNR).

    An important factor contradicting Respondent's position and establishing the pretextual firing was the timing of the discharges. Only one month elapsed after the Complainant's telephone call to DNR. The timing factor is buttressed by the testimony of Mary Grindstaff, a board member. After the January 27, 1986 board meeting; Ms. Grindstaff was contacted by Joyce McFarland and she told both Complainants that "they were after Freddie's hide." (Tr. 52). Ms. Grindstaff based this opinion on various statements that had been made at the meeting. Her testimony regarding this point includes the following:

Q Mr. Tate asked you was there anything that you heard directly stated that indicated to you that they were out to get Mr. McFarland's hide? I would like to ask you if you heard these words at 292 of

the tape of January 27. "We need to have a discussion with Mr. McFarland in closed session. I disapprove of his actions. People have been suspended for a lot less." Do you remember words to that effect?

A Yes, sir, I do.

(Tr. 78).

    Ms. Grindstaff also notified the local press and from her actions and testimony it is clear to this Court that she believed Fred McFarland's job was in jeopardy. She also got the impression that after the January 27th meeting the board at least attempted to change the focus from what had occurred the night of the fire to Fred McFarland's entire job performance. (Tr. 53). However, Ms. Grindstaff testified that the McFarlands had been average to good employees and they had no previous disciplinary problems to her knowledge. (Tr. 55-57).

    It is clear from her testimony that Mary Grindstaff believed that the paramount issue with the board members was the Complainants' call to DNA and that the subsequent discharges were due to this protected activity by the Complainants.

Q Okay. As you sit here today do you have an explanation about how all this occurred, Can you tell the Court what you think happened here?

A You mean why we are at Court today?

Q Yes.

A I just feel that this is all -- been all brought about because Freddie called DNR before the City -- in advance of the City Council members.

Q Why did Freddie think he was going to be fired for calling the DNR? Do you know?

A I have no idea. I don't know why he thought it, but I feel -- I thought that it was just because that he called DNR before the Council members did.

Q And did you as much as say that to Joyce?

A Yes I did.

Q Did you ever see anything to change you mind in that?

A No.

(Tr. 62 and 63).

    Complainants' contention that their discharges by the board for their failure to attend the February 11, 1986 meeting was pretextual is supported also by the different type action by the Board compared with its past practice. In April of 1985 when Mayor James Meler took officer the board summoned the McFarlands to a closed session. However on that occasion the board was careful to inform the McFarlands that they had no fear of losing their jobs but that the board simply wished to hear all sides of the problem and straighten out any problems between the McFarlands and the new Mayor.

    At the hearing, none of the board members explained why this same procedure wasn't followed prior to the requested attendance of the McFarlands at the February 11th meeting. Considering the publicity of the incident the board members should obviously have realized that Fred and Joyce McFarland were deeply concerned over possible termination of their employment. The McFarlands were not orally informed of the proposed closed meeting. Instead a February 10, 1986 memo signed by all members of the board was left for them stating "Council requests your presence on February 11, 1986 at 7:00 p.m. for a meeting with the council." (RX 5). The "request" was refused by both Complainants and letters were delivered to the board outlining the McFarland's position as to a meeting. (RX 6 and 7). This court finds that the board members conveniently used the failure of the McFarlands to comply with the request for a meeting as a pretext to justify their discharges.

    The fact that Fred and Joyce McFarland had not received prior discipline is also a factor which substantiates the subterfuge of the board.

    I therefore find that Complainants have proved by a preponderance of the evidence that their discharge was motivated by their protected activity.

    Even had this Court not found the Respondents actions pretextual, I find that Complainants would prevail in the "dual motive" application. The Complainants clearly met their burden of making a prima facie showing that their protected conduct was a motivating or substantial factor in the discharge decision, NLRB v. Wright Line at 2516, and it is the Respondent who must establish justification independent of the protected activity, for the McFarlands' discharges. Instead they have established that the protected activity played a part in the dismissal. If two or more reasons combine to justify the dismissal, and any one of the reasons is an illegal motives then the Respondent has violated the Act. The Respondent bears the risk that the "influence of legal and illegal motives cannot be separated because the risk was created by his own wrongdoing." National Labor Relations Board v. Transportation Management, 103 S.C. 2469 at 2475 (1983).

    In the instant case I find Respondent has failed to carry its burden of proving its justification for dismissal independent of the protected activity.

    I affirm the findings of the Wage and Hour Division, U.S. Department of Labor, that Respondent, City of New Franklin discharged Fred McFarland and Joyce McFarland on February 11, 1986, because they had engaged in a protected activity namely notifying the Department of Natural Resources about the by-pass of the water filters.

    For the foregoing reasons, I ORDER that the April 30, 1986 decision of the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, be and is hereby affirmed and that Fred McFarland and Joyce McFarland be reinstated to their former positions with full back pay with interest, fringe benefits and with reimbursement for all their costs and expenses, including reasonable attorneys fees.

    Back pay is to be offset by any and all interim earnings complainants may have had between the time of their unlawful termination and the date they either accept or reject Respondent's offers of reinstatement.

    This Decision and Order becomes final 90 days following the date of the filing of the Complaint in this case, unless modified or vacated by the Secretary of Labor. (29 C.F.R. § 24.6). Thereafter, any person adversely affected or aggrieved by the final Order may obtain review thereof in the United States District Court of Appeals for the circuit in which the violation, with respect to which the Order issued, allegedly occurred. (42 U.S.C. § 5851(c); 29 C.F.R. § 24.7).

       RICHARD D. MILLS
       Administrative Law Judge