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
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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).**