8th Cir. Rebuffs NLRB on Post-Strike Discharge

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By Lawrence E. Dubé

Aug. 13 — The National Labor Relations Board erred in finding an Iowa manufacturer illegally fired a 34-year employee for walking a picket line during a strike, the U.S. Court of Appeals for the Eighth Circuit decided Aug. 13.

The NLRB had decided 2-1 there was “compelling evidence” that Nichols Aluminum LLC fired Bruce Bandy because of his union activity, but the Eighth Circuit held 2-1 the board failed to show Bandy's participation in a strike was a motivating factor in his discharge.

Nichols claimed it fired Bandy for threatening another worker two weeks after the strike ended. Writing for the court, Judge William J. Riley said the NLRB failed to establish the “requisite causal connection” between Bandy's protected activity and the loss of his job.

Worker Participated in 2012 Strike

According to the decision and NLRB records, International Brotherhood of Teamsters Local 371, representing approximately 165 employees at the company's casting and finishing plants, called a strike in January 2012 in support of the union's demands for a new collective bargaining agreement.

Bandy walked the union's picket line once a week, but the court said the casting plant worker had no significant role in the union or the strike, which was supported by most of the company's employees.

Local 371 ended the work stoppage in April 2012 and Bandy returned to work, but Nichols informed returning strikers they could not work unless they signed forms promising not to strike again “over the same dispute.” Bandy verbally agreed to the pledge, but did not sign it after Local 371 instructed its members not to do so.

Firing Followed Post-Strike Incident

On April 25, 2012, employee Keith Braafhart drove a forklift past Bandy. Braafhart sounded a horn as he was required to do, and Bandy drew his thumb across his throat.

Braafhart, who did not support Local 371's strike, reported the incident to management, describing Bandy's gesture as a threat. Bandy claimed he merely scratched his throat.

Nichols Aluminum contended it had a “zero tolerance” policy against workplace violence, and fired Bandy.

Divided NLRB Found Unfair Labor Practice

Reversing an administrative law judge, a divided NLRB found the discharge was illegal.

The board majority found the company effectively conditioned the employees' return to work on their giving up their right to strike, calling the action “strong evidence of animus toward the protected conduct of striking” (361 N.L.R.B. No. 22, 200 LRRM 1509 (2014).

The dissenting board member said there was no apparent connection between the no-strike pledge and Bandy's discharge.

Court Finds Illegal Motive Not Established

Riley said that under Wright Line, 251 N.L.R.B. 1083, 105 LRRM 1169 (1980), the board's general counsel was required to show that Bandy's protected strike activity was a substantial or motivating factor for his discharge.

Demonstrating that the employer had “simple animus” or general hostility to the union was not enough to satisfy the burden, the appeals court said.

Finding “the Board did not hold the General Counsel to its burden” of proving that discriminatory animus motivated the firing, the court said it was “unable to enforce the Board's order.”

Judge Michael J. Melloy concurred, finding “the Board made no attempt to ‘connect the dots' between the anti-union animus, Bandy's strike participation, and his ultimate discharge.”

Dissent Sees Court Second-Guessing NLRB

Dissenting, Judge Diana E. Murphy agreed with the NLRB majority that the aluminum company's effort to secure no-strike pledges provided significant evidence of anti-union animus. She also noted the general counsel produced some evidence that Nichols overlooked other apparent violations of its supposed zero-tolerance policy.

“Rather than applying the appropriate standard, acknowledging the Board's expertise, and considering both the no strike pledge and disparate treatment of striking employees by Nichols,” Murphy concluded, “the majority has substituted its own judgment for that of the Board.”

Barnes & Thornburg represented Nichols Aluminum LLC. NLRB attorneys represented the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Nichols_ Aluminum_LLC_Petitioner_v_National_Labor_ Relations_Board_.


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