Varying Enforcement of Zero-tolerance Violence and Threats Policy Sunk Employer's Defense; Discharge for Cut Throat Gesture Unwarranted: NLRB | Practical Law

Varying Enforcement of Zero-tolerance Violence and Threats Policy Sunk Employer's Defense; Discharge for Cut Throat Gesture Unwarranted: NLRB | Practical Law

In Nichols Aluminum, LLC, the National Labor Relations Board (NLRB) concluded that an employer violated Sections 8(a)(3) and (1) of the National Labor Relations Act (NLRA) by discharging an employee who threatened a fellow employee who refrained from striking with a cut-throat gesture, based on the gesturing employee's participation in a lawful strike. Specifically, the NLRB held that the employer demonstrated animus by the timing of the discharge (less than a month after the strike ended) and by conditioning strikers' returns to work on their promises not to strike again. Further, the NLRB held that since the employer failed to apply its zero-tolerance workplace violence and threats policy absolutely consistently, it failed to demonstrate that it would have discharged the employee in the absence of his protected activity.

Varying Enforcement of Zero-tolerance Violence and Threats Policy Sunk Employer's Defense; Discharge for Cut Throat Gesture Unwarranted: NLRB

by Practical Law Labor & Employment
Published on 09 Sep 2014 • USA (National/Federal)
In Nichols Aluminum, LLC, the National Labor Relations Board (NLRB) concluded that an employer violated Sections 8(a)(3) and (1) of the National Labor Relations Act (NLRA) by discharging an employee who threatened a fellow employee who refrained from striking with a cut-throat gesture, based on the gesturing employee's participation in a lawful strike. Specifically, the NLRB held that the employer demonstrated animus by the timing of the discharge (less than a month after the strike ended) and by conditioning strikers' returns to work on their promises not to strike again. Further, the NLRB held that since the employer failed to apply its zero-tolerance workplace violence and threats policy absolutely consistently, it failed to demonstrate that it would have discharged the employee in the absence of his protected activity.
On August 18, 2014, in Nichols Aluminum, LLC, the panel (Board) heading the NLRB's judicial functions reversed an administrative law judge (ALJ), concluding that an employer violated Sections 8(a)(3) and (1) of the NLRA by discharging an employee who threatened a fellow employee who refrained from striking with a cut-throat gesture, based on the gesturing employee's participation in a lawful strike. The Board did not overturn the ALJ's findings that the non-striking union-represented employee and the employer reasonably perceived the gesture as a threat of violence but still found that the timing of the discharge (less than a month after the strike ended), the employer's conditioning of strikers' returns to work on their promises not to strike again and the employer's failure to apply its workplace violence and threats policy absolutely consistently supported the conclusions that:
  • The gesturing employee's protected activity motivated the employer's actions.
  • The discharge was not warranted given the employer's past practices when applying the zero-tolerance policy.
(361 N.L.R.B. slip op. 22 (Aug. 18, 2014).)

Background

Nichols Aluminum, LLC, an aluminum casting and finishing plant operator, has had a collective bargaining relationship with a Teamsters local union since 1978. After their collective bargaining agreement (CBA) expired in November 2011 the parties bargained over a successor agreement. In January 2012, employees began a union-initiated economic strike. Bandy, a union member, participated but was not a union leader and did not engage in any striking activity that stood out from that of other strikers. When the strike ended in April 2012, Nichols:
  • Retained approximately 100 permanent replacement employees.
  • Told the strikers who were not replaced to report for work.
When the strikers (including Bandy) returned to work, Nichols's managers told them they must promise not to strike again about the same dispute. The managers presented Bandy and the other strikers with a form containing a pledge stating:
"You are now on notice that if you break that promise and go on strike again over the same dispute you will be subject to discipline up to and including the possibility of discharge."
The form:
  • Included spaces for the striker's name, the date and time and for two witnesses' signatures.
  • Did not define the scope of "the same dispute."
Many striking employees including Bandy agreed to the pledge. Nichols's managers were aware of their agreement.
On April 25, 2012:
  • Bandy walked beside employee Keith Braafhart (a union member who declined to strike), who slowed down the forklift he was driving and honked the horn a few times.
  • In response, Bandy looked at Braafhart and slowly dragged his clenched fist across his neck with his thumb pointing up in a cut-throat gesture directed at Braafhart.
  • Braafhart reported Bandy's gesture as a threat to Nichols's Human Resources Vice President and later met with a Plant Manager and a section supervisor.
  • A witness (Sam Harroun, a replacement worker) told management that Bandy's gesture resembled a request to shut or cut off something. (At the later NLRB hearing, the witness also testified that Bandy chuckled and said he was scratching an itch on his throat.)
  • When questioned by management, Bandy denied the gesture, stating that he was merely scratching his throat. (The ALJ discredited Bandy's recollection of the event because at the hearing he offered conflicting testimony that he was jumping back from the forklift and may have involuntarily made a hand motion).
  • Nichols suspended Bandy.
On April 27, Nichols discharged Bandy under its zero-tolerance policy concerning workplace violence and threats.
The parties' expired CBA contained a provision that certain offenses, including assault on any employees and related threats could result in termination without a prior warning. Nichols's Violence in the Workplace policy prohibits "making threatening remarks . . . that constitute a threat against another individual," and "aggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress." During poststrike meetings with employees, the Respondent emphasized its Violence in the Workplace policy and displayed (and posted on its bulletin boards) a PowerPoint slide stating:
"Harassing, disruptive, threatening, and/or violent situations or behavior by anyone, regardless of status, will not be tolerated and subject to discharge for the first offense."
After the strike and Bandy's discharge, the following incidents involving violations of the zero-tolerance policy occurred:
  • Robert Schalk, a returning striker, was approached by Craig Saltzburger, a striker replacement who shouted at Schalk, "What the fuck are you looking at? You got a fucking problem?" while making an obscene gesture. Saltzburger (while still shouting) then blocked Schalk from entering his car. Schalk returned to the facility and Saltzburger followed him, shouting, "You got a fucking problem? What are you looking at?" Schalk reported the problem to a supervisor but that supervisor told Schalk that he "should fucking grow up" and that if Schalk wanted him to do something, he would fire both employees. Schalk reported the incident to Human Resources. Nichols asserts that it disciplined Saltzburger. However the record contains no documentary evidence of this.
  • Roosevelt Smith, a strike non-participant, told his supervisor that he had weapons in his car and was going to shoot him in the gut and cause the supervisor to "shit in a bag for the rest of his life." Nichols suspended and then discharged Smith, and sent security to the supervisor's house.
  • During a disagreement over a work issue, striker replacement Harroun told striker replacement John Dinkman, "I'm going to take you out back and beat your ass." A supervisor interjected with, "Hey, that's enough," but Nichols took no other disciplinary action.
In addition, before the strike:
  • Nichols discharged employee one employee after another reported witnessing him cleaning and loading a pistol in one of Nichols's offices. A month later, Nichols rehired the purported pistol-loader as a striker replacement.
  • Nichols discharged employee Ed Fountain for threatening to go to Human Resources Manager Riley's office and beat her with a baseball bat.
The union filed an unfair labor practice charge alleging that Nichols violated Sections 8(a)(3) and (1) of the NLRA by discharging Bandy due to his concerted strike activity. An NLRB ALJ dismissed the complaint, finding that:
  • The General Counsel failed to establish that Nichols harbored anti-union animus, citing:
    • the absence of allegations of an independent 8(a)(1) violation;
    • the timing of the discipline being near his perceived threat of violence;
    • the absence of any evidence that Bandy stood out from the many strike participants for his role in the strike; and
    • the lack of evidence of statements or conduct by Nichols that would indicate hostility toward the strike or its participants.
  • Even if the General Counsel established that Nichols might have been motivated in part by union animus against Bandy's known union activities, Nichols showed that it would have discharged Bandy under its policies of zero-tolerance for threats of violence even in the absence of the protected conduct.

Outcome

A majority of the Board panel (Chairman Pearce and Member Hirozawa) reversed both of the ALJ's conclusions, holding that:
  • Nichols violated Sections 8(a)(3) and (1) of the NLRA by discharging Bandy based on his participation in the employees' lawful strike.
  • Nichols demonstrated animus by the timing of the discharge (less than a month after the strike ended) and by conditioning strikers' return on their promise not to strike again.
  • Nichols's inconsistent application of its zero-tolerance policy suggested that Nichols would not have discharged Bandy in the absence of the protected activity and could not establish the contrary.
The Board noted that:
  • To determine whether an adverse employment action was effected to encourage or discourage membership in a labor organization (prohibited under Section 8(a)(3) of the NLRA), the Board applies Wright Line, 251 N.L.R.B. 1083 (1980).
  • Under Wright Line, to establish unlawful discrimination on the basis of union activity, the General Counsel must show initially that anti-union animus was a substantial or motivating factor for the employer's action by demonstrating that:
    • the employee engaged in union activity;
    • the employer had knowledge of that union activity; and
    • the employer harbored antiunion animus.
    (Amglo Kemlite Labs., 360 N.L.R.B. slip op. 51 at 7 (Feb. 21, 2014).)
  • Under Wright Line, proof of animus and discriminatory motivation may be based on direct evidence or inferred from circumstantial evidence. If the General Counsel makes his initial showing, the burden shifts to the employer to show that it would have taken the same action even in the absence of the employee's protected activity.
  • It is undisputed that Bandy engaged in protected activity by participating in the strike and that Nichols was aware of that activity. The issue in this case is whether the General Counsel demonstrated that Nichols harbored anti-union animus.
Contrary to the ALJ (who noted that there were no complaint allegations and made no findings that the following were unlawful), the Board majority found that the record includes both direct evidence of animus and a sound basis for inferring it, as shown by the following evidence:
  • Nichols's treatment of the returning strikers. Shortly after the strike ended, Nichols:
    • required the returning strikers, as a condition of returning to work, to promise not to go back on strike over the same dispute; and
    • put the strikers on notice that breaking the promise could subject them to discipline or discharge.
  • The pledge. The pledge constitutes strong evidence of animus toward the protected conduct of striking because:
    • Nichols elicited no testimony supporting its assertion that the pledge merely sought assurance that employees would not engage in an illegal intermittent strike by striking again over the exact same issue;
    • there is no evidence that Nichols offered that explanation to employees when it required that they make the pledge;
    • the strike occurred in the context of contract negotiations and appears to have been a lawful economic strike; and
    • the pledge did not define "the same dispute," so employees could reasonably interpret the promise to encompass all issues related to the ongoing bargaining, therefore, the pledge conditioned the strikers' return to work on their promise to refrain from lawful protected activity.
  • Timing of Bandy's discharge. The timing of Bandy's discharge, less than a month after the strike ended, supports an inference that Nichols's animus toward the recently ended strike motivated Nichols to discharge him, even though Bandy played no particularly prominent role in the strike.
Having found sufficient evidence of animus to support the General Counsel's initial burden, the Board considered whether Nichols had shown that it would have discharged Bandy under its zero-tolerance policy even in the absence of the protected conduct. The Board, overruling the ALJ, found that Nichols failed to show that it would have discharged Bandy under its zero-tolerance policy even in the absence of the protected conduct because:
  • The record showed that Bandy's discharge was not consistent with Nichols's previous application of its disciplinary policy, but instead demonstrated disparate treatment of Bandy's conduct, For example:
    • Nichols declined to discipline Harroun and Saltzburger for threatening and aggressive behavior towards other employees; and
    • when Schalk reported Saltzburger's misconduct, a supervisor responded dismissively and threatened to discharge both employees.
  • This evidence demonstrates that Nichols did not consistently discharge employees, even for relatively severe misconduct. For example, while Nichols permanently discharged Fountain and Smith for threatening to physically harm supervisors and discharged McGlothen after another employee reported that he was cleaning and loading a pistol in the workplace, it rehired McGlothen a month later as a strike replacement.
  • Even under Nichols's zero-tolerance policy, it was not persuaded that Bandy's gesture would warrant immediate discharge. For example:
    • There is no evidence that Bandy made any threatening comments or other gestures aside from the cut-throat gesture, a gesture at least one witness (Harroun) thought was commonly used at the facility to indicate to a driver that an engine should be shut off.
    • Nichols's actions towards Bandy following the incident call into question its contention that Bandy posed an imminent threat of violence because Nichols permitted Bandy to leave and reenter the premises unescorted.
    • Even assuming that Bandy's gesture was intended as a threat, it was similar to, or even less severe than the threats of bodily harm and menacing harassment that resulted in no disciplinary action or an undocumented oral warning.
Member Johnson dissented, noting that he would have affirmed the ALJ's dismissal of the complaint and asserted the majority erred by:
  • Effectively overruling the ALJ's fact and credibility determinations by characterizing them as legal conclusions, not subject to deference.
  • Inferring Nichols had animus against Bandy for his union activity even though:
    • there were no alleged independent 8(a)(1) violations for the way Nichols treated any of the returning strikers;
    • there was no evidence that Bandy engaged in any prominent protected union activity that demonstrated a greater level of support for the union or the strike than held by the other strikers; and
    • Bandy engaged in activity that Braafhart and Nichols reasonably construed as a threat of physical violence much closer in time to his suspension and discharge dates (same day and two days later, respectively) than the strike ending weeks earlier;
  • Supplanting the employer's business judgment about what employee threat activity warrants discipline or discharge by boot-strapping erroneous inferences of animus to arguable inconsistencies in enforcement of its zero-tolerance policy.
  • Concluding there was disparate treatment of Bandy for his striking or union activity with less evidence than Board precedent requires.

Practical Implications

This decision shows that the Board permits the General Counsel to base 8(a)(3) cases on liberal inferences when record evidence does not show that:
  • The employee engaged in protected activity.
  • The employer knew that the employee engaged in protected activity.
  • Anti-union animus was a motivating factor in the employer's decision to discipline the employee.
The Board majority continues to dilute the General Counsel's Wright Line burden by permitting the General Counsel to show animus with inferences relying on:
  • Employer acts not found to be unlawful.
  • Non-unique protected activity far more remote in time than the purported discriminatee's hostile and intimidating behavior that was the basis for discipline.
The lightening of the GC's Wright Line burden may in some cases flip the burden on its head. Employers will be required to prove that they would have take the same disciplinary action (and have consistently taken the same action in like circumstances) even if the General Counsel fails to introduce evidence suggesting that protected activity was a motivating factor for the discipline (compare with Airo Die Casting, Inc., 354 N.L.R.B. 92 (2009)).
Employers should recognize that the Board majority might:
  • Scrutinize employer enforcement of "zero-tolerance" policies.
  • Infer that any arguable deviation from them involving employees who at some earlier time engaged in protected concerted activity was motivated by unlawful animus.
  • Supplant an employer's views of what employee actions can prompt immediate discharge under a zero-tolerance policy, even when those actions include a cut throat gesture perceived by another employee and the employer to be a threat of violence (as the ALJ found and the Board accepted as the facts of the case). Here, the majority questioned whether this threat, without more, warranted discharge and ordered the threatening employee to be reinstated.
In light of this decision, employers should consider auditing their discipline protocols to ensure strict and consistent enforcement of policies they deem zero-tolerance policies.