NLRB Cannot Infer Unlawful Motive, Reinstate Cut Throat Gesturer: Eighth Circuit | Practical Law

NLRB Cannot Infer Unlawful Motive, Reinstate Cut Throat Gesturer: Eighth Circuit | Practical Law

In Nichols Aluminum LCC v. NLRB, the US Court of Appeals for the Eighth Circuit denied enforcement of an order by the National Labor Relations Board (NLRB) requiring an employer to reinstate an employee who made a cut-throat gesture to his co-worker who declined to join an earlier strike. The NLRB misapplied its Wright Line analysis when it found the gesturing employee's discharge was unlawfully motivated.

NLRB Cannot Infer Unlawful Motive, Reinstate Cut Throat Gesturer: Eighth Circuit

Practical Law Legal Update 8-618-1585 (Approx. 7 pages)

NLRB Cannot Infer Unlawful Motive, Reinstate Cut Throat Gesturer: Eighth Circuit

by Practical Law Labor & Employment
Published on 18 Aug 2015 • USA (National/Federal)
In Nichols Aluminum LCC v. NLRB, the US Court of Appeals for the Eighth Circuit denied enforcement of an order by the National Labor Relations Board (NLRB) requiring an employer to reinstate an employee who made a cut-throat gesture to his co-worker who declined to join an earlier strike. The NLRB misapplied its Wright Line analysis when it found the gesturing employee's discharge was unlawfully motivated.
On August 13, 2015, in Nichols Aluminum, LLC v. NLRB, the US Court of Appeals for the Eighth Circuit denied enforcement of an NLRB order requiring an employer to reinstate an employee who made a threatening cut-throat gesture to a co-worker, who unlike the gesturing employee, declined to engage in a recent strike. The Eighth Circuit found that the panel (Board) heading the NLRB's judicial functions misapplied the Wright Line standard and improperly failed to require the NLRB General Counsel (GC) to prove that the employer's discriminatory animus toward the employee's union activity was a substantial or motivating factor in the decision to discharge him. (No. 14-3001, (8th Cir. Aug. 13, 2015).)

Background

Bruce Bandy was one of a group of Nichols Aluminum employees to participate in a union-initiated economic strike (Bandy took no leadership role in the strike). After the strike ended, Bandy made a throat-cutting gesture during an unrelated incident with an individual who had crossed the picket line. The other employee claimed that Bandy's gesture was a threat of violence. Bandy argued that he was just scratching his throat. Nichols terminated Bandy's employment, alleging that he violated the company's "zero tolerance" anti-violence policy, which subjects employees to possible discharge for a first offense.
In the resulting unfair labor practice (ULP) proceedings, the Board majority (over a strong dissent) held that Nichols violated Sections 8(a)(1) and (3) of the NLRA by discharging Bandy based on his participation in the employees' lawful strike. For more information, see Legal Update, Varying Enforcement of Zero-tolerance Violence and Threats Policy Sunk Employer's Defense; Discharge for Cut Throat Gesture Unwarranted: NLRB.
Nichols petitioned the Eighth Circuit for review and the NLRB petitioned for enforcement of the Board's order.

Outcome

The Eighth Circuit:
  • Granted Nichols's petition for review of the Board's order.
  • Denied enforcement of the Board's reinstatement order and decision that Nichols violated Section 8(a)(1) and 8(a)(3) of the NLRA by discharging Bandy for his strike participation rather than his threatening gesture.
The Eighth Circuit noted that:
  • Under Section 8(a)(1) of the NLRA, it is a ULP for an employer to interfere with or restrain employees from participating in concerted activity (29 U.S.C. § 158(a)(1)).
  • Section 8(a)(3) of the NLRA prohibits employers from discriminating against employees to discourage union membership (29 U.S.C. § 158(a)(3)).
  • Under Wright Line, the court's task in resolving cases alleging violations that turn on motivation is to determine whether there was a causal relationship between the employee's protected activity and the employer's decision to discharge the employee (251 N.L.R.B. 1083, 1089 (1980)).
  • To prove that the discharge was discriminatory, the GC must show that:
    • the employer discharged the employee for his union activities or membership; and
    • "but for [the employee's] union activities or membership, he would not have been discharged."
    (Concepts & Designs, Inc. v. NLRB, 101 F.3d 1243, 1245 (8th Cir. 1996).)
  • Animus towards the union is a factor to be considered by the Board when determining whether an employer had a discriminatory motive. However, simple animus is not enough to prove an employer's unlawful motive in an adverse employment action against an employee (Carleton Coll. v. NLRB, 230 F.3d 1075, 1078 (8th Cir. 2000)).
The Eighth Circuit found that:
  • The Board misapplied the Wright Line standard and improperly relieved the GC of the burden to prove that Nichols's discriminatory animus toward Bandy's union activity was a substantial or motivating factor in the decision to discharge him.
  • The Board made factual findings that were not supported by substantial evidence (NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 780 (8th Cir. 2013)).
  • Given the following facts, the GC failed to establish a causal connection between Bandy's participation in the strike and his discharge:
    • Bandy did not hold a significant role in the strike;
    • Nichols did not take adverse action against other individuals who participated in the same strike; and
    • after the strike ended, Bandy agreed to Nichols's instruction (to all returning employees) to pledge not to strike again on the same issue.
In a concurring opinion, Circuit Judge Melloy:
  • Agreed with the majority's decision to deny enforcement of the Board order.
  • Asserted the case should be remanded to permit the Board to apply the appropriate analysis to the facts.
In a dissenting opinion, Circuit Judge Murphy asserted that:
  • Substantial evidence shows that Nichols's had union animus when it terminated Bandy, including:
    • the illegal use of a no-strike pledge;
    • disparate enforcement of its zero-tolerance violence policy; and
    • discriminatory treatment of striking workers.
  • There were conflicting ways to view the evidence and the US Supreme Court has held that a circuit court "may not displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo" (United Exposition Serv. Co., Inc. v. NLRB, 945 F.2d 1057, 1059 (8th Cir. 1991)).

Practical Implications

The Eighth Circuit's decision in Nichols Aluminum LLC is an example of an appellate court declining to ratify the Board's recent easing of the GC's burden when attempting to prove unlawful motivation. Other courts may follow the Eighth Circuit in denying enforcement of the Board's orders in similar circumstances. However, the Board is likely not to change its course from permitting the GC to infer unlawful motive from an employer's "general animus" until several circuits, most importantly the DC Circuit, decline to enforce orders relying on that inference.