Nichols Aluminum, LLC v. Nat'l Labor Relations Bd.
| Decision Date | 13 August 2015 |
| Docket Number | Nos. 14–3001,14–3202.,s. 14–3001 |
| Citation | 797 F.3d 548 |
| Parties | NICHOLS ALUMINUM, LLC, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. National Labor Relations Board, Petitioner v. Nichols Aluminum, LLC, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Keith J. Brodie, argued, Michael A. Snapper, on the brief, Grand Rapids, MI, for Petitioner.
Douglas Callahan, argued, Washington, DC, for Respondent.
Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.
Nichols Aluminum, LLC (Nichols) petitions for review of a National Labor Relations Board (Board) order finding Nichols violated Section 8(a)(1) and (3) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), (3), by discharging union member Bruce Bandy on April 27, 2012, for participating in a strike. The Board seeks enforcement of its order. Having jurisdiction under 29 U.S.C. § 160(e) and (f), we grant the petition for review and deny enforcement.
Nichols manufactures aluminum at two plants in Davenport, Iowa: the Nichols Aluminum Casting plant (casting plant) and the Nichols Aluminum Finishing plant (finishing plant). Nichols employed approximately 165 employees at the casting plant. Since at least 1978, Nichols's employees have been represented by the International Brotherhood of Teamsters Union, Local No. 371 (the union).
On January 20, 2012, during negotiations to replace a collective bargaining agreement (CBA) that had expired in November 2011, the union called for a strike. Most of the casting plant employees participated in the strike—although a few crossed the picket line. Nichols hired replacement workers to fill the gap.
Bandy, a 34–year Nichols employee and blending operator at the casting plant, participated in the strike. He worked the picket line once a week but did not take a strategic or leadership role in the union or the strike, nor did he otherwise distinguish himself from the other strikers.
On April 6, 2012, the union ended the strike. Nichols began recalling to work those strikers who had not been permanently replaced, including Bandy. As employees returned, Nichols asked them to take what the parties here describe as a “no-strike pledge.” The pledge required employees to say they were returning to work at Nichols and would not “strike again over the same dispute.” The pledge notified employees that doing so would subject them “to discipline up to and including the possibility of discharge.”
Without objection, Bandy verbally took the pledge when he returned to work on April 11, 2012, but did not sign a written pledge form as some others had done before the union instructed its members to refuse. Nichols maintains the pledge merely confirmed returning employees would not engage in unlawful intermittent striking, which the Board's General Counsel agrees is not protected activity under the Act.
At a post-strike meeting that Bandy attended, Nichols also reviewed and distributed its longstanding “zero tolerance” workplace violence policy, which was incorporated into the CBA. With the help of a PowerPoint presentation, Nichols reminded returning strikers—as well as replacement workers and employees who had crossed the picket lines—that “[h]arassing, disruptive, threatening, and/or violent situations or behavior by anyone, regardless of status, will not be tolerated and” offending employees would be “subject to discharge for the first offense.” Nichols posted a version of that notice throughout its plants. The policy provided employees were subject to discharge for, among other things, “[m]aking threatening remarks ... that constitute a threat against another individual,” and “[a]ggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress.”
On April 25, 2012, two weeks after his return, Bandy was involved in a confrontation with Keith Braafhart, a finishing plant employee who crossed the picket line and began working in the casting plant during the strike. Bandy testified his working relationship with Braafhart was “not good” and that Braafhart called him derogatory names from the time they first met.
At the time of the confrontation with Bandy, Braafhart was driving a forklift up a ramp that led to one of the aluminum melders. Bandy, who had recently exited the break room near the ramp, waited for the forklift to pass. Braafhart honked the horn as he was required; however, he may have sounded the horn “a little more” than necessary. When Bandy recognized Braafhart, Bandy drew his thumb across his neck in a “cut throat” gesture that Braafhart construed as a threat. Braafhart testified Bandy looked right at him with a “death stare” from about ten feet away, “gave [him] the mean mug, drew his thumb across his throat at [him] and that was it.” Braafhart understood the gesture to mean “I'm going to cut your throat.”
After the gesture, Braafhart parked the forklift and asked a nearby witness, Sam Harroun, whether he had seen the gesture. Harroun “chuckled” and said he had seen Bandy. Harroun, who thought Bandy might have been signaling Braafhart to stop “blaring his horn,” did not perceive the gesture as a threat. When Braafhart told Bandy, “I'm taking you upstairs,” Bandy replied that he was “scratching [his] throat.” As Braafhart left to find a supervisor, Bandy chuckled as he told Harroun “his throat itched and that was it.”
Braafhart reported the incident to Nichols's management and prepared a written statement. Bandy's supervisor, Vick Hansen, asked Bandy to join him in a meeting with Plant Manager Bill Hebert, Human Resources Vice–President Mike Albee, and a union steward. At the meeting, Bandy denied making any threat, again explaining he was “scratching his throat.”1
Albee sent Bandy home, advising him Nichols would be in touch. Bandy gathered his things and left without an escort. Continuing its investigation, Nichols spoke with Harroun, who opined the gesture was not a threat. After discussing the matter with his management team, Hebert decided to discharge Bandy for violating Nichols's “zero tolerance” workplace violence policy. On April 27, 2012, Human Resources Manager Kristy Riley notified Bandy he had been discharged.
On June 8, 2012, the union filed an unfair labor practices charge with the Board challenging Bandy's termination. The Board's General Counsel issued a complaint alleging Nichols discharged Bandy for participating in the strike, in violation of Section 8(a)(1) and (3) of the Act. On April 8, 2013, after observing the demeanor of the key witnesses at trial and examining the record evidence, the ALJ concluded Nichols did not violate the Act by discharging Bandy after he made a “cut throat” gesture that Braafhart and Nichols “reasonably construed” as a serious threat.2
In analyzing Nichols's motive for discharging Bandy, the ALJ rejected the General Counsel's proposal that Bandy's “strike participation alone provide [d] sufficient circumstantial proof upon which to predicate animus.” Noting that Bandy participated in the strike with almost all of Nichols's other employees but did not take an “unusual, strategic, or significant role during the walkout,” the ALJ searched the record for evidence of discriminatory motive. The ALJ found “no background of independent Section 8(a)(1) violations during the period after the strike” nor “any evidence of hostile remarks or actions by [Nichols] since the strike concluded and employees returned to work.” Reviewing what the ALJ described as “a mixed bag of Company responses to employee-on-employee confrontations,” the ALJ concluded Nichols's prior enforcement of its no-violence policy did not establish that Nichols “engaged in the disparate treatment of Bandy by discharging him for threatening another employee with serious physical injury or worse.” Based on its review of the record, the ALJ found insufficient evidence of antiunion animus to support the discrimination charge.
On August 18, 2014, the Board, over a strong dissent, reversed the ALJ's order, concluding Nichols “violated Section 8(a)(3) and (1) of the Act by discharging ... Bandy.” As the General Counsel acknowledges, “The Board adopted many of the findings and rulings of the [ALJ], including the [ALJ]'s witness credibility determinations, but the Board reversed the [ALJ]'s ultimate conclusion.” Rejecting the ALJ's determination that the General Counsel had failed to show Nichols discharged Bandy for participating in the strike, the Board, “[c]ontrary to the [ALJ],” stated it found “direct evidence of animus and a sound basis for inferring it.” Specifically, the Board concluded the General Counsel had met its burden of showing Bandy's strike activity was a motivating factor in Nichols's decision to discharge him based upon (1) the “no-strike pledge” to which Bandy agreed; (2) “the timing of Bandy's discharge” after the strike; and (3) what the Board saw as Nichols's “disparate treatment of Bandy's conduct” under its disciplinary policy. Deciding Nichols failed to show it would have fired Bandy regardless of his participation in the strike, the Board ordered Bandy reinstated with backpay and other damages.
The dissent sharply criticized the majority for “rely[ing] on scant evidence and inference to put themselves in position to substitute their judgment for [Nichols's] as to what ... Bandy did and whether it warranted discharge,” citing NLRB v. Blue Bell, Inc., 219 F.2d 796, 798 (5th Cir.1955). See also Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1105 (D.C.Cir.2001) ( ...
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