This past Monday, the National Labor Relations Board reversed an Administrative Law Judge’s decision and held that Nichols Aluminum, LLC had unlawfully discharged an employee in violation of the National Labor Relations Act because he engaged in concerted and protected activity. In Nichols Aluminum, LLC, 361 NLRB No. 22 (August 18, 2014), Nichols’ longtime employee Bruce Bandy participated in a labor strike. When Bandy and the other strikers returned to the plant, Nichols’ managers made Bandy and the other workers sign a pledge promising not to strike again “over the same dispute.” Bandy agreed not to strike again over the same dispute.
About two weeks after Bandy returned to work, Nichols employee Braafhart (who had not participated in the strike) was driving a forklift in the plant. Bandy saw Braafhart and made a “cut throat” gesture by sliding his hand across his neck with his thumb pointing upward. Braafhart reported the gesture to management officials, who in turn suspended Bandy and ultimately discharged him for violating its “Zero Tolerance Policy” regarding workplace violence and threats.
In its decision reversing the ALJ and overturning Bandy’s discharge, the Board noted that it was undisputed that Nichols’ “Zero Tolerance Policy” had been around for years and that all of the plant employees, including Bandy, were well aware of it. However, the record reflected that the ”Zero Tolerance Policy” had been applied inconsistently over the years, with employees generally being discharged for threats of major physical violence, while other less overt threats were treated more leniently.
Contrary to the ALJ, the Board reasoned that the General Counsel had met its Wright Line burden by establishing that 1) Bandy engaged in union activity by participating in a strike; 2) the employer knew about it; and 3) the employer harbored union animus because Nichols forced the returning strikers to sign a “no strike” pledge. The Board leaned heavily on the “no strike” pledge in inferring that Nichols harbored union animus. The pledge, the Board reasoned, “conditioned the strikers’ return to work on their promise to refrain from lawful protected activity.” Accordingly, the GC satisfied his burden of demonstrating union animus.
Because the GC met its initial burden under Wright Line, Nichols had to show that it would have discharged Bandy regardless of his participation in the strike. The Board held that Nichols had failed to meet this burden because of its inconsistent application of its “Zero Tolerance Policy.” Since Nichols did not consistently terminate employees for violating the policy, the Board could not find that Nichols’ discharge of Bandy ”conformed to established disciplinary practice.” Accordingly, the Board found that Nichols violated Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act by discharging Bandy for participating in a labor strike, despite the fact that Bandy threatened an employee with the “cut throat” gesture. Bandy was awarded full backpay, as well as interest, and a payment to compensate him for any tax consequences suffered from receiving a lump sum payment.
In dissent, Member Johnson opined that the Board was substituting its own ideas of business management for those of the employer. Member Johnson also agreed with the ALJ that the GC failed to meet his initial Wright Line burden that Nichols discharged Bandy because of union animus, particularly because there was ”no apparent connection between the no-strike pledge and Bandy’s discharge.” Bandy, Member Johnson reasoned, was not discharged for striking. Rather, he was discharged for making threats against a co-worker.
This decision provides another example of the current Board’s pro-employee bent. Accordingly, employers need to be particularly careful to consistently apply workplace rules and standards. Failing to do so could cause a completely reasonable discharge to turn into an unfair labor practice charge.