Nichols Aluminum, LLC v. Nat'l Labor Relations Bd., No. 14-3202 (8th Cir. 2015)
Annotate this CaseDuring negotiations with Nichols to replace an expired collective bargaining agreement, the union called for a strike. Most employees participated; some crossed the picket line. Nichols hired replacement workers. Bandy, a 34-year employee, participated, but did not take a strategic or leadership role. The union ended the strike. Nichols began recalling strikers, including Bandy. Nichols requested, and, without objection, Bandy took a pledge that they would not “strike again over the same dispute,” subject to discipline. Nichols maintains the pledge merely confirmed returning employees would not engage in unlawful intermittent striking, which is not protected activity. Nichols also distributed its longstanding “zero tolerance” policy, which was incorporated into the CBA: “[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 notice. Two weeks after his return, Bandy drew his finger across his throat in a “cut throat” gesture toward Braafhart, who had crossed the picket line. Bandy was discharged. T An ALJ concluded Nichols did not violate National Labor Relations Act, 29 U.S.C. 158(a)(1), (3), but the NLRB concluded that Bandy’s strike activity was a motivating factor and ordered Bandy reinstated with back-pay. The Eighth Circuit declined to enforce the order.
Court Description: Riley, Author, with Murphy and Melloy, Circuit Judges] Petition for Review - Labor Law. The Board erred in finding Nichols violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging an employee on the ground he participated in the protected activity of striking; the Board did not hold the General Counsel to its burden of proving discriminatory animus toward the employee's protected conduct and that the protected conduct was a substantial or motivating factor in the decision to discharge the employee; the Board's order is set aside. Judge Melloy, concurring. Judge Murphy, dissenting.
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