Can an employer fire an employee who allegedly makes a throat slashing motion to a co-worker who interprets the motion as a threat?  According to a recent NLRB decision, maybe not. Nichols Aluminum, LLC and Teamsters Local Union No. 371, Case No. 25-CA-08260, august 18, 2014.

Bruce Bandy has been employed since at least 1978 by Nichols Aluminum, which operates aluminum casting and finishing plants.  Bandy, a longtime Union member, participated in a union-initiated strike on January 20, 2012.

At the time of their return to work, Bandy and the other strikers were asked to sign a written “promise” not to strike again over the “same dispute,” which was not further defined. Bandy agreed to the pledge. In addition, and in a post-strike meeting with employees, management emphasized certain company policies, including its “Violence in the Workplace” policy, which prohibited “Harassing, disruptive, threatening, and/or violent situations or behavior by anyone.”

Two weeks after his return from striking, Bandy was fired for a violation of the company’s “zero tolerance” policy concerning threats and harassment. The incident that led to the firing occurred when Bandy was walking next to a forklift being driven by an employee who had not participated in the strike. That employee honked the forklift horn a few times at Bandy; Bandy then looked at the driver and brought his hand across his neck with his thumb pointing up in what the driver construed as a “cut throat” gesture.

The driver reported Bandy’s gesture to HR, and to the Plant Manager and Bandy’s supervisor. When later questioned about the incident, Bandy denied having made the gesture, and said that he was “merely scratching his throat.” Bandy was suspended and was discharged two days later.

The Union filed an unfair labor practice charge, and a complaint was filed against the Company alleging a violation of Section 8 of the National Labor Relations Act, stating that Bandy had been fired because he engaged in union activity when he participated in the strike. The case was heard by an Administrative Law Judge (ALJ) who found that the situation presented “a close call,” but that the evidence did not show that the Company engaged in disparate treatment of Bandy when it fired him for a violation of its zero tolerance policy.

However, upon review by a three-member panel of the National Labor Relations Board (NLRB), that decision was reversed, and the panel found that Bandy’s firing violated the NLRA. That decision was based primarily on the fact that the Company’s response to other violations of the zero tolerance policy; the Company did not consistently discharge employees, even for relatively severe misconduct, and actually rehired an individual after firing him for cleaning and loading a gun in the workplace.

The Company’s inconsistent response to workplace violence issues, coupled with the short two-week period between the end of the strike and Bandy’s firing, allowed the Board to find that because Bandy’s firing did not “conform to an established disciplinary practice,” the actual reason for the firing was Bandy’s participation in a lawful work strike.

The penalty imposed by the NLRB included Bandy’s reinstatement to work with full seniority, removal of the disciplinary action from his personnel file, payment of lost wages and benefits, and the posting of a Notice setting out the decision and employee rights provided by the NLRA, along with an electronic link to the Board’s full decision.

The issue of concern to employers raised by this decision is whether or not employment decisions will be second-guessed by governmental agencies or courts.

Typically, an employer’s decision to hire, fire, or discipline an employee will not be reversed by an agency or court unless that decision is based upon illegal principles. The questions that is facing employers more and more frequently is where that line is being drawn, especially in recent decisions like this one. With respect to activity that is suspect under the NLRA, the line clearly continues to move and is something to which employers must continue to pay attention.

This case also is a clear example of the ramifications of inconsistently applying company policies. Had the Company been more consistent in its application of the zero tolerance policy, the Board would not have been able to point to it as evidence of disparate treatment in Bandy’s situation.