Over the past year, employers have bemoaned the fact that the National Labor Relations Board (NLRB) has decided: that two nursing home employees should be reinstated despite performance deficiencies that included patient safety issues; that an employee’s online and obscenity-laced rant was “protected activity” under the National Labor Relations Act (NLRA); and that an employee’s discussion of a help-wanted ad with a co-worker was “concerted activity” under the NLRA.
A recent 8th U.S. Circuit Court of Appeals may change the prevalent downcast mood of employers. There, the Court refused to enforce an NLRB decision in which the Board found a company to have violated the NLRA by terminating a union employee who made what the Court called a “cut throat” gesture. Nichols Aluminum, LLC v. NLRB, No. 14-3202, August 13, 2015.
- Nichols Aluminum’s unionized casting plant in Davenport, Iowa, employed approximately 165 employees.
- On January 20, 2012, the International Brotherhood of Teamsters Union, Local No. 371 (the union) called for a strike;
- Most employees participated in the strike, and Nichols hired replacement workers to fill some positions;
- Bruce Bandy, a 34-year Nichols employee, “worked the picket line once a week” but took no strategic or leadership role in the strike.
The union ended the strike in April, and striking workers, including Bandy, were recalled to work. Bandy took a pledge – required by Nichols from returning workers – that he would not strike again over the same dispute.
After returning to work, Bandy was involved in a confrontation with an employee with whom he had an admittedly difficult working relationship. During that confrontation, and according to the other employee, Bandy “drew his thumb across his throat,” which the employee understood as meaning “I’m going to cut your throat.” Bandy ultimately was fired for that gesture, which violated the company’s “zero tolerance policy” against violence or threats.
The union filed an unfair labor practices charge with the Board, challenging Bandy’s termination. An Administrative Law Judge (ALJ) concluded that Nichols did not violate the NLRA, and that the “cut throat” action could have been reasonably construed as a serious threat.
However, upon review by a three-member panel of the NLRB, the ALJ’s decision was reversed and the panel found that Bandy’s firing violated the NLRA, based primarily on the Company’s allegedly inconsistent response to other violations of its zero tolerance policy (one example cited was that the Company rehired an individual after firing him for cleaning and loading a gun in the workplace).
On appeal, the Eighth Circuit found a lack of connection between Bandy’s discharge and his union-related activity. Because Bandy did not “distinguish himself from the other strikers” who were not terminated after discipline, the NLRB could not carry its burden to show the requisite causal connection between Bandy’s strike activity and his firing and, therefore, could not prove that but-for Bandy’s union activity or membership, he would not have bene discharged.
This opinion should not be read as a seismic shift in this area of the law. The ultimate decision here was made by a federal court and not the NLRB. Unlike the courts, the NLRB is likely to continue the path it regularly has taken on these cases, evidenced by its decisions earlier this year and last. Here are the things that employers can do to help to avoid liability under Board review of disciplinary actions:
- Assure consistent application of disciplinary processes;
- Objectively and fully document termination reasons, including the policy or procedure violated; and
- Carefully review planned discipline to assure that union activity is not a factor in any decision to impose an adverse employment action.
(Photo is of Gino Corrado in 1945 Columbia Pictures classic comedy short “Micro-Phonies.”)