Nichols Aluminum, LLC v. National Labor Relations Board

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3001
___________________________
Nichols Aluminum, LLC
lllllllllllllllllllllPetitioner
v.
National Labor Relations Board
lllllllllllllllllllllRespondent
___________________________
No. 14-3202
___________________________
National Labor Relations Board
lllllllllllllllllllllPetitioner
v.
Nichols Aluminum, LLC
lllllllllllllllllllllRespondent
____________
National Labor Relations Board
____________
Submitted: May 12, 2015
Filed: August 13, 2015
____________
Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.
____________
RILEY, Chief Judge.
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.
I. BACKGROUND
A. Facts
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.
-2-
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
-3-
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
1
At trial, Bandy changed his story, claiming the gesture was an involuntary
reaction as he lurched back to avoid the forklift. The presiding administrative law
-4-
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.
B. Procedural History
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
judge (ALJ) rejected Bandy’s “explanation and reenactment” of the lurch as
“inconsistent and incredible.”
2
The ALJ evaluated the propriety of Bandy’s discharge under “[t]he so called
Wright Line analysis[, which] applie[s] when an employer articulates a facially
legitimate reason for its termination decision, but that motive is disputed,” NLRB v.
RELCO Locomotives, Inc., 734 F.3d 764, 780 (8th Cir. 2013) (citing Wright Line,
251 N.L.R.B. 1083 (1980), approved by NLRB v. Transp. Mgmt. Corp., 462 U.S. 393,
397-99, 401-03 (1983), overruled in part on other grounds by Dir., Office of Workers’
Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 277-78
(1994)).
-5-
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
-6-
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) (“The Board does not have authority
to regulate all behavior in the workplace and it cannot function as a ubiquitous
‘personnel manager,’ supplanting its judgment on how to respond to unprotected,
insubordinate behavior for those of an employer. . . . [A]n employer may discharge
an employee for a good reason, a bad reason, or no reason, so long as it is not for an
unlawful reason.”). The dissent agreed with the ALJ “that the General Counsel failed
to [establish] that animus against protected strike activity motivated the discharge.”
The dissent also admonished the Board for “mischaracteriz[ing] the General
Counsel’s initial Wright Line burden to prove that animus against union or other
protected concerted activity motivated an adverse action.” Emphasizing (1) the
absence of any evidence to “support an inference that animus against [Bandy’s]
particular strike activity,” which was indistinguishable from scores of other strikers,
“caused [Nichols] to single him out for reprisal,” and (2) the lack of any “apparent
connection between the no-strike pledge and Bandy’s discharge,” the dissent
concluded the General Counsel failed to prove the requisite “nexus between Bandy’s
strike participation and the motivation for his discharge.”
II. DISCUSSION
A. Standard of Review
“We will enforce the Board’s order if the Board has correctly applied the law
and its factual findings are supported by substantial evidence on the record as a
whole, even if we might have reached a different decision had the matter been before
us de novo.” Town & Country Elec., Inc. v. NLRB, 106 F.3d 816, 819 (8th Cir.
1997). “‘Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
NLRB v. La-Z-Boy Midwest, 390 F.3d 1054, 1058 (8th Cir. 2004) (quoting Consol.
Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)).
-7-
“In considering whether substantial evidence supports the Board’s decision, we
must take into account ‘whatever in the record fairly detracts from its weight,’”
NLRB v. MDI Commercial Servs., 175 F.3d 621, 630 (8th Cir. 1999) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)), and “‘must view the
inherent strengths and weaknesses of the inferences drawn by the Board,’” Carleton
Coll. v. NLRB, 230 F.3d 1075, 1078 (8th Cir. 2000) (quoting GSX Corp. of Mo. v.
NLRB, 918 F.2d 1351, 1357 (8th Cir. 1990)). “‘The Board, in reaching its decision,
is permitted to draw reasonable inferences, and to choose between fairly conflicting
views of the evidence. It cannot rely on suspicion, surmise, implications, or plainly
incredible evidence.’” Concepts & Designs, Inc. v. NLRB, 101 F.3d 1243, 1245 (8th
Cir. 1996) (quoting Mead & Mount Constr. Co. v. NLRB, 411 F.2d 1154, 1157 (8th
Cir. 1969)).
“We examine the Board’s findings more critically when, as here, the Board’s
conclusions are contrary to the ALJ’s.” Earle Indus., Inc. v. NLRB, 75 F.3d 400, 404
(8th Cir. 1996). “Although the substantial evidence standard still applies, the Board’s
evidence must be stronger than would be required in a case where it had accepted the
ALJ’s findings, since the ALJ’s opinion is part of the record against which the
substantiality of the evidence must be measured.” GSX Corp., 918 F.2d at 1356
(internal citations omitted).
B. Discriminatory Discharge
Section 8(a)(1) of the Act makes it “an unfair labor practice for an employer
to interfere with, restrain, or coerce employees in the exercise of” their rights to
organize, collectively bargain, and engage in similar concerted activities. 29 U.S.C.
§ 158(a)(1). Section 8(a)(3) prohibits employers from using “discrimination in regard
to hire or tenure of employment . . . to encourage or discourage membership in any
labor organization.” Id. at § 158(a)(3). Although an employer violates Section
8(a)(1) and (3) of the Act if it discharges an employee for engaging in protected
activities, “employers retain the right to discharge workers for any number of other
-8-
reasons unrelated to the employee’s union activities.” Transp. Mgmt., 462 U.S. at
394.
To establish an unfair labor practice under the Wright Line framework, the
Board’s General Counsel must prove “that the employee’s protected conduct was a
substantial or motivating factor in the adverse action.” Id. at 401. If, and only if, the
General Counsel meets that burden, the burden shifts to the employer to “‘exonerate
itself by showing that it would have’” taken the same action “‘for a legitimate,
nondiscriminatory reason regardless of the employee’s protected activity.’” Carleton
Coll., 230 F.3d at 1078 (quoting Earle Indus., 75 F.3d at 404). This analysis is
designed to “protect[] the rights of employees while preserving an employer’s right
to discharge an employee for a valid cause.” NLRB v. Fixtures Mfg. Corp., 669 F.2d
547, 550 (8th Cir. 1982).
In the case at bar, the General Counsel charged Nichols with unlawfully
discharging Bandy for participating in the strike. Nichols does not dispute that Bandy
participated in protected strike activity and that Nichols was aware of it. Nichols,
instead, argues the Board “incorrectly applied the long-established Wright Line
standard,” improperly relieving the General Counsel of its burden to prove Bandy’s
protected activity motivated Nichols’s decision to terminate him, and “made factual
findings that were not supported by substantial evidence.” See RELCO Locomotives,
734 F.3d at 780 (“In appraising a challenge to an employee’s termination allegedly
caused by protected labor activity, the question is whether the employee’s termination
was motivated by the protected activity.”). Reiterating Bandy’s unremarkable role
in the strike and his ready assent to the pledge, Nichols contends the General Counsel
failed to establish the requisite causal connection between Bandy’s participation in
the strike “and the alleged discriminatory act”—Bandy’s discharge. Nichols’s points
are well taken.
-9-
Under Wright Line, “our task in resolving cases alleging violations which turn
on motivation is to determine whether a causal relationship existed between
employees engaging in union or other protected activities and actions on the part of
their employer which detrimentally affect such employees’ employment.” Wright
Line, 251 N.L.R.B. at 1089. To prove discriminatory discharge, the General Counsel
must establish “‘that the employee was discharged for his union activities or
membership—that but for his union activities or membership, he would not have been
discharged.’” Concepts & Designs, Inc., 101 F.3d at 1245 (quoting Mead & Mount
Constr., 411 F.2d at 1157). Simple animus toward the union “is not enough. ‘While
hostility to [a] union is a proper and highly significant factor for the Board to consider
when assessing whether the employer’s motive was discriminatory, . . . general
hostility toward the union does not itself supply the element of unlawful motive.’”
Carleton Coll., 230 F.3d at 1078 (alterations in original) (quoting GSX Corp., 918
F.2d at 1357).
After careful review of the administrative record, we conclude the Board, in
reversing the ALJ’s decision and finding Nichols violated Section 8(a)(1) and (3) of
the Act, misapplied the Wright Line standard and failed to analyze causation
properly. Because the Board did not hold the General Counsel to its burden of
proving discriminatory animus toward Bandy’s “protected conduct was a substantial
or motivating factor in” Nichols’s decision to discharge him, Transp. Mgmt., 462 U.S.
at 401, we are unable to enforce the Board’s order. See Multimedia KSDK, Inc. v.
NLRB, 303 F.3d 896, 900 (8th Cir. 2002) (en banc).
III. CONCLUSION
We grant Nichols’s petition for review and set aside the Board’s order. The
Board’s cross-petition for enforcement is denied.
-10-
MELLOY, Circuit Judge, concurring.
I concur with respect to the majority’s decision denying enforcement of the
Board’s order because the Board misapplied the causation element within the Wright
Line standard. Our precedent unequivocally requires more than general hostility
toward a union to satisfy the element of unlawful motive. Carleton College v. NLRB,
230 F.3d 1075, 1078 (8th Cir. 2000). The Board failed to engage in any meaningful
discussion of this requirement. The Board was put on notice, at least by the
dissenting Board member, that in the Eighth Circuit the Wright Line analysis requires
more than a showing of anti-union animus and protected activity. There must be a
nexus between the union activity and the discharge. To be sure, the level of anti-
union animus can certainly be considered and is a highly relevant factor in
establishing that connection. However, in this case, the Board made no attempt to
“connect the dots” between the anti-union animus, Bandy’s strike participation, and
his ultimate discharge.
The dissent makes a powerful argument for the proposition that, had the Board
done the correct analysis, it could show a causal connection. The disparate treatment
of Bandy, compared to other non-striking employees as outlined in the dissenting
opinion, is extremely troubling. It could very well have provided the substantial
evidence that would have allowed this Court to enforce the Board’s order had it done
the proper analysis. However, as the majority opinion points out, failure to engage
in a proper legal analysis precludes our Court from enforcing the order.
Generally, if an agency applies the wrong legal framework or fails to address
an argument, we have the authority to remand the case to the agency for further
review. See Ademo v. Lynch, Nos. 13–2621, 13–3566, 2015 WL 4568941, at *9 (8th
Cir. July 30, 2015) (immigration); Caviness v. Massanari, 250 F.3d 603, 605–606
(8th Cir. 2001) (social security). In Multimedia KSDK, Inc. v. NLRB, 303 F.3d 896,
900 (8th Cir. 2002) (en banc), however, we held that unless the “Board offers an
-11-
alternative theory on which to uphold its decision” or the Board requests a remand,
we cannot remand a case to the Board. I write separately to emphasize that, in the
absence of this precedent, I would be inclined to remand this case and permit the
Board to apply the correct legal framework. A review of the record indicates Nichols
may have engaged in more than general anti-union animus. But, as the majority
opinion points out, precedent prevents us from remanding this case. Therefore, I
concur with the majority opinion and deny enforcement of the Board’s order.
MURPHY, Circuit Judge, dissenting.
Because substantial evidence in the record shows that Nichols Aluminum
(Nichols) violated Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act
by terminating Bruce Bandy for engaging in the protected conduct of striking, I
dissent. Record evidence of the company's animus against striking includes an illegal
use of a no strike pledge, disparate enforcement of its stated policy of zero tolerance
of violence, and its discriminatory treatment of returning strikers. The Board
concluded from such evidence that the General Counsel met his Wright Line burden
to show that animus against the workers' strike motivated the illegal termination of
Bruce Bandy who participated on the picket line.
The Board was entitled to consider the Nichols no strike pledge as strong
evidence of animus against the protected conduct of striking, conduct in which Bandy
had participated. Nichols hired replacement workers during the strike and converted
100 of them to permanent status on April 4. When the union ended its strike, Nichols
asked returning strikers to agree that they would be subject to discharge if they went
"on strike again over the same dispute." As the Board noted, this no strike pledge did
not define the term "same dispute" at a time when negotiations on a new contract
were still ongoing. Two of the three Board members stated they would have found
the no strike pledge unlawful in itself had it been alleged as a separate violation of the
Act, and it was "strong evidence of animus toward the protected conduct of striking."
-12-
To condition employment on a promise not to engage in protected activity has been
found unlawful, see In re Pratt Towers, Inc., 338 N.L.R.B. 61, 64 (2002), and hostility
toward a union is "a proper and highly significant factor for the Board to consider
when assessing" whether particular conduct resulted from a discriminatory motive.
Carleton Coll. v. NLRB, 230 F.3d 1075, 1078 (8th Cir. 2000) (internal quotation
marks omitted).
In addition to Nichols' use of an unlawful no strike pledge, the Board also
considered the company's inconsistent application of its zero tolerance policy in favor
of non strikers. Two incidents not mentioned by the majority are particularly relevant
to the Board's determination that Bandy was terminated for his participation in
protected labor activity. Each of the incidents involved replacement workers who had
not participated in the strike but who had engaged in similar or more severe conduct
than Bandy's gesture. Neither was terminated.
The first incident occurred on May 4, 2012, one week after Bandy's
termination. When returning striker Robert Schalk was clocking out, he saw
replacement employee Craig Sulzberger grab himself in the crotch and yell "What the
fuck are you looking at, you got a fucking problem?" Schalk left the building, but
outside he was accosted by Sulzberger who asked him "if [he] thought he was pretty
and what his fucking problem was." While Schalk attempted to reach his car,
Sulzberger stepped in front of him and continued to curse. Schalk suggested they talk
to a supervisor, and Sulzberger responded "that would be fucking fine, let's fucking
do it." When they spoke with supervisor Phil McBroom, he asked Schalk "What the
fuck do you want me to do about it?" Schalk responded that he thought they were to
report such incidents as part of the zero tolerance policy. McBroom told him he
"should fucking grow up," and if he were to do anything about it, he would fire both
men. After Schalk reported the incident to human resources and plant manger Bill
Hebert, Hebert indicated they would investigate. Sulzberger was eventually written
-13-
up for violating the policy, but he was not discharged. In October Schalk resigned,
citing a hostile work environment.
In the second incident, replacement worker Sam Harroun made a verbal threat
to another employee during a heated conversation about which department was to
blame for allowing molten aluminum to cool. After a comment by Harroun was
contradicted by another employee, Harroun turned and said "I'm going to take you out
back and beat your ass." When a third employee interrupted that Harroun often slept
on his shift, Harroun replied "well, you're nothing but a little bitch." A supervisor
intervened, and the encounter ended. No further action was taken by supervisors in
response to Harroun's threat.
On appeal Nichols claims that Sulzberger and Harroun, the two comparators
identified by the General Counsel, both engaged in conduct that was less severe than
Bandy's cut throat gesture. The record does not support this claim, however.
Harroun, the sole neutral witness, told Nichols during the investigation that he had
not perceived Bandy's gesture to be "any threat at all," and he testified that the gesture
was commonly used around the plant to shut off or stop something. He had
understood the motion to be a signal for Keith Braafhart to stop blaring the forklift's
horn. While Bandy denied making any threat, Harroun made an explicit verbal threat
and Sulzberger cursed a coworker and physically blocked access to his car.
Nevertheless, striker replacements Sulzberger and Harroun were not terminated while
Bandy was.
Nichols' treatment of an employee not named as a comparator, Mike
McGolthlen, also shows preferential treatment of non strikers. Before the strike,
McGolthlen brought a handgun to work which he cleaned and loaded with a clip of
bullets. Although he made no explicit threats, a coworker was alarmed and reported
him to supervisors. McGolthlen was fired under the company's zero tolerance policy
on January 13, 2012, but he was rehired as a replacement employee after the strike
-14-
began, a mere one month later. This rehiring was evidence that Nichols overlooked
even severe violations of its reported zero tolerance policy. Nichols raises two other
instances in which it fired employees for violating the zero tolerance policy, but both
situations involved explicit threats. Before the strike, plant manager Hebert fired
employee Ed Fountain for verbally threatening to bring a baseball bat into the office
to beat a female human resources representative. After the strike ended, Hebert
discharged non striker Roosevelt Smith after he told his supervisor he had weapons
in his vehicle and he intended to "shoot him in the gut." The severity of these
incidents distinguishes them from Bandy's hand gesture, and neither shows Nichols
consistently applied its policy.
Although the majority concludes that the Board improperly analyzed causation
under the Wright Line framework, the General Counsel's initial Wright Line burden
is simply "to demonstrate that the employee was engaged in protected activity, that
the employer knew of this protected activity; and that the termination was motivated
by anti-union animus." NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 783 (8th
Cir. 2013). The Board applied the proper Wright Line framework, and substantial
evidence supports its conclusion that Nichols' "animus toward the recently ended
strike motivated [it] to discharge Bandy."
The Supreme Court has explained that our appellate review "may not displace
the Board's choice between two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been before it de novo."
United Exposition Serv. Co., Inc. v. NLRB, 945 F.2d 1057, 1059 (8th Cir. 1991)
(internal quotation marks omitted) (quoting NLRB v. Walton Mfg. Co., 369 U.S. 404,
405 (1962). We must uphold the Board's decision if the record as a whole contains
substantial evidence to support its factual findings. Town & Country Elec., Inc. v.
NLRB, 106 F.3d 816, 819 (8th Cir. 1997).
-15-
Rather than applying the appropriate standard, acknowledging the Board's
expertise, and considering both the no strike pledge and disparate treatment of
striking employees by Nichols, the majority has substituted its own judgment for that
of the Board. The Board's determination that Nichols violated the Act by terminating
Bandy for his participation in the worker's strike is supported by substantial evidence,
and its order should be enforced. I therefore dissent.
______________________________
-16-