Nichols Aluminum, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 2014

361 N.L.R.B. 216 (N.L.R.B. 2014)

216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nichols Aluminum, LLC and Teamsters Local Union
No. 371. Case 25–CA–082690
August 18, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On April 8, 2013, Administrative Law Judge Michael
A. Rosas issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a reply brief. The Respondent filed cross-
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondent filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The complaint alleges that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging em-
ployee Bruce Bandy because he engaged in concerted
activity in support of Teamsters Local Union No. 371
(the Union).2 The judge dismissed the complaint, find-
ing that the evidence failed to establish that the Respond-
ent harbored antiunion animus and finding, further, that
the Respondent had lawfully discharged Bandy under its
antiharassment policy. For the reasons set forth below,
we disagree as to both findings and conclude that Ban-
dy’s discharge violates the Act as alleged.
Facts
A. Bandy’s Participation in the 2012 Strike
The Respondent, which operates aluminum casting and
finishing plants, has had a bargaining relationship with
the Union since at least 1978. After the parties’ collec-
tive-bargaining agreement expired in November 2011
and during bargaining over a successor agreement, em-
ployees began a union-initiated strike on January 20,
1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The judge mistakenly stated that the General Counsel alleged that
Bandy was discharged because he supported the Union in the strike
“the following year.” Because it is clear and undisputed that the strike
preceded, rather than followed, Bandy’s discharge, the judge’s error is
not material.
2012.3 Bandy, a longtime union member who had been
employed by the Respondent since 1978, most recently
as a blender operator, participated in the strike. During
the strike, the Respondent hired replacement employees.
When the strike ended on April 6, the Respondent re-
tained approximately 100 replacement employees and
told the strikers who had not been replaced to report for
work.
When Bandy and other strikers returned to the plant,
the Respondent’s managers told them they could not
work unless they promised not to strike again. The man-
agers presented Bandy and the other strikers with a form
containing a pledge that they would not strike again over
the issues that caused the strike. The form, captioned
“Returning Strikers,” included spaces for the striker to
fill in his name and the date and time. Below that were
two questions, “Are you here to work at Nichols?” and
“Do you promise that you will not go out on strike again
over the same dispute that caused the strike that just end-
ed?” Spaces were provided for a written yes or no an-
swer. The form then stated:

You are now on notice that if you break that promise
and go on strike again over the same dispute you
will be subject to discipline up to and including the
possibility of discharge.

The form did not define the scope of “the same dispute.” It
concluded with spaces for two witnesses’ signatures. A
number of returning strikers signed the form before the Un-
ion intervened and objected; thereafter, the Respondent read
the form to other returning strikers. It is undisputed that
Bandy agreed to the pledge not to strike again over the same
dispute and the Respondent’s managers were aware of this.4
B. Bandy’s Discharge
On April 27, approximately 2 weeks after Bandy’s re-
turn, the Respondent discharged him under its zero-
tolerance (or “No Tolerance”) policy concerning threats
and harassment. Two days earlier, on April 25, employ-
ee Keith Braafhart, who had not participated in the strike,
was driving a forklift near the melding area. Bandy exit-
ed the melding back room and walked to the right of
Braafhart, who slowed the forklift and honked its horn a
few times. In response, Bandy looked at Braafhart and
brought his hand across his neck with his thumb pointing
3 All dates refer to 2012, unless otherwise stated.
In his decision, the judge refers to the events surrounding the Janu-
ary 20, 2012 strike as an “Organizing Campaign.” As stated above, the
Union has been the representative of the Respondent’s employees since
at least 1978, and the record does not show that any organizing activi-
ties occurred during the timeframe relevant to this case.
4 Given the lack of any dispute that Bandy agreed to the pledge, we
find immaterial the judge’s apparent error in stating that Bandy had
“signed” the pledge.
361 NLRB No. 22

NICHOLS ALUMINUM, LLC 217
up in what Braafhart construed as a “cut throat” gesture.
Braafhart reported Bandy’s gesture and his interpretation
of it as a threat to Human Resources Vice President Mike
Albee and later met with Albee, Plant Manager Bill
Hebert, and Blending Supervisor Vick Hansen. Just pri-
or to reporting the interaction to management, Braafhart
asked replacement worker Sam Harroun if he had wit-
nessed the exchange. Harroun replied that he had and
that he thought that Bandy was signaling Braafhart to
stop blaring the forklift’s horn. Harroun similarly told
management that Bandy’s gesture resembled a request to
shut or cut off something.5 When questioned about the
incident, Bandy denied that he made any gesture, stating
that he was merely scratching his throat. The Respond-
ent suspended Bandy that day and discharged him 2
days’ later.
C. The Respondent’s Zero-Tolerance Policy
The parties’ expired collective-bargaining agreement
contains a provision that certain offenses committed by
employees, “Group 1” offenses, could result in termina-
tion without a prior warning. Group 1 offenses include:
“6. Assault on any employees. Violation of the Compa-
ny’s policy on Workplace Violence and Threats.” The
Respondent’s longstanding “Violence in the Workplace”
policy, in turn, prohibits possession of a firearm on the
Respondent’s property, causing physical injury to anoth-
er person, “[m]aking threatening remarks . . . that consti-
tute a threat against another individual,” and
“[a]ggressive or hostile behavior that creates a reasonable
fear of injury to another person or subjects another indi-
vidual to emotional distress.”
During poststrike meetings with employees, the Re-
spondent emphasized certain policies, including its “Vio-
lence in the Workplace” policy. It displayed a Power-
Point slide stating:

Harassing, disruptive, threatening, and/or violent situa-
tions or behavior by anyone, regardless of status, will
not be tolerated and subject to discharge for the first of-
fense.
5 The Respondent excepts to the judge’s finding that Harroun in-
formed management that he did not construe Bandy’s gesture as a
threat, citing a document that Harroun signed shortly before the hearing
in this case that does not include that fact. But the judge’s finding
accurately reflects Harroun’s credited testimony. When asked if he
ever explained his opinion of Bandy’s gesture to management, Harroun
stated:
Well, we do that all the time. I mean, that’s a hand gesture like when
you want something shut off or cut off, or whatever. I mean, that’s
just a gesture we’ve always used. In my opinion, I told them that day
that that’s what I felt—you know, that he blared the horn, that’s like
enough, it’s done, it’s over, you know. I told Kris Riley the same
thing, that I didn’t think . . . it wasn’t any threat at all. I still don’t be-
lieve it was.

The Respondent also posted the above statement on its bul-
letin boards.
On May 4, following the strike and a week after Ban-
dy’s discharge, employee Robert Schalk, a returning
striker, was waiting at the timeclock when he was ap-
proached by Craig Saltzburger, a striker replacement.6
Saltzburger shouted at Schalk, “What the fuck are you
looking at? You got a fucking problem?” while making
an obscene gesture. Continuing to shout, Saltzburger
followed Schalk outside and attempted to block him from
entering his car. Schalk returned to the facility and
Saltzburger followed him, shouting, “You got a fucking
problem? What are you looking at?” Schalk found Su-
pervisor Phil McBroom and reported the problem. In
response, McBroom told Schalk that he “should fucking
grow up” and that if Schalk wanted him to do something,
he would fire both employees.
Schalk reported the incident with Saltzburger and
McBroom’s response to Human Relations Manager Kris-
ty Riley and Hebert. Although the Respondent asserts
that it informed Saltzburger that his behavior was unac-
ceptable, the record contains no documentary evidence of
discipline.
The record includes evidence of four other incidents
involving violations of the zero-tolerance policy.
• Sometime during the summer, employee Roose-
velt Smith, who did not participate in the strike,
told his supervisor that he had weapons in his car
and was going to shoot him in the gut and cause
the supervisor to “shit in a bag for the rest of his
life.” The Respondent suspended Smith, sent se-
curity to the supervisor’s house, and discharged
Smith 2 weeks’ later.
• On October 12, during a disagreement over a work
issue, striker replacement Harroun told striker re-
placement John Dinkman, “I’m going to take you
out back and beat your ass.” Supervisor Everett
Orey then interjected, “Hey, that’s enough,” but
the Respondent took no other disciplinary action.
• Shortly before the strike, on January 13, the Re-
spondent discharged employee Mike McGlothen
after a fellow employee reported witnessing him
cleaning and loading a pistol in one of the Re-
spondent’s offices, which caused the employee to
feel uncomfortable. A month later, the Respond-
ent rehired McGlothen as a striker replacement.
6 The parties spell employee Saltzburger’s name in various ways,
and the record does not make clear which spelling is correct. For the
purposes of this decision, we will use the same spelling that the judge
uses in his decision.

218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
• One to two years before the strike, the Respondent
discharged employee Ed Fountain for threatening
to go to Human Resources Manager Riley’s office
and beat her with a baseball bat.
Analysis
Under Section 8(a)(3) of the Act, an employer may not
discriminate with regard to hire, tenure, or any term or
condition of employment in order to encourage or dis-
courage membership in a labor organization. To deter-
mine whether an adverse employment action was effect-
ed for prohibited reasons, the Board applies the analysis
set forth in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Under Wright Line, to establish unlawful dis-
crimination on the basis of union activity, the General
Counsel must make an initial showing that antiunion
animus was a substantial or motivating factor for the
employer’s action by demonstrating that: (1) the em-
ployee engaged in union activity; (2) the employer had
knowledge of that union activity; and (3) the employer
harbored antiunion animus. Amglo Kemlite Laborato-
ries, 360 NLRB 319, 325 (2014).7 Proof of animus and
discriminatory motivation may be based on direct evi-
dence or inferred from circumstantial evidence.8 If the
General Counsel makes his initial showing, the burden
shifts to the employer to show that it would have taken
the same action even in the absence of the employee’s
protected activity. Id.
With respect to the General Counsel’s initial showing,
it is undisputed that Bandy engaged in protected activity
by participating in the January–April strike and that the
Respondent was aware of that activity. At issue is
whether the General Counsel demonstrated that the Re-
7 Our dissenting colleague would find that the General Counsel
failed to satisfy Wright Line’s “ultimate inquiry,” i.e., “whether there is
a nexus between an employee’s protected activity and the adverse
employer action in dispute.” Our colleague explained in St. Bernard
Hospital & Health Care Center, 360 NLRB 53, 53 fn. 2 (2013) (H.
Johnson, concurring opinion), that although he would not establish a
showing of nexus as a fourth element of the General Counsel’s initial
burden, he would nonetheless find that such a showing is implicitly
required under Wright Line. To the contrary, the Board has repeatedly
stated that there is no nexus requirement as part of the Wright Line test.
See, e.g., Libertyville Toyota, 360 NLRB 1298, 1301 fn. 10 (2014)
(“proving that an employee’s protected activity was a motivating factor
in the employer’s action does not require the General Counsel to make
some additional showing of particularized motivating animus towards
the employee’s own protected activity or to further demonstrate some
additional, undefined ‘nexus’ between the employee’s protected activi-
ty and the adverse action” (emphasis in original)); Encino Hospital
Medical Center, 360 NLRB 335, 336 fn. 6 (2014); Stevens Creek
Chrysler Jeep Dodge, 357 NLRB 574, 574 fn. 5 (2011).
8 Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004);
Ronin Shipbuilding, 330 NLRB 464, 464 (2000).
spondent harbored antiunion animus, thus meeting his
initial burden.
The judge found that the General Counsel failed to
sustain this burden, citing the absence of allegations of
independent 8(a)(1) violations and a lack of evidence of
statements or conduct by the Respondent that would in-
dicate hostility toward the strike or its participants. Con-
trary to the judge, however, we find that the record in-
cludes both direct evidence of animus and a sound basis
for inferring it.
The Respondent’s treatment of the returning strikers
provides compelling evidence of animus toward the
strike and the employees who engaged in it. As set forth
above, shortly after the strike ended, the Respondent re-
quired the returning strikers, as a condition of returning
to work, to promise not to go back on strike over the
same dispute. The Respondent further put the strikers on
notice that breaking the promise could subject them to
discipline or discharge.
The Respondent argues that the pledge merely sought
assurance that employees would not engage in an illegal
intermittent strike by striking again over the exact same
issue. However, the Respondent elicited no testimony
supporting this assertion, and there is no evidence that it
offered that explanation to employees when it required
that they make the pledge. Moreover, we note that the
strike occurred in the context of contract negotiations and
appears to have been a lawful economic strike.9 Because
the pledge did not define “the same dispute,” employees
could reasonably interpret the promise to encompass all
issues related to the ongoing bargaining. Thus, the
pledge conditioned the strikers’ return to work on their
promise to refrain from lawful protected activity. We
find that this pledge constitutes strong evidence of ani-
mus toward the protected conduct of striking.10
In addition, the timing of Bandy’s discharge, less than
a month after the strike ended, supports an inference that
the strike motivated the Respondent to discharge him,
even though Bandy played no particularly prominent role
9 The Respondent established a preferential hiring list for recalling
the striking employees, thus properly treating them as economic strik-
ers. See, e.g., Saginaw Control & Engineering, Inc., 339 NLRB 541,
542 (2003). There is no evidence that the employees had engaged in an
intermittent strike or intended to do so in the future.
10 The Board has long held that conditioning employment on prom-
ises to refrain from union membership or protected activity is unlawful.
See, e.g., Pratt Towers, Inc., 338 NLRB 61, 64 (2002); Penn Tank
Lines, 336 NLRB 1066, 1068 (2001); Eddyleon Chocolate Co., 301
NLRB 887, 887 (1991). Because the complaint does not allege that the
pledge constituted a separate violation, we do not find one here. How-
ever, Chairman Pearce and Member Hirozawa note that had such a
violation been alleged, they would find the pledge unlawful.

NICHOLS ALUMINUM, LLC 219
in it.11 Moreover, as discussed below, the record shows
that the discharge was not consistent with the Respond-
ent’s previous application of its disciplinary policy, but
instead demonstrated disparate treatment of Bandy’s
conduct. Based on the above-direct and circumstantial
evidence, we find that the Respondent’s animus toward
the recently ended strike motivated the Respondent to
discharge Bandy.
Having found sufficient evidence of animus to support
the General Counsel’s initial burden, we turn to whether
the Respondent has established that it would have dis-
charged Bandy under its zero-tolerance policy even in
the absence of the protected conduct. Contrary to the
judge, we find that the Respondent failed to make that
showing.
It is undisputed that the Respondent has maintained
some form of zero-tolerance policy towards workplace
violence and harassment since well before the strike.
When the strikers returned to work, the Respondent pre-
sented them with a detailed statement of the policy. The
Respondent maintains that Bandy’s discharge is con-
sistent with its practice under the zero-tolerance policy.
The Respondent, however, has not demonstrated that
Bandy’s termination was in keeping with its enforcement
of the policy before or since the strike, and we reject the
judge’s conjecture to the contrary. The judge himself
found that the Respondent’s enforcement of its policy
presents a “mixed bag” of responses to employee mis-
conduct, ranging from no discipline at all to immediate
discharge. The judge then posited that the Respondent
discharges employees who “threaten or harass others
with serious physical injury or worse, while threats of
physical injury and harassment tend to be overlooked.”
Relying on this speculative theory, the judge concluded
that the Respondent “reasonably construed” Bandy’s
gesture as falling into the former category of threats of
serious injury, thus justifying his discharge.
We do not agree that the Respondent’s disciplinary
history reflects the pattern that the judge discerned. The
Respondent permanently discharged two employees—
Fountain and Smith—for threatening to physically harm
11 Particularized animus towards Bandy’s protected activity need not
be shown. See Encino Hospital Medical Center, 360 NLRB 335, 336
fn. 6, citing Igramo Enterprise, 351 NLRB 1337, 1339 (2007) (unnec-
essary for the General Counsel to show particular animus toward dis-
charged employee where employer manifested animus towards a group
including that employee), petition for review denied 310 Fed. Appx.
452 (2d Cir. 2009). Our dissenting colleague suggests that, absent such
particularized animus toward Bandy’s protected activity, the General
Counsel must show animus toward the type of protected activity that
Bandy engaged in—i.e., striking. Even assuming that were required,
we find that the pledge that the Respondent demanded from returning
strikers demonstrated such animus.
supervisors. Specifically, the Respondent discharged
Fountain because he told a manager that he was going to
go to her office and beat her with a baseball bat, and it
discharged Smith for threatening to shoot a supervisor in
the gut with a weapon that he kept in his car. The Re-
spondent discharged McGlothen after another employee
reported that he was cleaning and loading a pistol in the
workplace but rehired McGlothen a month later as a
strike replacement in spite of this offense.
The Respondent declined to discipline two employ-
ees—Harroun and Saltzburger—for threatening and ag-
gressive behavior towards other employees. Notably,
Harroun, a striker replacement worker, threatened to take
a fellow employee “out back and beat [his] ass” but re-
ceived no discipline at all. Only a week after Bandy’s
discharge, Saltzburger made obscene gestures and re-
peatedly shouted profanities at employee Schalk, trailing
Schalk out of the building, blocking access to his car in a
menacing fashion, and following him back into the facili-
ty to continue cursing at him in a loud voice and at close
range. In both instances, the Respondent’s supervisors
did little more than instruct the individuals involved in
the conflict to stop. Furthermore, when Schalk reported
Saltzburger’s misconduct, Supervisor McBroom re-
sponded dismissively, telling Schalk to “grow up” and
threatening to discharge both employees.
This evidence demonstrates that the Respondent did
not consistently discharge employees, even for relatively
severe misconduct like Harroun’s threat of physical harm
and Saltzburger’s harassment of Schalk immediately
following the end of the strike, i.e., exactly when the
Respondent was emphasizing its antiharassment policy.
Moreover, the Respondent initially determined that
McGlothen’s cleaning and loading of a gun at work was
sufficiently severe to warrant discharge, but it later ap-
parently deemed his conduct not so egregious as to pre-
clude reemployment during the strike. Under the cir-
cumstances, we are unable to find that the Respondent
has administered its zero-tolerance policy in a consistent
manner and that Bandy’s discharge conformed to an es-
tablished disciplinary practice.
Furthermore, even under the Respondent’s zero-
tolerance policy, we are not persuaded that Bandy’s ges-
ture would warrant immediate discharge. Although we
adopt the judge’s finding that Bandy made the “cut-
throat” gesture towards Braafhart, who was sitting in a
forklift approximately 10 feet away, there is no evidence
that Bandy made any threatening comments or other ges-
tures. Further, the judge credited Harroun’s testimony
that Bandy’s gesture was commonly used at the facility
to indicate to a driver that an engine should be shut off.
Moreover, the Respondent’s actions towards Bandy fol-

220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lowing the incident belie its contention that Bandy posed
an imminent threat of violence toward Braafhart: the
Respondent permitted Bandy not only to leave the prem-
ises unescorted but also to reenter the facility, again unat-
tended, to retrieve his possessions.12 Finally, even as-
suming that Bandy’s gesture was intended as a threat, it
was similar to, or even less severe than, the threats of
bodily harm and menacing harassment that resulted in no
disciplinary action or, at most, an undocumented oral
warning.13
In sum, we find, contrary to the judge, that the Re-
spondent violated Section 8(a)(3) and (1) by discharging
Bandy based on his participation in the employees’ law-
ful strike. As explained, the Respondent demonstrated
animus by the timing of the discharge and by condition-
ing strikers’ return on their promise not to strike again.
Further, in view of its inconsistent application of the ze-
ro-tolerance policy, the Respondent failed to demonstrate
that it would have discharged Bandy even in the absence
of the protected activity.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Bruce Bandy on April 27, 2012.
12 By contrast, in response to employee Smith’s threat to shoot his
supervisor, the Respondent immediately suspended Smith, removed
him from the facility, and sent security to the supervisor’s house.
13 Our dissenting colleague contends that we substitute our judgment
for that of the Respondent with regard to Bandy’s discharge. On the
contrary, we merely apply the well established burden-shifting analysis
of Wright Line. Because we have found that the General Counsel has
met his initial Wright Line burden, the Respondent is charged with
showing that it would have administered its zero-tolerance policy in the
same manner had Bandy not engaged in protected conduct. Thus, our
inquiry is not whether the Board would have disciplined Bandy differ-
ently, but rather whether the decision to discharge Bandy conformed to
the Respondent’s own administration of its policy. As set forth above,
we find that it did not.
Our dissenting colleague further states that we have “effectively re-
vers[ed] the judge’s credibility determination that the employer reason-
ably understood the gesture as threatening, in favor of relying on inher-
ently contradictory testimony from two other witnesses.” We disagree.
The judge credited both Braafhart’s and Harroun’s testimony as to their
perception of the incident. The judge then discredited Bandy’s testi-
mony that he made no gesture at all and was merely scratching his
throat. We find no basis for disturbing those credibility determinations,
and we do not reverse them. Rather, we reverse the judge’s legal con-
clusion (which, despite the judge’s phrasing, is not based on credibility)
that the Respondent reasonably construed Bandy’s gesture as an immi-
nent threat.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent unlawfully discharged Bruce
Bandy, we shall order the Respondent to offer him full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges
previously enjoyed, and to make him whole for any loss
of earnings and other benefits suffered as a result of his
discharge. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010). In addition, we shall order the Respondent to
compensate Bruce Bandy for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award
and to file a report with the Social Security Administra-
tion allocating the backpay award to the appropriate cal-
endar quarters. Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB 101 (2014). Finally, we shall order
the Respondent to post a notice in accordance with our
decision in Durham School Services, 360 NLRB 694
(2014).
ORDER
The National Labor Relations Board orders that the
Respondent, Nichols Aluminum, LLC, Davenport, Iowa,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees for supporting the Union or any other labor
organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Bruce Bandy full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Bruce Bandy whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of this decision.
(c) Compensate Bruce Bandy for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay

NICHOLS ALUMINUM, LLC 221
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter notify Bruce Bandy in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(e) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility at JM Morris Boulevard, Davenport, Iowa,
copies of the attached notice marked “Appendix.”14
Copies of the notice, on forms provided by the Regional
Director for Region 25, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted. In addition to phys-
ical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 27, 2012.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 25 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

MEMBER JOHNSON, dissenting.

Where the employer has proper cause for discharging
an employee, the Board may not rely on scant evidence
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
and repeated inferences to make a finding that places
the Board in the position of substituting its own ideas
of business management for those of the employer.

NLRB v. Blue Bell, Inc., 219 F.2d 796, 798 (5th Cir. 1955).
My colleagues here do exactly what the Fifth Circuit
years ago said the Board may not do. They rely on scant
evidence and inference to put themselves in position to
substitute their judgment for the Respondent’s as to what
alleged discriminatee Bruce Bandy did and whether it
warranted discharge. Abjuring this approach and proper-
ly applying Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), I agree with the judge that the General Counsel
failed to meet his initial Wright Line burden of proving
that animus against protected strike activity motivated
the discharge. Accordingly, I respectfully dissent from
the majority’s reversal of the judge to find a violation.
It is undisputed that Bandy engaged in protected strike
activity during contract negotiations and that the Re-
spondent was aware of that fact. He was not alone. Al-
most all of the Respondent’s 165 employees participated
in the strike. There is no evidence that Bandy played any
leadership or significant role in the strike or had any run-
in with the Respondent during the strike that might sup-
port an inference that animus against his particular strike
activity caused the Respondent to single him out for re-
prisal. His activity during the walkout is indistinguisha-
ble from that of the numerous other employees who
struck.
In addition, there are no allegations of independent
8(a)(1) violations in this case, nor is there evidence of
any statements or any conduct by the Respondent
demonstrating general hostility towards the strikers.
Contrary to my colleagues, I would not find that the Re-
spondent’s poststrike requirement of a no-strike pledge
fills the animus void. It is undisputed that, when the
strike ended, the Respondent asked returning strikers to
pledge that they would not strike again over the same
dispute that caused the strike that just ended. Bandy was
among many returning strikers who agreed to this
pledge. The complaint contained no allegation that this
conduct was unlawful, the judge did not find the pledge
to be unlawful, and the General Counsel does not claim
that the judge should have made this finding. Although
such no-strike pledges may be unlawful in certain cir-
cumstances, they are not unlawful per se. Boehringer
Ingelheim Vetmedica, Inc., 350 NLRB 678, 679 (2007). 1
1 My colleagues decide that had it been alleged “they would find”
the no-strike pledge unlawful, implicitly likening it to a “yellow-dog”
contract that requires complete abandonment of the union or any union
activities and which has been prohibited “[e]ven before the passage of

222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In any event, whether requiring this no-strike pledge
might have been unlawful is beside the point. There is
no apparent connection between the no-strike pledge and
Bandy’s discharge. Bandy was not discharged for refus-
ing to agree to the pledge. He agreed to the pledge, as
did many other returning strikers. Nor was he disci-
plined for violating the pledge. Even if the pledge is
considered evidence of some general animus on the Re-
spondent’s part, that itself would not satisfy the General
Counsel’s initial Wright Line burden on the Bandy dis-
charge allegation. As I have previously observed, Wright
Line is inherently a causation test and “[t]he ultimate
inquiry” is whether there is a nexus between an employ-
ee’s protected activity and the adverse employer action in
dispute. St. Bernard Hospital & Health Care Center, 360
NLRB 53, 53 fn. 2 (2013) (H. Johnson, concurring)
(quoting Chevron Mining, Inc. v. NLRB, 684 F.3d 1318,
1327–1328 (D.C. Cir. 2012)). There is no evidence here
of any nexus between Bandy’s strike participation and
the motivation for his discharge.2
My colleagues’ reliance on the timing of Bandy’s dis-
charge only 2 weeks after the strike ended as additional
support for inferring discriminatory motive is likewise
misplaced. Nothing about the timing of his discharge is
suspicious. It was dictated by Bandy’s own action. In
meetings after the strike ended, the Respondent reminded
all employees, strike replacements and returning strikers,
of its existing “Violence in the Workplace” policy that
did not tolerate “threatening and/or violent . . . behavior
by anyone” and that provided for the possibility of im-
mediate termination for such misconduct. Two weeks
the Wagner Act.” Eddyleon Chocolate Co., 301 NLRB 887, 887 (1991)
(requiring that an employee broadly pledge that employee “will not join
a union or be affiliated with unions in any way” unlawful). The prom-
ise not to strike “over the same dispute” here does not amount to a
yellow-dog contract. The promise in context seems logically limited to
ensuring a mutual understanding that the strike was, in fact, over, and
also giving assurance against intermittent work stoppages in support of
the extant bargaining dispute, a means of protest that is not protected by
the Act. This is an eminently sensible precaution for an employer in
this situation, not evidence of animus. My colleagues state that the
Respondent failed to present evidence in support of this interpretation
showing that its officials explained the pledge’s limitations to the for-
mer strikers. Why, one wonders, would the Respondent feel com-
pelled to produce such evidence when it was not on notice that the
unlawfully coercive nature of the pledge was at issue?
2 Thus, in my view, my colleagues and the precedent they cite mis-
characterize the General Counsel’s initial Wright Line burden to prove
that animus against union or other protected concerted activity motivat-
ed an adverse action. The General Counsel may of course meet this
burden by proving particularized animus against the employee. The
General Counsel may also prove general animus sufficient to warrant
the inference that it was a motivational factor against the type of pro-
tected activity in which the employee was known or suspected to have
engaged. In this case, the General Counsel has failed to meet his bur-
den by either showing.
later, according to credited testimony, Bandy slowly
dragged his clinched fist across his neck with his thumb
pointing up in a “cut throat” gesture directed at Keith
Braafhart, an employee who did not join the strike. The
judge found that gesture was reasonably construed by
management as “threatening,” based on Braafhart’s per-
ception and description of the incident. The Respondent
suspended Bandy the day he made the gesture and dis-
charged him 2 days’ later. Thus, the timing of Bandy’s
discharge is not suspicious. It simply reflects the Re-
spondent’s legitimate and prompt response at the time
Bandy made the threatening gesture to Braafhart.3
Finally, my colleagues contend that the Respondent
has not applied its zero-tolerance policy consistently and
therefore assert the Respondent has not shown it would
have discharged Bandy in the absence of his protected
activity. I disagree with their starting premise that the
General Counsel has satisfied his initial burden by infer-
ences drawn from the aforementioned evidence of a no-
repeat-strike pledge and timing, thereby shifting to the
Respondent the burden to establish its rebuttal defense.
On the contrary, the judge correctly reviewed the evi-
dence of the alleged inconsistencies in the Respondent’s
application of its zero-tolerance policy as one last alter-
native basis for inferring discriminatory motivation in
support of the General Counsel’s initial Wright Line bur-
3 My colleagues suggest that the innocent, or at least more ambigu-
ous, nature of Bandy’s conduct is shown by the credited testimony of
coworker witness Sam Harroun that Bandy’s hand gesture resembled a
signal commonly used to tell someone to stop or cut off an engine.
Harroun opined that Bandy may have been signaling for Braatfarth to
stop blowing the horn on the forklift truck he was driving. However,
the majority glosses over the fact that Bandy expressly denied that he
made any hand gesture in order to signal Braafhart to stop blowing the
horn. Harroun testified that, after Braafhart asked if Harroun saw Ban-
dy making a threatening gesture, Bandy “come walking by kind of
chuckling, said he had—his throat itched.” In Bandy’s own discredited
testimony, contradicted by Harroun, he testified that he was “jumping
back” from the forklift and may have involuntarily made a hand mo-
tion. Importantly, weighing the testimony of all the witnesses, the
judge specifically credited Braafhart that he understood Bandy’s ges-
ture as threatening. Contrary to my colleagues and consistent with the
judge’s analysis, I find Harroun’s testimony that Bandy did make some
cutting gesture with his hand partially corroborates Braafthart’s testi-
mony and contradicts Bandy’s. My colleagues err by effectively re-
versing the judge’s credibility determination that the employer reasona-
bly understood the gesture as threatening, in favor of relying on inher-
ently contradictory testimony from two other witnesses. My colleagues
deny reversing the credibility determination here, and instead character-
ize their decision as “revers[ing] the judge’s legal conclusion” (italics
in original). But, even if they are correct, my colleagues still err. The
judge found that Bandy “gradually swung his right hand diagonally
across his neck with the thumb pointing up.” By reversing the judge’s
conclusion that this gesture could reasonably be construed as threaten-
ing, my colleagues unfortunately and improperly substitute their busi-
ness judgment for the Respondent’s.

NICHOLS ALUMINUM, LLC 223
den. This judge found the evidence insufficient to meet
that burden, and so do I.
The evidence of discipline, or lack of discipline, for
conduct arguably subject to the zero-tolerance policy is
limited to two prestrike incidents and three poststrike
incidents. At most, this evidence demonstrates arguable
inconsistency in application of the policy, but falls far
short of proving disparate treatment of Bandy for partici-
pating in the strike or because he made his threatening
gesture to a nonstriker. Both before and after the strike,
the Respondent has enforced its policy by discharging
employees for violations. Of the two employees dis-
charged for violating the policy poststrike for making
what the Respondent viewed as serious physical threats,
Bandy was a former striker but Roosevelt Smith was not.
In order to find disparate treatment from this evidence,
my colleagues implicitly rely on their own sanitized,
discredited version of Bandy’s gesture and make their
own assessment that discharge for this redefined conduct
was improperly severe because lesser or no penalties
were assessed against employees in two instances which
they judge to be as or more egregious. This analysis, of
course, is not the Board’s legitimate role.
It is well recognized that “[t]he Board does not have
authority to regulate all behavior in the workplace and it
cannot function as a ubiquitous ‘personnel manager,’
supplanting its judgment . . . for those of an employer.”
Epilepsy Foundation of Northeast Ohio v. NLRB, 268
F.3d 1095, 1105 (D.C. Cir. 2001). Detroit Paneling Sys-
tems, 330 NLRB 1170, 1171 fn. 6 (2000) (Board “cannot
substitute its judgment for that of the employer and de-
cide what constitutes appropriate discipline”). “In short,
an employer has the right to discharge an employee for
any reason, whether it is just or not, and whether it is
reasonable or not, as long as the discharge is not, in part,
in retaliation for union activities or support. The question
of proper discipline of an employee is a matter left to the
discretion of the employer.” Tama Meat Packing Corp.,
230 NLRB 116, 126 (1977). “The Board is limited to
determining whether there was a discriminative motive
behind an employee’s discharge and not whether the
Board agrees with an employer’s reasons or even finds
them reasonable.” Id. See also Borin Packaging Co.,
208 NLRB 280, 281 (1974) (“[absent] a showing of anti-
union motivation, an employer may discharge an em-
ployee for a good reason, a bad reason, or no reason at
all. Whether other persons would consider the reasons
assigned for a discharge to be justified or fair is not the
test of legality under Section 8(a)(3).”) (emphasis add-
ed); Neptco, Inc., 346 NLRB 18, 19 (2005) (same);
Great Plains Beef Co., 241 NLRB 948, 964 (1979)
(“mere fact an employer may act unreasonably does not
prove it acted discriminatorily”).
In sum, I find my colleagues have relied on scant evi-
dence and unsupported inferences to find that the Gen-
eral Counsel has met the initial Wright Line burden of
proving unlawful motivation for Bandy’s discharge.
They compound their analytical error by impermissibly
substituting their own view of what conduct warrants
discipline under the Respondent’s established zero-
tolerance policy. Unlike them, I would find that the
General Counsel has failed to meet his initial Wright
Line burden. I would affirm the judge’s finding that the
Respondent lawfully discharged Bandy for making a
threatening gesture to another employee in violation of
the Respondent’s zero-tolerance policy, and I would
adopt the judge’s recommendation to dismiss the com-
plaint.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Teamsters Local Union No. 371 or
any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Bruce Bandy full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Bruce Bandy whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL compensate Bruce Bandy for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file a report with the Social Security
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Administration allocating the backpay award to the ap-
propriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Bruce Bandy, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.

NICHOLS ALUMINUM, LLC

The Board’s decision can be found at
www.nlrb.gov/case/25-CA-082690 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.

Ahavaha Pyrtel, Esq., for the General Counsel.
Michael A. Snapper and Keith J. Brodie, Esqs. (Barnes &
Thornburg LLP), for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Peoria, Illinois, on January 24, 2013. Teamsters
Local Union No. 371 (the Union) filed the charge on June 8,
2012, and the General Counsel issued the complaint on October
25, 2012.1 The complaint alleges that Nicholas Aluminum,
LLC (the Company) violated Section 8(a)(3) of the National
Labor Relations Act (the Act) by discharging Bruce Bandy on
April 27 because he engaged in union activity in support of
Teamsters Local Union No. 371 (the Union). The Company
denies the allegations and asserts that Bruce Bandy was dis-
charged because he threatened another employee with serious
physical injury in violation of company rules.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a limited liability company, has been engaged
in the manufacture and sale of aluminum at its facilities in Dav-
enport, Iowa, where it annually sells and ships goods valued in
1 Unless otherwise stated, all dates refer to 2012.
excess of $50,000 directly to points outside the State of Iowa.
The Company admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Operations
The company has two plants—the casting plant (NAC) and
the finishing plant (NAD). Between the two facilities, the
Company processes convert scrap metal into aluminum sheets
for use by the building industry. The plant manager at NAC at
the relevant times was Bill Hebert. The plant manager at NAD
at the relevant times was Celal Tekell.
There are approximately 165 employees in the casting plant
working in about 24 different job classifications and 9 depart-
ments: receiving, shredding, blending, melding, hot mill, caster,
maintenance, shipping, and rotary barrel furnace.
Bruce Bandy was employed by the Company since February
2, 1978, and was a longtime member of the Union. For the past
15 to 20 years, he has worked as a blending operator. His duties
include adjusting the chemistry and maintaining control of the
alloys in the melders and holders. Bandy worked a 12-hour
shift. His immediate supervisor was Blending Supervisor Vick
Hansen, who reported to (now former) Plant Manager Hebert.
B. Organizing Campaign
The Union represented the bargaining unit employees at the
Company’s Davenport facilities at all relevant times. The col-
lective-bargaining agreement (CBA) between the parties ex-
pired in November 2011. During the negotiation of a successor
agreement between the Company and the Union, the latter initi-
ated a strike at the Davenport facilities which lasted from about
January 20 through April 6. Bandy was one of the employees
who participated in the strike.2
While the strike was in effect, the Company hired replace-
ment workers to perform the work, approximately 100 of whom
it eventually hired on a permanent basis on April 4. The Union
ended the strike on April 6 and the Company called the striking
employees, including Bandy, back to work.
As striking workers returned to work, the Company held ori-
entation meetings at both NAC and NAD. Participants in these
meetings on behalf of the Company included Human Resources
Manager Kristy Riley (now former) Vice President of Human
Resources Mike Albee, and Hebert. During the meetings, the
Company told the employees that they could not return to work
unless they promised to not strike again. Bandy was one of the
employees who signed such a pledge.3 Thereafter, the Union
intervened and prevented the Company from getting additional
written pledges, but the Company received verbal assurances
from the employees that they would not engage in a strike
again. Employees were also reminded of the Company’s no-
2 Aside from the fact that Bandy went on strike, there was no evi-
dence that he was engaged in any unusual, strategic, or significant role
during the walkout period. (Tr. 26, 35.)
3 GC Exh. 3.

NICHOLS ALUMINUM, LLC 225
tolerance policy on harassment, intimidation and physical
threats.4
C. “No Tolerance Policy” and Its Past Enforcement
1. Content of the policy
The Company has policies against violence and harassment
in the workplace.5 The agreement between the Company and
the Union provides that the commission of certain violations by
employees—listed under “Group 1” violations—may lead to
discharge without a notice. One of these violations is “Assault
on any employee: Violation of the Company’s policy on Work-
place Violence and Threats.”6
2. Incident involving Craig Saltzburger
On or around May 4, Robert Schalk, a returning company
employee who participated in the 2012 strike, was waiting in
line to punch out and speaking with fellow employee Darren
Schnowski. At this time, replacement worker Craig
Saltzburger, without any apparent provocation began screaming
at Schalk, “What the fuck are you looking at? You got a fuck-
ing problem?” while grabbing himself on the crotch. Schalk
ignored Saltzburger and walked out, but Saltzburger followed
Schalk outside, stepping in front him and asking Schalk if he
thought Saltzburger was “pretty” and what his “fucking prob-
lem” was. Schalk asked Saltzburger to get away from him and
attempted to get to his car, but Saltzburger stepped in front of
Schalk again and asked, “You got a fucking problem? What are
you looking at?” At this point, Schalk told Saltzburger that they
should go upstairs and report the confrontation. Saltzburger
seemed to agree: “That would be fucking fine, let’s fucking do
it.”
As they returned to the facility, Schalk saw Supervisor Phil
McBroom and called him over. Schalk described what hap-
pened, while Saltzburger continued hurling invectives: “You
got a fucking problem? What are you looking at?” In response
to Schalk’s report, McBroom asked Schalk, “What the fuck do
you want me to do about it?” Schalk told him that he thought he
was supposed to report such apparent violations of the no-
4 Although the assurances were not given in writing, the Union does
not contest the applicability of the Company’s policy as contained in
the expired CBA. (Tr. 82–84, 100–102; R. Exh. 3.)
5 The Company offered substantive details as to its policy regarding
violence in the workplace. One of the slides shown during the post-
strike orientation meetings in 2012 related to “safety” and provided
assurances that it was continually taking steps to reduce the negative
effects of “injuries.” (R. Exh. 3.) The slide generally states that em-
ployees “follow all safety requirements,” although no information was
offered as to the substantive content of those requirements, and the
words “violence” or “threats” were not mentioned. Another slide titled
“Company Violence in the Workplace Statement” informed employees
that “[h]arassing disruptive, threatening, and/or violent situations or
behavior by anyone, regardless of status, will not be tolerated and sub-
ject to discharge for the first offense.” (R. Exh. 3.) A notice stating the
same was placed on the Company’s bulletin sometime after the strike.
(R. Exh. 4; Tr. 172–173.) Another document defined “Prohibited Con-
duct” to include, among other things, “[p]ossession of firearm, knife
with a blade greater than three inches or any weapon while on Compa-
ny property or while on company business” and “[a]ggressive or hostile
behavior that creates a reasonable fear of injury to another person. . . .”
6 R. Exh. 5.
tolerance policy. McBroom told Schalk that he “should fucking
grow up,” and that if Schalk wanted him to do anything, he
would fire both employees. Schalk left.
Later, Shalk called and left a message for Riley, the human
resources manager. In the message, Schalk detailed
Saltzburger’s harassing behavior and McBroom’s inaction. The
call was not returned and, later that afternoon, Schalk called
Hebert and left a message. Hebert returned the call a short
while later, promised that the Company would look into it and
launch an investigation. A few days later, Schalk met with Ri-
ley and Mike Belk, a union steward. At the end of the meeting,
Riley told Schalk “that when there is more than one employee
involved, you never get the full story.” She did, however,
promise Schalk that she would look into the matter. Schalk
never heard back.7
In August, Schalk emailed Plant Manager Brian Wolfe as-
serting that, by threatening to discharge Schalk for reporting the
Saltzburger incident, McBroom engaged in threatening, harass-
ing, and intimidating behavior in violation of the Company’s
zero-tolerance policy. Schalk previously expressed this concern
to Wolfe. Wolfe took no action.8
3. Incident involving John Dinkman and Sam Harroun
Christopher James was a caster assistant at NAC since Au-
gust 2007 who participated in the 2012 strike as a picket line
patrol. On October 12, within a week of returning, he attended
a staff meeting. Others present included Supervisor Everett
Orey, melding operator Sam Harroun, and caster assistants
John Dinkman and Aaron Ellenberg. Harroun, Dinkman, and
Ellenberg were all replacement workers. During the meeting,
Harroun said to Dinkman that it was the caster assistants’ fault
that the “holder” was too hot. Dinkman disagreed and said he
never told the caster assistants to watch the temperature. Orey
told the employees to stop blaming each other. Harroun then
turned to Dinkman and said, “I’m going to take you out back
and beat your ass.” After exchanging additional comments,
Orey concluded by saying, “Hey, that’s enough.” No discipli-
nary action was taken in response to Harroun’s comment.9
4. Incident involving Mike McGlothen
On December 20, 2011, electrician Mike Cook reported see-
ing NAD mechanic Mike McGlothen cleaning and loading a
pistol in an office at NAD. This made Cook uncomfortable,
prompting him to report the incident to Mike Albee. After in-
vestigation of the incident, McGlothen was terminated on Janu-
ary 13 for violating the Company’s rule: “Assault on any em-
ployee. Violation of the Company’s policy on Workplace Vio-
lence and Threats.” However, the Company rehired him during
the strike the following month.10
7 These findings are based on Schalk’s credible and unrefuted testi-
mony. (Tr. 84–88.)
8 GC Exh. 14.
9 These findings are based on James’ credible testimony. (Tr. 103–
110.)
10 Aside from Cook’s reaction, there is no evidence that McGlothen
was attempting to harass, intimidate, or injure anyone. (GC Exh. 4; Tr.
30, 186–187.)

226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. Incident involving Roosevelt Smith
During the summer of 2012, former employee Roosevelt
Smith told his supervisor, Jim Hays, that he had weapons in his
car and was going to shoot him “in the gut,” causing Hays to
“shit in a bag for the rest of his life.” The Company suspended
Smith for 2 weeks before discharging him.11
6. Incident involving Ed Fountain
One to 2 years prior to the 2012 strike, Ed Fountain, a
maintenance employee, called Riley and threatened to go to her
office and beat her with a baseball bat. He was fired sometime
after this incident.12
D. Events of April 25, 2012
Keith Braafhart has been employed by the Company since
1995. He primarily worked at NAD, but also worked at NAC as
needed. During the 2012 strike, Braafhart was one of the em-
ployees who crossed the picket line. Since that time, he has
worked as a melding utility employee at NAC.
On April 25, Braafhart was operating a forklift truck and
moving toward melder 3. As he approached one of the intersec-
tions, Bandy walked out of the melding back room, coming to
the right side of Braafhart. Braafhart honked a few times and
slowed down. At that time, Bandy looked toward Braafhart and
gradually swung his right hand diagonally across his neck with
the thumb pointing up. Braafhart construed Bandy’s gesture as
a threat.13 Braafhart saw Sam Harroun and asked him if the
latter witnessed the incident. Harroun stated that he saw the
gesture as a request to Braafhart to stop blowing the horn.14
Braafhart parked the truck and went to report the incident to
the human resources department. He later met with Albee, Han-
sen and Hebert as they took notes, and asked Braafhart not to
speak with anyone about the incident after leaving. Manage-
ment also interviewed Harroun later that day. He described
Bandy’s hand gesture and opined that it resembled a gesture
where one person tells another to shut off the vehicle’s en-
gine.15
Shortly thereafter, Bandy was called to the office and sus-
pended. On April 27, Riley called Bandy to inform him that he
was discharged.
11 This finding is based on Hebert’s credible testimony. (Tr. 162–
163.)
12 This finding is based on Riley’s credible testimony. (Tr. 158, 164.)
13 I credit Braafhart’s testimony that he did not reasonably construe
Bandy’s gesture as a request to cut off the machine, but rather, as a cut
throat gesture. His reenactment revealed a gradual, and not rapid,
movement of Bandy’s arm, thus ruling out involuntary movement. (Tr.
129, 134–136.) Bandy’s explanation and reenactment, on the other
hand, were inconsistent and incredible. He described numerous near
accidents involving moving equipment and how he tends to respond by
lurching backwards and involuntarily moving his right hand in a diago-
nal motion across his chest. Instead, when confronted about the gesture
by Braafhart, he told him he was scratching his throat. (Tr. 48–56, 71–
74.)
14 Contrary to his comments to Braafhart that Bandy was signaling to
stop blaring the horn, Harroun testified that Bandy walked by chuckling
and said that his throat itched. (Tr. 139–140; R. Exh. 1.)
15 This finding is based on Harroun’s credible testimony. (Tr. 140,
144–146; R. Exh. 2.)
Legal Analysis
The General Counsel contends that the Company violated
Section 8(a)(3) by discharging Bruce Bandy on April 27 be-
cause he supported the Union by going out on strike the follow-
ing year. The Company denies the allegations and asserts that
Bandy was discharged because he threatened another employee
with serious physical injury in violation of its no-tolerance for
violence or harassment policy.
The 8(a)(3) allegations are analyzed under the Wright Line
framework, which requires the General Counsel to make a pri-
ma facie showing of sufficient proof to support the inference
that protected conduct was a motivating factor in the employ-
er’s decision, 251 NLRB 1083, 1089 (1980). To meet this bur-
den, the General Counsel must establish that the employee
engaged in protected activity, and that the employer had
knowledge of the protected activity, and took adverse action
against the employee as a result of this protected activity.
American Gardens Management Co., 338 NLRB 644, 645
(2002). Once the General Counsel has proven these elements,
the burden shifts to the employer to demonstrate that it would
have taken the same action even in the absence of protected
conduct. Manno Electric, Inc., 321 NLRB 278, 281 (1996). If
the evidence establishes that the reasons given for the discharge
are pretextual, either in that they are false or not relied on, the
employer has failed to show that it would have taken the same
action absent the protected conduct, and there is no need to
perform the second part of the Wright Line analysis. Golden
State Foods Corp., 340 NLRB 382, 385 (2003).
It is undisputed that the Company knew that Bandy, a bar-
gaining unit member, engaged in protected concerted activity
by participating in a union-sponsored strike in 2012. I also
found that, after returning to work, he made a threatening ges-
ture to an employee who did not go out on strike. Whether
Bandy’s discharge after returning from the strike was due to his
protected activity, however, is heavily disputed. The General
Counsel contends that his strike participation alone provides
sufficient circumstantial proof upon which to predicate animus,
while the Company argues that Bandy was one of many who
went on strike and returned to work, almost all without inci-
dent.
Simply participating in a union-sponsored strike along with
many others and being discharged for misconduct at some point
after returning to work is not enough to demonstrate antiunion
animus. More evidence is required, whether in the form of in-
dependent 8(a)(1) violations, hostile remarks, or actions by
supervisors regarding protected concerted activities, or dispar-
ate treatment in the enforcement of an employer’s rules. See
Airo Die Casting, Inc., 354 NLRB 92, 131 (2009) (no evidence
of antiunion animus simply because employer delayed reinstat-
ing two former strikers, where the decision was based on sen-
iority, they were part of a group of 300 strikers, were not par-
ticularly active or outspoken union supporters or engaged in
any other protected activities that would cause employer to
single them out from among the returning strikers for discrimi-
natory treatment); Detroit Newspaper Agency v. NLRB, 435
F.3d 302 (D.C. Cir. 2006) (discharging former striker for in-
subordination, without more, did not establish antiunion ani-
mus); Florida Steel Corp. v. NLRB, 529 F.2d 1225, 1234 (5th

NICHOLS ALUMINUM, LLC 227
Cir. 1976) (union membership cannot protect clear insubordina-
tion where employer’s discipline was not motivated by anti-
union animus). Cf. NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983) (employer displayed antiunion
animus when it discharged employee who attempted to estab-
lish a union for work infractions because the employer had not
followed its customary practice of issuing written warnings
before discharge); Southwest Merchandising Corp. v. NLRB, 53
F.3d 1334 (D.C. Cir. 1995) (animus where employer consid-
ered striking employees’ participation in a strike as a factor in
making its decisions to hire after the strike and treated nonstrik-
ing applicants preferentially); Outboard Marine Corp.-
Calhoun, 307 NLRB 1333, 1368–1369 (1992) (employer un-
lawfully retaliated against strikers by delaying their recall,
denying promotional opportunities, misclassifying their posi-
tions, subjecting them to more onerous working conditions, and
applying other disparate treatment).
Here, there is no background of independent 8(a)(1) viola-
tions during the period after the strike and up to the time of
Bandy’s discharge. Nor is there any evidence of hostile remarks
or actions by the employer since the strike concluded and em-
ployees returned to work. We do have an evidentiary sampling,
however, of other employee-on-employee confrontations within
the Company’s workplace revealing instances in which it either
did or did not enforce its policy against violence and harass-
ment.
When the charging party attempts to show antiunion animus
by alleging that the employer discharged an employee based on
an action which the employer treated more leniently in the past,
the employer can rebut the claim by presenting evidence that it
treated similar behavior in a similar manner. See NLRB v. Hos-
pital San Pablo, Inc., 207 F.3d 67, 73 (1st Cir. 2000) (employer
displayed antiunion animus by discharging an employee, who
engaged in union activities, based on an infraction that a nonun-
ion employee also committed in the past without enduring simi-
lar punishment).
The record presents a mixed bag of company responses to
employee-on-employee confrontations within the relatively
recent past. The Company previously discharged three employ-
ees for violating its no-tolerance policy. Two employees, Foun-
tain and Smith, explicitly threatened to cause serious physical
injury to coworkers via shooting with a gun or beating with a
baseball bat. Another employee, McGlothen, brought a gun to
work and, although there is no evidence that he cleaned and
loaded it in an open work setting, was discharged in accordance
with the no-tolerance policy. The section cited—assault—was a
plausible conclusion based on a fear that the incident created.
McGlothen was rehired a month later as the Company brought
in replacement workers during the strike. However, that subse-
quent development was driven by the Company’s desire to hire
replacement workers and, without more, does not undermine
the legitimacy of the Company’s earlier discharge.
On the other hand, the Company took no disciplinary action
against two employees who engaged in other conduct tanta-
mount to threats of violence or harassment. In one instance,
Harroun told another employee that, essentially, he was going
to beat him up. The statement was made in front of a supervi-
sor, who resolved the matter at that time.
In another instance, Saltzburger, a replacement worker, har-
assed Shalk, a coworker who had gone out on strike. The cir-
cumstances leading up to the confrontation are slim, but some-
thing obviously transpired, leading Saltzburger to harass Shalk
numerous times on 1 day. The harassment consisted of an in-
vective-laced inquiry as to what problem Shalk had with him.
The two of them then went to a supervisor, where Saltzburger
continued his barrage. The supervisor did nothing, except warn
Shalk to grow up. Similarly, human resources officials also did
nothing after the matter was reported to them.
This situation presents a close call. The record contains two
discharges based on threats to cause serious injury or worse,
and one discharge, labeled an assault, for cleaning and loading
a gun at work. In two instances, the Company did not discipline
employees who harassed or threatened coworkers. The harass-
ment situation did not suggest that it would be followed by
violence, while the threat as to kicking a coworker’s rear end
referred, at most, to a physical injury. In Bandy’s case, he made
a gesture by simulating the cutting of his throat that the Com-
pany reasonably construed as a threat of serious physical injury
or death.
When considered together, the record evidence indicates a
tendency by the Company to enforce the no-tolerance policy
against employees who threaten or harass others with serious
physical injury or worse, while threats of physical injury and
harassment tend to be overlooked. Under the circumstances,
these previous instances do not establish by the preponderance
of the evidence that the Company engaged in the disparate
treatment of Bandy by discharging him for threatening another
employee with serious physical injury or worse.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act and the
Union is a labor organization within the meaning of Section
2(5) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Company has not violated the Act as alleged.
[Recommended Order for dismissal omitted from publica-
tion.]