## Facts

- Nichols Aluminum, LLC operated two aluminum plants in Davenport, Iowa; casting-plant employees were represented by Teamsters Local 371.
- After the collective-bargaining agreement expired, the union called a strike on January 20, 2012; Nichols continued operations with some employees crossing the picket line and with replacement workers.
- Employee Bruce Bandy, a long-term blending operator, participated in the strike but held no leadership role and was not identified as a key union actor.
- The union ended the strike on April 6, 2012; Nichols recalled eligible strikers and required returning employees to make a “no-strike pledge” stating they would not strike again over the same dispute, with potential discipline for violation.
- Bandy returned on April 11, 2012; he verbally agreed to the pledge and did not sign a written form.
- On April 25, 2012, Bandy allegedly made a gesture toward a non-striking coworker that Nichols treated as a serious threat under its zero-tolerance workplace-violence policy.
- Nichols investigated and discharged Bandy on April 27, 2012, citing violation of the workplace-violence policy.
- The union filed an unfair labor practice charge alleging the discharge was retaliation for protected strike activity.

## Issues

1. Whether substantial evidence supported the NLRB’s finding that Nichols violated NLRA §§ 8(a)(1) and 8(a)(3) by discharging Bandy because of protected strike activity.
2. Whether the NLRB properly applied the Wright Line burden-shifting framework in rejecting Nichols’s asserted safety-based justification as pretextual.

## Decision

- The court granted Nichols’s petition for review and denied the NLRB’s cross-application for enforcement.
- The court held the Board’s finding of unlawful motivation was not supported by substantial evidence on the record as a whole.
- The court concluded the Board misapplied Wright Line by relying on insufficient evidence that protected activity was a substantial or motivating factor in the discharge.
- The court accepted that Nichols articulated a facially legitimate, policy-based reason for discharge and found the record did not show it was a pretext for anti-union retaliation.

## Legal Principles

- Under Wright Line, the General Counsel must show protected activity was a substantial or motivating factor in the adverse action; the employer may avoid liability by proving it would have taken the same action absent the protected conduct.
- Participation in a lawful strike is protected activity under the NLRA, but an employer may discipline or discharge for legitimate reasons unrelated to union activity if the action is not motivated by anti-union animus.
- Substantial-evidence review requires support for the Board’s motive findings when considering the whole record; deference does not permit affirmance of speculative inferences.
- When an employer invokes a facially neutral workplace-safety policy, the Board must show credible evidence of discriminatory motive or pretext (such as inconsistent enforcement or disparate treatment), not merely disagree with the employer’s assessment of the conduct.

## Conclusion

The Eighth Circuit set aside the NLRB’s reinstatement and backpay order, holding that the record did not substantially support a finding that Nichols discharged Bandy because of his protected strike participation rather than for an objectively reasonable, safety-based application of its workplace-violence policy.


Nichols Aluminum, LLC v. Nat’l Lab. Rels. Bd., 797 F.3d 548 (8th Cir. 2015)