Nichols Aluminum, LLC v. National Labor Relations Board, 797 F.3d 548

Background

Nichols Aluminum operated two plants in Davenport, IA; the casting-plant employees (including Bruce Bandy) were unionized and struck during Jan 2012 negotiations; Nichols hired replacements.
Bandy, a long‑time employee, participated in the strike, returned to work after the strike ended, and verbally agreed to a company "no‑strike pledge."
Nichols reviewed a CBA‑incorporated "zero tolerance" workplace‑violence policy on return; the policy allowed discharge for threatening remarks or aggressive behavior.
On April 25, 2012 Bandy made a "cut‑throat" thumb‑across‑the‑neck gesture toward a nonstriking coworker (Braafhart); a neutral witness thought it was not a threat. Nichols investigated and discharged Bandy two days later for violating the violence policy.
Union filed an unfair‑labor‑practice charge; ALJ found Nichols did not violate the NLRA and credited witnesses for Nichols; the Board reversed (2–1), finding discriminatory motive based on the no‑strike pledge, timing, and alleged disparate treatment.
The Eighth Circuit granted review, held the Board misapplied the Wright Line causation standard and denied enforcement of the Board's order.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Nichols violated § 8(a)(1) & (3) by discharging Bandy for strike participation	General Counsel/Board: Bandy was discharged because of strike activity; no‑strike pledge, timing, and disparate treatment show animus	Nichols: discharge was for a legitimate, nondiscriminatory reason — a serious threat in violation of zero‑tolerance policy; Bandy's gesture justified termination	Court: Board failed to show substantial evidence that Bandy's protected activity was a motivating factor; denied enforcement
Whether the Board correctly applied the Wright Line burden‑shifting framework	GC/Board: Wright Line met by showing protected activity, employer knowledge, and motivating animus; employer failed to prove it would have discharged anyway	Nichols: Board misapplied Wright Line and relieved GC of its burden to prove causation between protected activity and discharge	Court: Board misapplied Wright Line and did not adequately analyze causation; GC not held to required burden
Whether substantial evidence supported the Board's reversal of the ALJ credibility and factual findings	Board: even accepting many ALJ findings, record supports inference of animus and disparate treatment sufficient for Wright Line	Nichols: ALJ credibility findings and lack of direct proof of antiunion motive undermine Board reversal	Court: Where Board reverses ALJ, its evidence must be stronger; here record lacks sufficient support to uphold reversal
Whether remand to Board was appropriate instead of setting aside order	Board (majority) implicitly: its rationale supports enforcement; dissent urged enforcement; concurring judge: would remand if Board requested	Nichols: sought review and enforcement denial	Court: Precedent bars remand absent Board alternative theory or request; therefore court set aside order and denied remand/enforcement

Key Cases Cited

Town & Country Elec., Inc. v. NLRB, 106 F.3d 816 (8th Cir. 1997) (standard for enforcing Board orders; substantial‑evidence review)
NLRB v. La‑Z‑Boy Midwest, 390 F.3d 1054 (8th Cir. 2004) (definition of substantial evidence)
Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197 (U.S. 1938) (substantial evidence standard quoted)
NLRB v. MDI Commercial Servs., 175 F.3d 621 (8th Cir. 1999) (consideration of record detracting evidence)
Carleton Coll. v. NLRB, 230 F.3d 1075 (8th Cir. 2000) (Wright Line and need for nexus beyond general antiunion hostility)
GSX Corp. of Mo. v. NLRB, 918 F.2d 1351 (8th Cir. 1990) (review when Board rejects ALJ findings)
Concepts & Designs, Inc. v. NLRB, 101 F.3d 1243 (8th Cir. 1996) (Board may draw reasonable inferences but not rely on suspicion or plainly incredible evidence)
Mead & Mount Constr. Co. v. NLRB, 411 F.2d 1154 (8th Cir. 1969) (but‑for causation standard in discriminatory discharge cases)
RELCO Locomotives, Inc. v. NLRB, 734 F.3d 764 (8th Cir. 2013) (Wright Line framework application)
NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (U.S. 1983) (articulation of Wright Line burden shifting)
Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (weighing of record evidence that detracts from Board findings)
Multimedia KSDK, Inc. v. NLRB, 303 F.3d 896 (8th Cir. 2002) (remand limitations: court will not remand absent Board alternative theory or request)
Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095 (D.C. Cir. 2001) (courts should not supplant employer personnel judgments absent unlawful motive)
NLRB v. Blue Bell, Inc., 219 F.2d 796 (5th Cir. 1955) (weight against substituting court judgment for employer personnel decisions)