The Employment Law Multiverse: Management, Employees, Unions, and the NLRB

April 15, 2016

Even in its simplest form, employment law is very complicated.  Throw in unions and the National Labor Relations Board, and things can go from merely complicated to near quantum mechanics level of complexity, with all the multiverses and theoreticals that may or may not go along with it.

Take Nichols Aluminum, LLC (“Nichols”), for example.  In January 2012, it had 165 members of the Teamsters go on strike at its Iowa casting plant.  In response, Nichols hired approximately 100 replacement workers while instructing those workers that had not been replaced to return to work, effectively ending the strike in April 2012.  Upon returning to work, the Teamster members were told they had to sign a form in which they promised not strike again over the issues that caused the initial strike.  Within a matter of weeks, Teamster Bruce Brandy was terminated for violating Nichols’s zero-tolerance policy for threats and harassment when he allegedly made a threat involving the “cut throat” gesture during an altercation with another employee.

The Teamsters filed an unfair labor practice charge against Nichols claiming that Brandy was fired for his support of the union.  An administrative law judge (“ALJ”) dismissed the complaint after an evidentiary hearing finding that Nichols had lawfully fired Brandy under its anti-harassment policy.  The NLRB then overturned the ALJ’s findings, stating that there was compelling evidence of “animus toward the strike and the employees who engaged in it” when it forced the returning Teamsters to sign the “No Strike” pledge.  Nichols adamantly argued that the no strike pledge was to ensure that returning workers would not strike again over the same issues.  The NLRB responded by stating that Nichols had not sufficiently explained the purpose of the No Strike pledge when asking the Teamster members to sign it.

On appellate review, the appellate court reversed the decision of the NLRB based on the NLRB’s misapplication of the causational element under the Wright Line order for violations of  Section 8(a)(1) and (3) of National Labor Relations Act [1].[2]  The Wright Line standard requires more than just general hostility towards a union in order for there to be a violation of Section 8(a)(1) and (3).  Interestingly, both the concurring and the dissenting opinions of the Court take notice that if the NRLB had conducted the correct analysis of the causational element by connecting the dots contained in the record between Brandy’s Union participation and his termination, that the Court very well could have upheld the NRLB’s judgment, showing how easily this case could have turned for or against the employer.

Given that Nichols’s narrow escape for liability was based completely on misapplied legal standards, help in the form of an attorneys’ review and assistance is often required for navigating the employment law “multiverse.”  The employment law attorneys at Rock Fusco & Connelly, LLC, can help you navigate your first or your thousandth step in this complex area of the law.

[1] 29 U.S.C. § 158(a)(1), (3).

[2] Nichols Aluminum, LLC, v. National Labor Relations Board, 797 F.3d 548 (8th Cir. 2015).