The Eighth Circuit Court of Appeals recently reversed a decision by the National Labor Relations Board (NLRB), which held that an employer acted unlawfully by firing an employee who threatened a co-worker.

In Nichols Aluminum LLC v. NLRB, the employer fired an employee for making a threat to a co-worker shortly after the employee participated in a union strike. Nos. 14-3001, 14-3202 (8th Cir. Aug. 13, 2015). The employee participated in a strike that began on January 20, 2012, and lasted until April 6, 2012. After the strike was over, the employer asked the participating employees to sign a no-strike pledge and agree that they would not “strike again over the same dispute.” The employer also reviewed its longstanding “zero tolerance” workplace violence policy with the employees, which prohibited “harassing, disruptive, threatening, and/or violent situations or behavior” and warned that employees could be terminated for a first offense.

About two weeks after the strike ended, the employee made a threatening “cut throat” gesture towards another co-worker. The co-worker reported that the employee gave him a “death stare” while making the gesture and that he understood it to mean “I’m going to cut your throat.” The employer fired the employee, and the employee subsequently filed an unfair labor practice charge. The charge asserted that the employer unlawfully discriminated the employee for his participation in the strike in violation of the National Labor Relations Act (NLRA).

Initially, the administrative law judge (ALJ) found the employee’s charge to be without merit, reasoning that the employer “reasonably construed” the employee’s behavior as a serious threat. The NLRB disagreed, however, and found that the employee’s termination violated the NLRA. The NLRB emphasized that the no-strike pledge and the timing of the leave constituted evidence of anti-union animus. The NLRB further reasoned that the employer “failed to show it would have fired [the employee] regardless of his participation in the strike.”

On appeal, the Eighth Circuit reversed the NLRB’s determination on the grounds that the NLRB applied the wrong legal standard. The Court explained that under the Wright Line legal standard, the NLRB’s General Counsel must first prove that an employee’s protected conduct was a “substantial or motivating factor in the adverse action.” If and only if the General Counsel can make that showing, the burden shifts to the employer to show that it would have taken the same action for a legitimate, nondiscriminatory reason regardless of the employee’s protected activity.

The court explained that to prove anti-union animus is a “substantial or motivating factor in the adverse action,” simple animus toward the union is not enough. Although hostility towards the union is a factor that should be considered, the court stated that “general hostility toward the union does not itself supply the element of unlawful motive.” The court concluded that the NLRB misapplied the Wright Line standard and did not hold the General Counsel to its burden of providing that discriminatory animus towards the employee’s protected conduct was a “substantial or motivating factor” in the termination decision. Accordingly, the court refused to enforce the NLRB’s order.

Takeaway: The Nichols Aluminum LLC decision is a good reminder that the NLRB does not have the last word on labor law matters. When the NLRB reaches decisions that seem contrary to common sense (like this one or this one or this one), an appeal to a federal circuit court may be an effective means of recourse.