United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 22-2958

___________________________ 

Strategic Technology Institute, Inc. 

 Petitioner

v.

National Labor Relations Board

 Respondent 

___________________________

No. 22-3045

___________________________ 

Strategic Technology Institute, Inc.

 Respondent 

v.

National Labor Relations Board

 Petitioner

____________

National Labor Relations Board

____________ 

Submitted: September 20, 2023

Filed: December 6, 2023

____________ 
-2- 

Before LOKEN, WOLLMAN, and BENTON, Circuit Judges. 

____________ 

BENTON, Circuit Judge.

Strategic Technology Institute, Inc. (“STI”) petitions for review of the 

National Labor Relations Board’s order that it violated subsections 8(a)(1) and (3) 

of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3). See Strategic 

Tech. Inst., Inc. and Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO, 

371 NLRB No. 137, 2022 WL 4237157 (Sept. 13, 2022). The Board seeks to enforce 

the order. Having jurisdiction under 29 U.S.C. § 160(f), this court grants the petition 

for review, vacates the order, and remands. 

 

I. 

From August 2017 until July 2020, STI had a contract to maintain engines and 

propellers for the U.S. Air Force. Tyler Boyd of STI fired 17 employees from its

Little Rock facility—three on September 27, 2019, and fourteen on October 9, 2019. 

Boyd, the program manager for the contract, who was based in Texas, did not visit

the Little Rock facility before the terminations. He managed remotely through site 

supervisor Gerald Kiihnl, who resigned the day after the last terminations. 

In the summer before the terminations, STI’s Little Rock employees began 

discussing unionizing. Mechanic Eric Rambo resigned on August 30, 2019. That 

day, by a phone call, he told Boyd that employees were discussing unionizing. In an 

exit interview, Rambo told Kiihnl that employees were considering “trying to get a 

union in.” Kiihnl relayed this to Boyd in a phone call. 

From March to September 2019, the Air Force issued STI five corrective 

action reports (“CARs”) for safety and performance issues. On September 18, a 

CAR cited STI with leaving a screwdriver in an aircraft engine it had serviced. The 

CAR required STI to explain the corrective acts it would take to prevent similar 
-3- 

issues. STI responded with tool-accountability training and procedural changes. STI 

added: “Training and re-training have unfortunately proven not to be effective. 

Counseling is in order before loss of limb or life occurs. These issues shall require 

actions to be taken.” 

STI found three employees responsible for the error. On September 23, Kiihnl 

verbally reprimanded them (the first discipline for the three). Later that day Boyd 

told Kiihnl that the discipline should be more severe. On September 27, Boyd fired 

the three employees. 

On September 20, the day after learning of the CAR, Boyd had instructed 

Kiihnl to evaluate and rank 41 Little Rock employees, STI’s first rankings at Little 

Rock. Kiihnl completed this evaluation on September 23. He scored each employee 

as “3-out-of-5.” He then ranked them based on performance, attendance, and how 

well they worked with others. There is no evidence that union activity was 

considered in the rankings. 

On October 9 (a day after Kiihnl returned from vacation), Boyd fired the 14 

lowest ranked employees for “poor performance.” Boyd prepared an identical 

verbal-counseling form for each fired employee’s personnel file. The ALJ and Board 

found that these forms, which cited the five 2019 CARs, were “full of falsifications” 

and “outright lies.” On each form, Boyd copied Kiihnl’s signature without his 

authorization. (While Kiihnl was on vacation, STI had begun recruiting 

replacements.) 

After the firings, STI performed even more poorly on the contract. 

Questioned by the Air Force, STI attributed its poor performance to “false union 

claims/union litigation.” In July 2020, the Air Force awarded the contract to a 

competitor. 

 After the three initial firings on September 27, union activity increased at STI. 

Five days later, about ten STI employees met during lunch with union 
-4- 

representatives at a food hall on the Air Force base (separate from STI’s worksite). 

Conversations about unionizing continued during breaks and before work. By 

October 4, about 35 STI employees had signed authorization cards. In November, 

STI’s employees voted for union representation. 

On October 11, the union had filed an unfair labor practice charge against STI, 

challenging all the terminations. The General Counsel’s complaint alleged STI

violated Sections 8(a)(1) and (3) of the NLRA by firing the employees for union 

activity. The administrative law judge found that the firings were violations. The 

Board adopted the ALJ’s rulings, findings, and conclusions. The Board added that

the false verbal-counseling forms violated the NLRA.

This court will enforce the Board’s order “if the Board has correctly applied 

the law and its factual findings are supported by substantial evidence on the record 

as a whole.” Town & Country Elec., Inc. v. NLRB, 106 F.3d 816, 819 (8th Cir.

1997). 

II. 

The Board found that STI fired all 17 employees for union activity in violation 

of 8(a)(1) and (3) of the NLRA. Section 8(a)(1) makes it an unfair labor practice for 

an employer “to interfere with, restrain, or coerce employees in the exercise of” their 

rights to engage in concerted activities such as organizing and collectively 

bargaining. 29 U.S.C. § 158(a)(1). By Section 8(a)(3), “discrimination in regard to 

hire or tenure of employment ... to encourage or discourage membership in any 

labor organization” is an unfair labor practice. 29 U.S.C. § 158(a)(3). “Although 

an employer violates Section 8(a)(1) and (3) of the Act if it discharges an employee 

for engaging in protected activities, ‘employers retain the right to discharge workers 

for any number of other reasons unrelated to the employee’s union activities.’” 

Nichols Aluminum, LLC v. NLRB, 797 F.3d 548, 554 (8th Cir. 2015), quoting

NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 394 (1983). 
-5- 

 “Wright Line analysis is applied when an employer articulates a facially 

legitimate reason for its termination decision, but that motive is disputed.” NLRB 

v. RELCO Locomotives, Inc., 734 F.3d 764, 780 (8th Cir. 2013), citing Wright Line, 

251 NLRB 1083 (1980). 

[T]he Board’s General Counsel must prove “that the employee’s 

protected conduct was a substantial or motivating factor in the adverse 

action.” ... If, and only if, the General Counsel meets that burden, the 

burden shifts to the employer to exonerate itself by showing that it 

would have taken the same action for a legitimate, nondiscriminatory 

reason regardless of the employee’s protected activity. 

Nichols Aluminum, 797 F.3d at 554 (some internal quotation marks omitted), 

quoting Transp. Mgmt., 462 U.S. at 401. To prove an employee’s protected conduct 

was a substantial or motivating factor, “the General Counsel must prove a connection 

or nexus between the animus and the firing.” Tschiggfrie Props., Ltd. v. NLRB, 896 

F.3d 880, 886 (8th Cir. 2018). 

The Board here relied on circumstantial inferences to find animus and the 

required connection or nexus to the firings. Whether substantial evidence exists

depends on “‘the inherent strengths and weaknesses of the inferences drawn by the 

Board.’” Carleton Coll. v. NLRB, 230 F.3d 1075, 1078 (8th Cir. 2000), quoting

GSX Corp. of Mo. v. NLRB, 918 F.2d 1351, 1357 (8th Cir. 1990). In its findings 

and conclusions, the Board “is permitted to draw reasonable inferences” but “cannot 

rely on ‘suspicion, surmise, implications, or plainly incredible evidence.’” Mead & 

Mount Constr. Co. v. NLRB, 411 F.2d 1154, 1157 (8th Cir. 1969), quoting Universal 

Camera Corp. v. NLRB, 340 U.S. 474, 484 (1951). To affirm, the record “‘must do 

more than create a suspicion of the existence of the fact to be established.’” Bussen 

Quarries, Inc. v. Acosta, 895 F.3d 1039, 1045 (8th Cir. 2018), quoting NLRB v. 

Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939).
-6- 

The three September 27 firings

As for the first three terminations, the Board ruled that STI’s reason for the 

firings was “overwhelmingly pretextual” because STI had not previously fired 

employees for CARs and that the three employees did not have a history of 

violations. Strategic Tech. Inst., Inc., 2022 WL 4237157 at *9. The Board inferred

that any termination must have been based on Boyd’s learning that STI employees 

were considering unionizing. Id. (The Board agreeing with the ALJ’s finding that 

STI’s reasons for the firings were “overwhelmingly pretextual” because the 

“draconian punishment ... was an unprecedented response” to a CAR.). 

The Board relied on suspicion and unreasonable inferences. “[E]mployers 

retain the right to discharge workers for any number of ... reasons unrelated to the 

employee’s union activities.” Transp. Mgmt. Corp., 462 U.S. at 394. See generally

Cottrell v. Cottrell, 965 S.W.2d 129, 130 (Ark. 1998) (“It is well established under 

Arkansas law that when an employment contract is silent as to its duration, either 

party may terminate the relationship at will and without cause”). 

STI’s response to the CAR noted an increase in similar incidents. It stated

that “training and re-training have unfortunately proven not to be effective” and 

“these issues shall require action to be taken.” Each of the three fired employees 

played a role in leaving the screwdriver in the engine, justifying remedial action. 

STI stated a facially legitimate reason for the firings. See RELCO, 734 F.3d at 780. 

 The General Counsel then has the burden to prove that union activity was a 

substantial or motivating factor in the terminations. Nichols Aluminum, 797 F.3d 

at 554. While pretext can justify an inference of improper motive, that STI had not 

previously fired employees for other CARs does not render the three firings 

pretextual. STI’s response to the Air Force shows that performance errors were 

recurring, retraining was insufficient, and the incident was severe (“Counseling is in 

order before loss of limb or life occurs”). Heightened remedial action was 

reasonable. 
-7- 

The record lacks substantial evidence of pretext. The three employees were 

not linked to any union activity, making any connection or nexus a matter of 

suspicion. That Boyd knew some STI employees were discussing unionizing at the 

time of the three firings is not substantial evidence that the firings were motivated 

by anti-union animus. At most it creates a suspicion, which is an insufficient basis 

for an inference of improper motive. Mead & Mount Constr. Co., 411 F.2d at 1157. 

The Board erred in finding that the three September 27 firings were motivated 

by anti-union animus because the record lacks substantial evidence to infer pretext. 

The fourteen October 9 firings

Direct, demonstrated instances of anti-union hostility can support an inference 

of a causal connection between anti-union animus and a termination. See, e.g., 

RELCO, 734 F.3d at 781 (inferring improper motive after employer disparaged 

unions at an hour-long meeting, using abusive language toward a union defender); 

Hall v. NLRB, 941 F.2d 684, 688 (8th Cir. 1991) (inferring a hostile motive when 

the employer interrogated and coerced employees about union activity); York Prods., 

Inc. v. NLRB, 881 F.2d 542, 543 (8th Cir. 1989) (inferring motive from pretextual 

explanations when the employer threated to close the facility if employees 

unionized). 

Here, STI did not make any union-based threats or outbursts, question 

employees on union involvement, or ever comment on unionization before the 

October 9 firings. In fact, there is no evidence that Boyd reacted at all when he heard

that employees were considering unionizing. Boyd oversaw other union and nonunion contracts at STI and was never previously accused of anti-union bias. 

The General Counsel contends that STI’s later comments to the Air Force are

direct evidence of animus. Responding to an Air Force inquiry, STI attributed its 

waning performance to “false union claims/union litigation.” STI made these

comments after the firings, responding to a performance inquiry by the Air Force
-8- 

after the union initiated its unfair labor practice charge against STI. STI’s comments 

do not establish animus at the time of the firings.

In the absence of direct evidence, the Board inferred animus by STI, and a

nexus between animus and firings, from Boyd’s knowledge of unionizing

discussions and the firings. The only evidence of knowledge is the two phone calls 

where Boyd learned that some STI employees were considering unionizing. There 

is no evidence that Boyd knew of the escalating union activity after he fired the first 

three employees. 

To infer knowledge of organizational efforts, the Board invokes the “small 

plant doctrine,” which can infer employer knowledge of union activity when it

occurs in a small facility. See Amyx Indus., Inc. v. NLRB, 457 F.2d 904, 907 (8th 

Cir. 1972) (“The essence of the small plant doctrine is that in a small plant certain 

activities are likely to be noticed.”). “In this circuit, however, the small plant 

doctrine will not in itself support an inference of an employer's knowledge of union 

activities. The smallness of the plant may be material but only if other evidence 

exists indicating a likelihood of such knowledge.” Alumbaugh Coal Corp. v. 

NLRB, 635 F.2d 1380, 1384 (8th Cir. 1980). 

Here, no other evidence indicates a likelihood that Boyd knew of the union 

activities (other than the two August phone calls). Boyd was not present at the Little 

Rock worksite to see first-hand any discussions or organizational activity. There is 

no evidence that onsite management reported union activity to Boyd. STI employees 

and a union official met at an Air Force dining hall, not at STI’s worksite where 

management observation would be more likely. Except for this meeting, discussions 

occurred at lunch, in the breakroom, and outside of work hours. While the ALJ and 

the Board did not credit any of Boyd’s testimony (including that he was never 

informed of any unionizing until receiving the election petition after the firings), 

there is no affirmative evidence, except for the two August phone calls, that he knew 

of the efforts. 
-9- 

With the small plant doctrine inapplicable, any inference of animus must come 

from the two phone calls and the timing of the firings. The Board concluded that 

the context of the firings indicates animus and pretext. 

The Board found it suspicious and indicative of unlawful motive that Boyd 

fired 14 employees six weeks after learning that some STI employees were 

discussing unionizing. While this court considers the timing of terminations in 

evaluating improper motive, it typically does so when the record also contains some 

direct evidence of anti-union animus. See, e.g., RELCO, 734 F.3d at 781; McGrawEdison Co. v. NLRB, 419 F.2d 67, 75 (8th Cir. 1969); Greater Omaha Packing Co. 

v. NLRB, 790 F.3d 816, 821 (8th Cir. 2015). Here, there is no direct evidence of 

animus. 

The timing of these firings does not reasonably infer an improper motive. Cf. 

EEOC v. Kohler Co., 335 F.3d 766, 773 n.7 (8th Cir. 2003) (holding in a Title VII 

case that “timing alone is usually insufficient to establish that the employer's 

legitimate non-discriminatory reason for discharge is pretext”). Boyd learned of 

potential union activity on August 30, but took no action against the 14 employees 

until September 20, when he asked Kiihnl to rank the Little Rock employees. The 

critical intervening event was the September 18 CAR. Boyd asked Kiihnl for the 

rankings within a day of learning of the CAR and began recruiting replacements. 

Just over two weeks after receiving the rankings (when Kiihnl returned from 

vacation), he carried out the terminations. 

The Board also asserts that the circumstances of the firings indicate that STI’s 

“poor performance” justification was pretextual. Pretext can infer an improper 

motive, and an employer’s justification may be pretextual when it fails to withstand 

scrutiny. York Prods., 881 F.2d at 545–46. 

The Board found that the rankings and falsified disciplinary forms indicate 

pretext. Kiihnl testified that his rankings were based on characteristics such as 

performance, attendance, and interpersonal skills—all legitimate factors. Nothing 
-10- 

in the record suggests that Boyd ordered Kiihnl to, or that Kiihnl actually did, 

consider union activity when ranking the employees. Although Kiihnl scored each 

employee a “3-out-of-5”, the rankings themselves were based on legitimate 

characteristics and determined who was fired. 

The General Counsel argues Boyd used the falsified verbal-counseling forms 

to cover up his anti-union motive for the firings. Boyd’s inclusion of these forms 

may create suspicion, but does not overcome the evidence that the firings were 

performance-based. The Board “cannot rely on suspicion.” Mead & Mount Constr. 

Co., 411 F.2d at 1157 (internal quotation omitted). The falsified verbal-counseling 

forms are not substantial evidence of pretext or improper motive. 1

The General Counsel failed to meet its burden of providing substantial 

evidence that STI harbored anti-union animus and that the terminations were 

motivated by animus. The Board erred in finding that the fourteen October 9

terminations were motivated by anti-union animus. 

III. 

The General Counsel asserts that this case is a “mass discharge” case. The 

Board has ruled that when terminations constitute a mass discharge “the General 

Counsel [is] not required to show a correlation between each employee's union 

activity and his or her discharge.” ACTIV Indus., Inc., 277 NLRB 356, 356 n.3 

(1985) (citation omitted). This court has not adopted that standard. See Ballou 

Brick Co. v. NLRB, 798 F.2d 339, 342 (8th Cir. 1986) (“We note also that other 

courts have found it is not necessary that the general counsel prove the employer's 

knowledge of a specific employee's opinion as to the union, when there is a mass 

layoff for the unlawful purpose of discouraging union membership.”) (emphasis 

added). The General Counsel relies on NLRB v. Cell Agricultural Manufacturing

1

Because, as discussed, no link to anti-union animus has been shown, the 

falsified verbal-counseling forms are not violations, contrary to the Board’s 

conclusion. 
-11- 

Co. for the proposition that this court has adopted the “mass discharge” standard. 

Cell Agricultural, 41 F.3d 389, 394 (8th Cir. 1994). Cell Agricultural, analyzing a 

“mass layoff,” did not adopt the NLRB’s standard. 

Even if this standard were applied, it would not affect this case. Under the 

Board’s “mass discharge” standard, the General Counsel must establish by 

substantial evidence “that the mass discharge was implemented to discourage union 

activity or in retaliation for the protected activity of some.” David Saxe Prods., 

LLC, 370 NLRB 103, 157–158 (Apr. 5, 2021). The Board’s standard requires a 

nexus between anti-union animus and the terminations. As discussed, the record 

lacks substantial evidence of animus or nexus.

* * * * * * * 

STI’s petition is granted. This court vacates the Board’s order, denies 

enforcement, and remands for proceedings consistent with this opinion.

______________________________