United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-3001

___________________________

Nichols Aluminum, LLC

lllllllllllllllllllllPetitioner

v.

National Labor Relations Board

lllllllllllllllllllllRespondent

___________________________

No. 14-3202

___________________________

National Labor Relations Board

lllllllllllllllllllllPetitioner

v.

Nichols Aluminum, LLC

lllllllllllllllllllllRespondent

____________

National Labor Relations Board

____________

 Submitted: May 12, 2015

 Filed: August 13, 2015

____________
Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.

____________

RILEY, Chief Judge.

Nichols Aluminum, LLC (Nichols) petitions for review of a National Labor

Relations Board (Board) order finding Nichols violated Section 8(a)(1) and (3) of the

National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), (3), by discharging union

member Bruce Bandy on April 27, 2012, for participating in a strike. The Board

seeks enforcement of its order. Having jurisdiction under 29 U.S.C. § 160(e) and (f),

we grant the petition for review and deny enforcement.

I. BACKGROUND

A. Facts

Nichols manufactures aluminumat two plantsin Davenport, Iowa: the Nichols

Aluminum Casting plant (casting plant) and the Nichols Aluminum Finishing plant

(finishing plant). Nichols employed approximately 165 employees at the casting

plant. Since at least 1978, Nichols’s employees have been represented by the

International Brotherhood of Teamsters Union, Local No. 371 (the union). 

On January 20, 2012, during negotiations to replace a collective bargaining

agreement (CBA) that had expired in November 2011, the union called for a strike. 

Most of the casting plant employees participated in the strike—although a few

crossed the picket line. Nichols hired replacement workers to fill the gap.

Bandy, a 34-year Nichols employee and blending operator at the casting plant,

participated in the strike. He worked the picket line once a week but did not take a

strategic or leadership role in the union or the strike, nor did he otherwise distinguish

himself from the other strikers. 

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On April 6, 2012, the union ended the strike. Nichols began recalling to work

those strikers who had not been permanently replaced, including Bandy. As

employees returned, Nichols asked them to take what the parties here describe as a

“no-strike pledge.” The pledge required employees to say they were returning to

work at Nichols and would not “strike again over the same dispute.” The pledge

notified employees that doing so would subject them “to discipline up to and

including the possibility of discharge.” 

Without objection, Bandy verbally took the pledge when he returned to work

on April 11, 2012, but did not sign a written pledge form as some others had done

before the union instructed its members to refuse. Nichols maintains the pledge

merely confirmed returning employees would not engage in unlawful intermittent

striking, which the Board’s GeneralCounsel agreesis not protected activity under the

Act.

At a post-strike meeting that Bandy attended, Nichols also reviewed and

distributed its longstanding “zero tolerance” workplace violence policy, which was

incorporated into the CBA. With the help of a PowerPoint presentation, Nichols

reminded returning strikers—as well asreplacement workers and employees who had

crossed the picket lines—that “[h]arassing, disruptive, threatening, and/or violent

situations or behavior by anyone, regardless of status, will not be tolerated and”

offending employees would be “subject to discharge for the first offense.” Nichols

posted a version of that notice throughout its plants. The policy provided employees

were subject to discharge for, among other things, “[m]aking threatening remarks . . .

that constitute a threat against another individual,” and “[a]ggressive or hostile

behavior that creates a reasonable fear of injury to another person or subjects another

individual to emotional distress.” 

On April 25, 2012, two weeks after his return, Bandy was involved in a

confrontation with Keith Braafhart, a finishing plant employee who crossed the picket

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line and began working in the casting plant during the strike. Bandy testified his

working relationship with Braafhart was “not good” and that Braafhart called him

derogatory names from the time they first met.

At the time of the confrontation with Bandy, Braafhart was driving a forklift

up a ramp that led to one of the aluminum melders. Bandy, who had recently exited

the break room near the ramp, waited for the forklift to pass. Braafhart honked the

horn as he was required; however, he may have sounded the horn “a little more” than

necessary. When Bandy recognizedBraafhart, Bandy drew his thumb across his neck

in a “cut throat” gesture that Braafhart construed as a threat. Braafhart testified

Bandy looked right at him with a “death stare” from about ten feet away, “gave [him]

the mean mug, drew his thumb across his throat at [him] and that was it.” Braafhart

understood the gesture to mean “I’m going to cut your throat.” 

After the gesture, Braafhart parked the forklift and asked a nearbywitness, Sam

Harroun, whether he had seen the gesture. Harroun “chuckled” and said he had seen

Bandy. Harroun, who thought Bandy might have been signaling Braafhart to stop

“blaring his horn,” did not perceive the gesture as a threat. When Braafhart told

Bandy, “I’mtaking you upstairs,” Bandy replied that he was “scratching [his] throat.” 

As Braafhart left to find a supervisor, Bandy chuckled as he told Harroun “his throat

itched and that was it.”

 

Braafhart reported the incident to Nichols’s management and prepared a

written statement. Bandy’s supervisor, Vick Hansen, asked Bandy to join him in a

meeting with Plant Manager Bill Hebert, Human Resources Vice-President Mike

Albee, and a union steward. At the meeting, Bandy denied making any threat, again

explaining he was “scratching his throat.” 

1

At trial, Bandy changed his story, claiming the gesture was an involuntary 1

reaction as he lurched back to avoid the forklift. The presiding administrative law

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Albee sent Bandy home, advising him Nichols would be in touch. Bandy

gathered his things and left without an escort. Continuing its investigation, Nichols

spoke with Harroun, who opined the gesture was not a threat. After discussing the

matter with his management team, Hebert decided to discharge Bandy for violating

Nichols’s “zero tolerance” workplace violence policy. On April 27, 2012, Human

Resources Manager Kristy Riley notified Bandy he had been discharged.

 

B. Procedural History

On June 8, 2012, the union filed an unfair labor practices charge with the Board

challenging Bandy’s termination. The Board’s General Counsel issued a complaint

alleging Nichols discharged Bandy for participating in the strike, in violation of

Section 8(a)(1) and (3) of the Act. On April 8, 2013, after observing the demeanor

of the key witnesses at trial and examining the record evidence, the ALJ concluded

Nichols did not violate the Act by discharging Bandy after he made a “cut throat”

gesture that Braafhart and Nichols “reasonably construed” as a serious threat. 

2

In analyzing Nichols’s motive for discharging Bandy, the ALJ rejected the

General Counsel’s proposal that Bandy’s “strike participation alone provide[d]

sufficient circumstantial proof upon which to predicate animus.” Noting that Bandy

participated in the strike with almost all of Nichols’s other employees but did not take

judge (ALJ) rejected Bandy’s “explanation and reenactment” of the lurch as

“inconsistent and incredible.” 

The ALJ evaluated the propriety of Bandy’s discharge under “[t]he so called

2

Wright Line analysis[, which] applie[s] 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), approved by NLRB v. Transp. Mgmt. Corp., 462 U.S. 393,

397-99, 401-03 (1983), overruled in part on other grounds by Dir., Office of Workers’

Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 277-78

(1994)).

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an “unusual, strategic, or significant role during the walkout,” the ALJ searched the

record for evidence of discriminatory motive. The ALJ found “no background of

independent Section 8(a)(1) violations during the period after the strike” nor “any

evidence of hostile remarks or actions by [Nichols] since the strike concluded and

employees returned to work.” Reviewing what the ALJ described as “a mixed bag

ofCompany responsesto employee-on-employee confrontations,” the ALJ concluded

Nichols’s prior enforcement of its no-violence policy did not establish that Nichols

“engaged in the disparate treatment of Bandy by discharging him for threatening

another employee with serious physical injury or worse.” Based on its review of the

record, the ALJ found insufficient evidence of antiunion animus to support the

discrimination charge. 

On August 18, 2014, the Board, over a strong dissent, reversed the ALJ’s order,

concluding Nichols “violated Section 8(a)(3) and (1) of the Act by discharging . . .

Bandy.” As the General Counsel acknowledges, “The Board adopted many of the

findings and rulings of the [ALJ], including the [ALJ]’s witness credibility

determinations, but the Board reversed the [ALJ]’s ultimate conclusion.” Rejecting

the ALJ’s determination that the General Counsel had failed to show Nichols

discharged Bandy for participating in the strike, the Board, “[c]ontrary to the [ALJ],”

stated it found “direct evidence of animus and a sound basis for inferring it.” 

Specifically, the Board concluded the GeneralCounsel had met its burden ofshowing

Bandy’s strike activity was a motivating factorin Nichols’s decision to discharge him

based upon (1) the “no-strike pledge” to which Bandy agreed; (2) “the timing of

Bandy’s discharge” after the strike; and (3) what the Board saw as Nichols’s

“disparate treatment of Bandy’s conduct” under its disciplinary policy. Deciding

Nichols failed to show it would have fired Bandy regardless of his participation in the

strike, the Board ordered Bandy reinstated with backpay and other damages.

The dissent sharply criticized the majority for “rely[ing] on scant evidence and

inference to put themselves in position to substitute their judgment for [Nichols’s] as

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to what . . . Bandy did and whether it warranted discharge,” citing NLRB v. Blue

Bell, Inc., 219 F.2d 796, 798 (5th Cir. 1955). See also Epilepsy Found. of Ne. Ohio

v. NLRB, 268 F.3d 1095, 1105 (D.C. Cir. 2001) (“The Board does not have authority

to regulate all behavior in the workplace and it cannot function as a ubiquitous

‘personnel manager,’ supplanting its judgment on how to respond to unprotected,

insubordinate behavior for those of an employer. . . . [A]n employer may discharge

an employee for a good reason, a bad reason, or no reason, so long as it is not for an

unlawful reason.”). The dissent agreed with the ALJ “that the General Counsel failed

to [establish] that animus against protected strike activity motivated the discharge.” 

The dissent also admonished the Board for “mischaracteriz[ing] the General

Counsel’s initial Wright Line burden to prove that animus against union or other

protected concerted activity motivated an adverse action.” Emphasizing (1) the

absence of any evidence to “support an inference that animus against [Bandy’s]

particular strike activity,” which was indistinguishable from scores of other strikers,

“caused [Nichols] to single him out for reprisal,” and (2) the lack of any “apparent

connection between the no-strike pledge and Bandy’s discharge,” the dissent

concluded the General Counsel failed to prove the requisite “nexus between Bandy’s

strike participation and the motivation for his discharge.”

II. DISCUSSION

A. Standard of Review

“We 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, even if we might have reached a different decision had the matter been before

us de novo.” Town & Country Elec., Inc. v. NLRB, 106 F.3d 816, 819 (8th Cir.

1997). “‘Substantial evidence is more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” 

NLRB v. La-Z-Boy Midwest, 390 F.3d 1054, 1058 (8th Cir. 2004) (quoting Consol.

Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)).

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“In considering whether substantial evidence supportsthe Board’s decision,we

must take into account ‘whatever in the record fairly detracts from its weight,’”

NLRB v. MDI Commercial Servs., 175 F.3d 621, 630 (8th Cir. 1999) (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)), and “‘must view 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)). “‘The Board, in reaching its decision,

is permitted to draw reasonable inferences, and to choose between fairly conflicting

views of the evidence. It cannot rely on suspicion, surmise, implications, or plainly

incredible evidence.’” Concepts & Designs, Inc. v. NLRB, 101 F.3d 1243, 1245 (8th

Cir. 1996) (quoting Mead & Mount Constr. Co. v. NLRB, 411 F.2d 1154, 1157 (8th

Cir. 1969)). 

“We examine the Board’s findings more critically when, as here, the Board’s

conclusions are contrary to the ALJ’s.” Earle Indus., Inc. v. NLRB, 75 F.3d 400, 404

(8thCir. 1996). “Although the substantial evidence standard still applies, the Board’s

evidence must be stronger than would be required in a case where it had accepted the

ALJ’s findings, since the ALJ’s opinion is part of the record against which the

substantiality of the evidence must be measured.” GSX Corp., 918 F.2d at 1356

(internal citations omitted).

 

B. Discriminatory Discharge

Section 8(a)(1) of the Act makes it “an unfair labor practice for an employer

to interfere with, restrain, or coerce employees in the exercise of” their rights to

organize, collectively bargain, and engage in similar concerted activities. 29 U.S.C.

§ 158(a)(1). Section 8(a)(3) prohibits employers fromusing “discrimination in regard

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

labor organization.” Id. at § 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

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reasons unrelated to the employee’s union activities.” Transp. Mgmt., 462 U.S. at

394. 

To establish an unfair labor practice under the Wright Line framework, the

Board’s General Counsel must prove “that the employee’s protected conduct was a

substantial or motivating factor in the adverse action.” Id. at 401. 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.’” Carleton

Coll., 230 F.3d at 1078 (quoting Earle Indus., 75 F.3d at 404). This analysis is

designed to “protect[] the rights of employees while preserving an employer’s right

to discharge an employee for a valid cause.” NLRB v. Fixtures Mfg. Corp., 669 F.2d

547, 550 (8th Cir. 1982).

In the case at bar, the General Counsel charged Nichols with unlawfully

discharging Bandy for participating in the strike. Nichols does not dispute thatBandy

participated in protected strike activity and that Nichols was aware of it. Nichols,

instead, argues the Board “incorrectly applied the long-established Wright Line

standard,” improperly relieving the General Counsel of its burden to prove Bandy’s

protected activity motivated Nichols’s decision to terminate him, and “made factual

findings that were not supported by substantial evidence.” See RELCO Locomotives,

734 F.3d at 780 (“In appraising a challenge to an employee’s termination allegedly

caused by protected labor activity, the question is whether the employee’s termination

was motivated by the protected activity.”). Reiterating Bandy’s unremarkable role

in the strike and his ready assent to the pledge, Nichols contendsthe General Counsel

failed to establish the requisite causal connection between Bandy’s participation in

the strike “and the alleged discriminatory act”—Bandy’s discharge. Nichols’s points

are well taken. 

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Under Wright Line, “our task in resolving cases alleging violations which turn

on motivation is to determine whether a causal relationship existed between

employees engaging in union or other protected activities and actions on the part of

their employer which detrimentally affect such employees’ employment.” Wright

Line, 251 NLRB at 1089. To prove discriminatory discharge, the General Counsel

must establish “‘that the employee was discharged for his union activities or

membership—that but for his union activities ormembership, he would not have been

discharged.’” Concepts & Designs, Inc., 101 F.3d at 1245 (quoting Mead & Mount

Constr., 411 F.2d at 1157). Simple animus toward the union “is not enough. ‘While

hostility to [a] union is a proper and highly significant factor for the Board to consider

when assessing whether the employer’s motive was discriminatory, . . . general

hostility toward the union does not itself supply the element of unlawful motive.’” 

Carleton Coll., 230 F.3d at 1078 (alterations in original) (quoting GSX Corp., 918

F.2d at 1357).

After careful review of the administrative record, we conclude the Board, in

reversing the ALJ’s decision and finding Nichols violated Section 8(a)(1) and (3) of

the Act, misapplied the Wright Line standard and failed to analyze causation

properly. Because the Board did not hold the General Counsel to its burden of

proving discriminatory animus toward Bandy’s “protected conduct was a substantial

ormotivating factorin” Nichols’s decision to discharge him,Transp. Mgmt., 462 U.S.

at 401, we are unable to enforce the Board’s order. See Multimedia KSDK, Inc. v.

NLRB, 303 F.3d 896, 900 (8th Cir. 2002) (en banc). 

III. CONCLUSION

We grant Nichols’s petition for review and set aside the Board’s order. The

Board’s cross-petition for enforcement is denied.

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MELLOY, Circuit Judge, concurring.

I concur with respect to the majority’s decision denying enforcement of the

Board’s order because the Board misapplied the causation element within the Wright

Line standard. Our precedent unequivocally requires more than general hostility

toward a union to satisfy the element of unlawful motive. Carleton College v. NLRB,

230 F.3d 1075, 1078 (8th Cir. 2000). The Board failed to engage in any meaningful

discussion of this requirement. The Board was put on notice, at least by the

dissenting Board member, that in the Eighth Circuit the Wright Line analysis requires

more than a showing of anti-union animus and protected activity. There must be a

nexus between the union activity and the discharge. To be sure, the level of antiunion animus can certainly be considered and is a highly relevant factor in

establishing that connection. However, in this case, the Board made no attempt to

“connect the dots” between the anti-union animus, Bandy’s strike participation, and

his ultimate discharge.

The dissent makes a powerful argument for the proposition that, had the Board

done the correct analysis, it could show a causal connection. The disparate treatment

of Bandy, compared to other non-striking employees as outlined in the dissenting

opinion, is extremely troubling. It could very well have provided the substantial

evidence that would have allowed this Court to enforce the Board’s order had it done

the proper analysis. However, as the majority opinion points out, failure to engage

in a proper legal analysis precludes our Court from enforcing the order. 

 

Generally, if an agency applies the wrong legal framework or fails to address

an argument, we have the authority to remand the case to the agency for further

review. See Ademo v. Lynch, Nos. 13–2621, 13–3566, 2015 WL 4568941, at *9 (8th

Cir. July 30, 2015) (immigration); Caviness v. Massanari, 250 F.3d 603, 605–606

(8th Cir. 2001) (social security). In Multimedia KSDK, Inc. v. NLRB, 303 F.3d 896,

900 (8th Cir. 2002) (en banc), however, we held that unless the “Board offers an

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alternative theory on which to uphold its decision” or the Board requests a remand,

we cannot remand a case to the Board. I write separately to emphasize that, in the

absence of this precedent, I would be inclined to remand this case and permit the

Board to apply the correct legal framework. A review of the record indicates Nichols

may have engaged in more than general anti-union animus. But, as the majority

opinion points out, precedent prevents us from remanding this case. Therefore, I

concur with the majority opinion and deny enforcement of the Board’s order.

 

MURPHY, Circuit Judge, dissenting. 

Because substantial evidence in the record shows that Nichols Aluminum

(Nichols) violated Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act

by terminating Bruce Bandy for engaging in the protected conduct of striking, I

dissent. Record evidence ofthe company's animus against striking includes an illegal

use of a no strike pledge, disparate enforcement of its stated policy of zero tolerance

of violence, and its discriminatory treatment of returning strikers. The Board

concluded from such evidence that the General Counsel met his Wright Line burden

to show that animus against the workers' strike motivated the illegal termination of

Bruce Bandy who participated on the picket line. 

The Board was entitled to consider the Nichols no strike pledge as strong

evidence of animus against the protected conduct ofstriking, conduct in whichBandy

had participated. Nichols hired replacement workers during the strike and converted

100 of them to permanent status on April 4. When the union ended its strike, Nichols

asked returning strikers to agree that they would be subject to discharge if they went

"on strike again over the same dispute." As the Board noted, this no strike pledge did

not define the term "same dispute" at a time when negotiations on a new contract

were still ongoing. Two of the three Board members stated they would have found

the no strike pledge unlawful in itself had it been alleged as a separate violation of the

Act, and it was "strong evidence of animustoward the protected conduct ofstriking."

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To condition employment on a promise not to engage in protected activity has been

found unlawful, see In re Pratt Towers, Inc., 338 N.L.R.B. 61, 64 (2002), and hostility

toward a union is "a proper and highly significant factor for the Board to consider

when assessing" whether particular conduct resulted from a discriminatory motive. 

Carleton Coll. v. NLRB, 230 F.3d 1075, 1078 (8th Cir. 2000) (internal quotation

marks omitted). 

In addition to Nichols' use of an unlawful no strike pledge, the Board also

considered the company's inconsistent application ofits zero tolerance policy in favor

of non strikers. Two incidents not mentioned by the majority are particularly relevant

to the Board's determination that Bandy was terminated for his participation in

protected labor activity. Each ofthe incidents involved replacement workers who had

not participated in the strike but who had engaged in similar or more severe conduct

than Bandy's gesture. Neither was terminated. 

The first incident occurred on May 4, 2012, one week after Bandy's

termination. When returning striker Robert Schalk was clocking out, he saw

replacement employee Craig Sulzberger grab himself in the crotch and yell "What the

fuck are you looking at, you got a fucking problem?" Schalk left the building, but

outside he was accosted by Sulzberger who asked him "if [he] thought he was pretty

and what his fucking problem was." While Schalk attempted to reach his car,

Sulzberger stepped in front of himand continued to curse. Schalk suggested they talk

to a supervisor, and Sulzberger responded "that would be fucking fine, let's fucking

do it." When they spoke with supervisor Phil McBroom, he asked Schalk "What the

fuck do you want me to do about it?" Schalk responded that he thought they were to

report such incidents as part of the zero tolerance policy. McBroom told him he

"should fucking grow up," and if he were to do anything about it, he would fire both

men. After Schalk reported the incident to human resources and plant manger Bill

Hebert, Hebert indicated they would investigate. Sulzberger was eventually written

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up for violating the policy, but he was not discharged. In October Schalk resigned,

citing a hostile work environment. 

In the second incident, replacement worker Sam Harroun made a verbal threat

to another employee during a heated conversation about which department was to

blame for allowing molten aluminum to cool. After a comment by Harroun was

contradicted by another employee, Harroun turned and said "I'mgoing to take you out

back and beat your ass." When a third employee interrupted that Harroun often slept

on his shift, Harroun replied "well, you're nothing but a little bitch." A supervisor

intervened, and the encounter ended. No further action was taken by supervisors in

response to Harroun's threat. 

On appeal Nichols claims that Sulzberger and Harroun, the two comparators

identified by the General Counsel, both engaged in conduct that was less severe than

Bandy's cut throat gesture. The record does not support this claim, however. 

Harroun, the sole neutral witness, told Nichols during the investigation that he had

not perceived Bandy's gesture to be "any threat at all," and he testified that the gesture

was commonly used around the plant to shut off or stop something. He had

understood the motion to be a signal for Keith Braafhart to stop blaring the forklift's

horn. While Bandy denied making any threat, Harroun made an explicit verbal threat

and Sulzberger cursed a coworker and physically blocked access to his car. 

Nevertheless,striker replacements Sulzberger and Harroun were not terminated while

Bandy was. 

Nichols' treatment of an employee not named as a comparator, Mike

McGolthlen, also shows preferential treatment of non strikers. Before the strike,

McGolthlen brought a handgun to work which he cleaned and loaded with a clip of

bullets. Although he made no explicit threats, a coworker was alarmed and reported

him to supervisors. McGolthlen wasfired under the company's zero tolerance policy

on January 13, 2012, but he was rehired as a replacement employee after the strike

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began, a mere one month later. This rehiring was evidence that Nichols overlooked

even severe violations of its reported zero tolerance policy. Nichols raises two other

instancesin which it fired employees for violating the zero tolerance policy, but both

situations involved explicit threats. Before the strike, plant manager Hebert fired

employee Ed Fountain for verbally threatening to bring a baseball bat into the office

to beat a female human resources representative. After the strike ended, Hebert

discharged non striker Roosevelt Smith after he told his supervisor he had weapons

in his vehicle and he intended to "shoot him in the gut." The severity of these

incidents distinguishes them from Bandy's hand gesture, and neither shows Nichols

consistently applied its policy. 

Although the majority concludes that the Board improperly analyzed causation

under the Wright Line framework, the General Counsel's initial Wright Line burden

is simply "to demonstrate that the employee was engaged in protected activity, that

the employer knew of this protected activity; and that the termination was motivated

by anti-union animus." NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 783 (8th

Cir. 2013). The Board applied the proper Wright Line framework, and substantial

evidence supports its conclusion that Nichols' "animus toward the recently ended

strike motivated [it] to discharge Bandy."

The Supreme Court has explained that our appellate review "may not displace

the Board's choice between two fairly conflicting views, even though the court would

justifiably have made a different choice had the matter been before it de novo." 

United Exposition Serv. Co., Inc. v. NLRB, 945 F.2d 1057, 1059 (8th Cir. 1991)

(internal quotation marks omitted)(quoting NLRB v. Walton Mfg. Co., 369 U.S. 404,

405 (1962). We must uphold the Board's decision if the record as a whole contains

substantial evidence to support its factual findings. Town & Country Elec., Inc. v.

NLRB, 106 F.3d 816, 819 (8th Cir. 1997). 

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Rather than applying the appropriate standard, acknowledging the Board's

expertise, and considering both the no strike pledge and disparate treatment of

striking employees by Nichols, the majority has substituted its own judgment for that

of the Board. The Board's determination that Nichols violated the Act by terminating

Bandy for his participation in the worker'sstrike issupported by substantial evidence,

and its order should be enforced. I therefore dissent.

______________________________

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