Nichols Aluminum, Inc.

216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Nichols Aluminum, LLC and Teamsters Local Union No. 371. Case 25–CA–082690 August 18, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND JOHNSON On April 8, 2013, Administrative Law Judge Michael A. Rosas issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Re- spondent filed an answering brief, and the General Coun- sel filed a reply brief. The Respondent filed cross- exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Or- der. The complaint alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging em- ployee Bruce Bandy because he engaged in concerted activity in support of Teamsters Local Union No. 371 (the Union).2 The judge dismissed the complaint, find- ing that the evidence failed to establish that the Respond- ent harbored antiunion animus and finding, further, that the Respondent had lawfully discharged Bandy under its antiharassment policy. For the reasons set forth below, we disagree as to both findings and conclude that Ban- dy’s discharge violates the Act as alleged. Facts A. Bandy’s Participation in the 2012 Strike The Respondent, which operates aluminum casting and finishing plants, has had a bargaining relationship with the Union since at least 1978. After the parties’ collec- tive-bargaining agreement expired in November 2011 and during bargaining over a successor agreement, em- ployees began a union-initiated strike on January 20, 1 The Respondent has implicitly excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear pre- ponderance of all the relevant evidence convinces us that they are in- correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 The judge mistakenly stated that the General Counsel alleged that Bandy was discharged because he supported the Union in the strike “the following year.” Because it is clear and undisputed that the strike preceded, rather than followed, Bandy’s discharge, the judge’s error is not material. 2012.3 Bandy, a longtime union member who had been employed by the Respondent since 1978, most recently as a blender operator, participated in the strike. During the strike, the Respondent hired replacement employees. When the strike ended on April 6, the Respondent re- tained approximately 100 replacement employees and told the strikers who had not been replaced to report for work. When Bandy and other strikers returned to the plant, the Respondent’s managers told them they could not work unless they promised not to strike again. The man- agers presented Bandy and the other strikers with a form containing a pledge that they would not strike again over the issues that caused the strike. The form, captioned “Returning Strikers,” included spaces for the striker to fill in his name and the date and time. Below that were two questions, “Are you here to work at Nichols?” and “Do you promise that you will not go out on strike again over the same dispute that caused the strike that just end- ed?” Spaces were provided for a written yes or no an- swer. The form then stated: You are now on notice that if you break that promise and go on strike again over the same dispute you will be subject to discipline up to and including the possibility of discharge. The form did not define the scope of “the same dispute.” It concluded with spaces for two witnesses’ signatures. A number of returning strikers signed the form before the Un- ion intervened and objected; thereafter, the Respondent read the form to other returning strikers. It is undisputed that Bandy agreed to the pledge not to strike again over the same dispute and the Respondent’s managers were aware of this.4 B. Bandy’s Discharge On April 27, approximately 2 weeks after Bandy’s re- turn, the Respondent discharged him under its zero- tolerance (or “No Tolerance”) policy concerning threats and harassment. Two days earlier, on April 25, employ- ee Keith Braafhart, who had not participated in the strike, was driving a forklift near the melding area. Bandy exit- ed the melding back room and walked to the right of Braafhart, who slowed the forklift and honked its horn a few times. In response, Bandy looked at Braafhart and brought his hand across his neck with his thumb pointing 3 All dates refer to 2012, unless otherwise stated. In his decision, the judge refers to the events surrounding the Janu- ary 20, 2012 strike as an “Organizing Campaign.” As stated above, the Union has been the representative of the Respondent’s employees since at least 1978, and the record does not show that any organizing activi- ties occurred during the timeframe relevant to this case. 4 Given the lack of any dispute that Bandy agreed to the pledge, we find immaterial the judge’s apparent error in stating that Bandy had “signed” the pledge. 361 NLRB No. 22 NICHOLS ALUMINUM, LLC 217 up in what Braafhart construed as a “cut throat” gesture. Braafhart reported Bandy’s gesture and his interpretation of it as a threat to Human Resources Vice President Mike Albee and later met with Albee, Plant Manager Bill Hebert, and Blending Supervisor Vick Hansen. Just pri- or to reporting the interaction to management, Braafhart asked replacement worker Sam Harroun if he had wit- nessed the exchange. Harroun replied that he had and that he thought that Bandy was signaling Braafhart to stop blaring the forklift’s horn. Harroun similarly told management that Bandy’s gesture resembled a request to shut or cut off something.5 When questioned about the incident, Bandy denied that he made any gesture, stating that he was merely scratching his throat. The Respond- ent suspended Bandy that day and discharged him 2 days’ later. C. The Respondent’s Zero-Tolerance Policy The parties’ expired collective-bargaining agreement contains a provision that certain offenses committed by employees, “Group 1” offenses, could result in termina- tion without a prior warning. Group 1 offenses include: “6. Assault on any employees. Violation of the Compa- ny’s policy on Workplace Violence and Threats.” The Respondent’s longstanding “Violence in the Workplace” policy, in turn, prohibits possession of a firearm on the Respondent’s property, causing physical injury to anoth- er person, “[m]aking threatening remarks . . . that consti- tute a threat against another individual,” and “[a]ggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another indi- vidual to emotional distress.” During poststrike meetings with employees, the Re- spondent emphasized certain policies, including its “Vio- lence in the Workplace” policy. It displayed a Power- Point slide stating: Harassing, disruptive, threatening, and/or violent situa- tions or behavior by anyone, regardless of status, will not be tolerated and subject to discharge for the first of- fense. 5 The Respondent excepts to the judge’s finding that Harroun in- formed management that he did not construe Bandy’s gesture as a threat, citing a document that Harroun signed shortly before the hearing in this case that does not include that fact. But the judge’s finding accurately reflects Harroun’s credited testimony. When asked if he ever explained his opinion of Bandy’s gesture to management, Harroun stated: Well, we do that all the time. I mean, that’s a hand gesture like when you want something shut off or cut off, or whatever. I mean, that’s just a gesture we’ve always used. In my opinion, I told them that day that that’s what I felt—you know, that he blared the horn, that’s like enough, it’s done, it’s over, you know. I told Kris Riley the same thing, that I didn’t think . . . it wasn’t any threat at all. I still don’t be- lieve it was. The Respondent also posted the above statement on its bul- letin boards. On May 4, following the strike and a week after Ban- dy’s discharge, employee Robert Schalk, a returning striker, was waiting at the timeclock when he was ap- proached by Craig Saltzburger, a striker replacement.6 Saltzburger shouted at Schalk, “What the fuck are you looking at? You got a fucking problem?” while making an obscene gesture. Continuing to shout, Saltzburger followed Schalk outside and attempted to block him from entering his car. Schalk returned to the facility and Saltzburger followed him, shouting, “You got a fucking problem? What are you looking at?” Schalk found Su- pervisor Phil McBroom and reported the problem. In response, McBroom told Schalk that he “should fucking grow up” and that if Schalk wanted him to do something, he would fire both employees. Schalk reported the incident with Saltzburger and McBroom’s response to Human Relations Manager Kris- ty Riley and Hebert. Although the Respondent asserts that it informed Saltzburger that his behavior was unac- ceptable, the record contains no documentary evidence of discipline. The record includes evidence of four other incidents involving violations of the zero-tolerance policy. • Sometime during the summer, employee Roose- velt Smith, who did not participate in the strike, told his supervisor that he had weapons in his car and was going to shoot him in the gut and cause the supervisor to “shit in a bag for the rest of his life.” The Respondent suspended Smith, sent se- curity to the supervisor’s house, and discharged Smith 2 weeks’ later. • On October 12, during a disagreement over a work issue, striker replacement Harroun told striker re- placement John Dinkman, “I’m going to take you out back and beat your ass.” Supervisor Everett Orey then interjected, “Hey, that’s enough,” but the Respondent took no other disciplinary action. • Shortly before the strike, on January 13, the Re- spondent discharged employee Mike McGlothen after a fellow employee reported witnessing him cleaning and loading a pistol in one of the Re- spondent’s offices, which caused the employee to feel uncomfortable. A month later, the Respond- ent rehired McGlothen as a striker replacement. 6 The parties spell employee Saltzburger’s name in various ways, and the record does not make clear which spelling is correct. For the purposes of this decision, we will use the same spelling that the judge uses in his decision. 218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD • One to two years before the strike, the Respondent discharged employee Ed Fountain for threatening to go to Human Resources Manager Riley’s office and beat her with a baseball bat. Analysis Under Section 8(a)(3) of the Act, an employer may not discriminate with regard to hire, tenure, or any term or condition of employment in order to encourage or dis- courage membership in a labor organization. To deter- mine whether an adverse employment action was effect- ed for prohibited reasons, the Board applies the analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, to establish unlawful dis- crimination on the basis of union activity, the General Counsel must make an initial showing that antiunion animus was a substantial or motivating factor for the employer’s action by demonstrating that: (1) the em- ployee engaged in union activity; (2) the employer had knowledge of that union activity; and (3) the employer harbored antiunion animus. Amglo Kemlite Laborato- ries, 360 NLRB 319, 325 (2014).7 Proof of animus and discriminatory motivation may be based on direct evi- dence or inferred from circumstantial evidence.8 If the General Counsel makes his initial showing, the burden shifts to the employer to show that it would have taken the same action even in the absence of the employee’s protected activity. Id. With respect to the General Counsel’s initial showing, it is undisputed that Bandy engaged in protected activity by participating in the January–April strike and that the Respondent was aware of that activity. At issue is whether the General Counsel demonstrated that the Re- 7 Our dissenting colleague would find that the General Counsel failed to satisfy Wright Line’s “ultimate inquiry,” i.e., “whether there is a nexus between an employee’s protected activity and the adverse employer action in dispute.” Our colleague explained in St. Bernard Hospital & Health Care Center, 360 NLRB 53, 53 fn. 2 (2013) (H. Johnson, concurring opinion), that although he would not establish a showing of nexus as a fourth element of the General Counsel’s initial burden, he would nonetheless find that such a showing is implicitly required under Wright Line. To the contrary, the Board has repeatedly stated that there is no nexus requirement as part of the Wright Line test. See, e.g., Libertyville Toyota, 360 NLRB 1298, 1301 fn. 10 (2014) (“proving that an employee’s protected activity was a motivating factor in the employer’s action does not require the General Counsel to make some additional showing of particularized motivating animus towards the employee’s own protected activity or to further demonstrate some additional, undefined ‘nexus’ between the employee’s protected activi- ty and the adverse action” (emphasis in original)); Encino Hospital Medical Center, 360 NLRB 335, 336 fn. 6 (2014); Stevens Creek Chrysler Jeep Dodge, 357 NLRB 574, 574 fn. 5 (2011). 8 Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004); Ronin Shipbuilding, 330 NLRB 464, 464 (2000). spondent harbored antiunion animus, thus meeting his initial burden. The judge found that the General Counsel failed to sustain this burden, citing the absence of allegations of independent 8(a)(1) violations and a lack of evidence of statements or conduct by the Respondent that would in- dicate hostility toward the strike or its participants. Con- trary to the judge, however, we find that the record in- cludes both direct evidence of animus and a sound basis for inferring it. The Respondent’s treatment of the returning strikers provides compelling evidence of animus toward the strike and the employees who engaged in it. As set forth above, shortly after the strike ended, the Respondent re- quired the returning strikers, as a condition of returning to work, to promise not to go back on strike over the same dispute. The Respondent further put the strikers on notice that breaking the promise could subject them to discipline or discharge. The Respondent argues that the pledge merely sought assurance that employees would not engage in an illegal intermittent strike by striking again over the exact same issue. However, the Respondent elicited no testimony supporting this assertion, and there is no evidence that it offered that explanation to employees when it required that they make the pledge. Moreover, we note that the strike occurred in the context of contract negotiations and appears to have been a lawful economic strike.9 Because the pledge did not define “the same dispute,” employees could reasonably interpret the promise to encompass all issues related to the ongoing bargaining. Thus, the pledge conditioned the strikers’ return to work on their promise to refrain from lawful protected activity. We find that this pledge constitutes strong evidence of ani- mus toward the protected conduct of striking.10 In addition, the timing of Bandy’s discharge, less than a month after the strike ended, supports an inference that the strike motivated the Respondent to discharge him, even though Bandy played no particularly prominent role 9 The Respondent established a preferential hiring list for recalling the striking employees, thus properly treating them as economic strik- ers. See, e.g., Saginaw Control & Engineering, Inc., 339 NLRB 541, 542 (2003). There is no evidence that the employees had engaged in an intermittent strike or intended to do so in the future. 10 The Board has long held that conditioning employment on prom- ises to refrain from union membership or protected activity is unlawful. See, e.g., Pratt Towers, Inc., 338 NLRB 61, 64 (2002); Penn Tank Lines, 336 NLRB 1066, 1068 (2001); Eddyleon Chocolate Co., 301 NLRB 887, 887 (1991). Because the complaint does not allege that the pledge constituted a separate violation, we do not find one here. How- ever, Chairman Pearce and Member Hirozawa note that had such a violation been alleged, they would find the pledge unlawful. NICHOLS ALUMINUM, LLC 219 in it.11 Moreover, as discussed below, the record shows that the discharge was not consistent with the Respond- ent’s previous application of its disciplinary policy, but instead demonstrated disparate treatment of Bandy’s conduct. Based on the above-direct and circumstantial evidence, we find that the Respondent’s animus toward the recently ended strike motivated the Respondent to discharge Bandy. Having found sufficient evidence of animus to support the General Counsel’s initial burden, we turn to whether the Respondent has established that it would have dis- charged Bandy under its zero-tolerance policy even in the absence of the protected conduct. Contrary to the judge, we find that the Respondent failed to make that showing. It is undisputed that the Respondent has maintained some form of zero-tolerance policy towards workplace violence and harassment since well before the strike. When the strikers returned to work, the Respondent pre- sented them with a detailed statement of the policy. The Respondent maintains that Bandy’s discharge is con- sistent with its practice under the zero-tolerance policy. The Respondent, however, has not demonstrated that Bandy’s termination was in keeping with its enforcement of the policy before or since the strike, and we reject the judge’s conjecture to the contrary. The judge himself found that the Respondent’s enforcement of its policy presents a “mixed bag” of responses to employee mis- conduct, ranging from no discipline at all to immediate discharge. The judge then posited that the Respondent discharges employees who “threaten or harass others with serious physical injury or worse, while threats of physical injury and harassment tend to be overlooked.” Relying on this speculative theory, the judge concluded that the Respondent “reasonably construed” Bandy’s gesture as falling into the former category of threats of serious injury, thus justifying his discharge. We do not agree that the Respondent’s disciplinary history reflects the pattern that the judge discerned. The Respondent permanently discharged two employees— Fountain and Smith—for threatening to physically harm 11 Particularized animus towards Bandy’s protected activity need not be shown. See Encino Hospital Medical Center, 360 NLRB 335, 336 fn. 6, citing Igramo Enterprise, 351 NLRB 1337, 1339 (2007) (unnec- essary for the General Counsel to show particular animus toward dis- charged employee where employer manifested animus towards a group including that employee), petition for review denied 310 Fed. Appx. 452 (2d Cir. 2009). Our dissenting colleague suggests that, absent such particularized animus toward Bandy’s protected activity, the General Counsel must show animus toward the type of protected activity that Bandy engaged in—i.e., striking. Even assuming that were required, we find that the pledge that the Respondent demanded from returning strikers demonstrated such animus. supervisors. Specifically, the Respondent discharged Fountain because he told a manager that he was going to go to her office and beat her with a baseball bat, and it discharged Smith for threatening to shoot a supervisor in the gut with a weapon that he kept in his car. The Re- spondent discharged McGlothen after another employee reported that he was cleaning and loading a pistol in the workplace but rehired McGlothen a month later as a strike replacement in spite of this offense. The Respondent declined to discipline two employ- ees—Harroun and Saltzburger—for threatening and ag- gressive behavior towards other employees. Notably, Harroun, a striker replacement worker, threatened to take a fellow employee “out back and beat [his] ass” but re- ceived no discipline at all. Only a week after Bandy’s discharge, Saltzburger made obscene gestures and re- peatedly shouted profanities at employee Schalk, trailing Schalk out of the building, blocking access to his car in a menacing fashion, and following him back into the facili- ty to continue cursing at him in a loud voice and at close range. In both instances, the Respondent’s supervisors did little more than instruct the individuals involved in the conflict to stop. Furthermore, when Schalk reported Saltzburger’s misconduct, Supervisor McBroom re- sponded dismissively, telling Schalk to “grow up” and threatening to discharge both employees. This evidence demonstrates that the Respondent did not consistently discharge employees, even for relatively severe misconduct like Harroun’s threat of physical harm and Saltzburger’s harassment of Schalk immediately following the end of the strike, i.e., exactly when the Respondent was emphasizing its antiharassment policy. Moreover, the Respondent initially determined that McGlothen’s cleaning and loading of a gun at work was sufficiently severe to warrant discharge, but it later ap- parently deemed his conduct not so egregious as to pre- clude reemployment during the strike. Under the cir- cumstances, we are unable to find that the Respondent has administered its zero-tolerance policy in a consistent manner and that Bandy’s discharge conformed to an es- tablished disciplinary practice. Furthermore, even under the Respondent’s zero- tolerance policy, we are not persuaded that Bandy’s ges- ture would warrant immediate discharge. Although we adopt the judge’s finding that Bandy made the “cut- throat” gesture towards Braafhart, who was sitting in a forklift approximately 10 feet away, there is no evidence that Bandy made any threatening comments or other ges- tures. Further, the judge credited Harroun’s testimony that Bandy’s gesture was commonly used at the facility to indicate to a driver that an engine should be shut off. Moreover, the Respondent’s actions towards Bandy fol- 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lowing the incident belie its contention that Bandy posed an imminent threat of violence toward Braafhart: the Respondent permitted Bandy not only to leave the prem- ises unescorted but also to reenter the facility, again unat- tended, to retrieve his possessions.12 Finally, even as- suming that Bandy’s gesture was intended as a threat, it was similar to, or even less severe than, the threats of bodily harm and menacing harassment that resulted in no disciplinary action or, at most, an undocumented oral warning.13 In sum, we find, contrary to the judge, that the Re- spondent violated Section 8(a)(3) and (1) by discharging Bandy based on his participation in the employees’ law- ful strike. As explained, the Respondent demonstrated animus by the timing of the discharge and by condition- ing strikers’ return on their promise not to strike again. Further, in view of its inconsistent application of the ze- ro-tolerance policy, the Respondent failed to demonstrate that it would have discharged Bandy even in the absence of the protected activity. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging Bruce Bandy on April 27, 2012. 12 By contrast, in response to employee Smith’s threat to shoot his supervisor, the Respondent immediately suspended Smith, removed him from the facility, and sent security to the supervisor’s house. 13 Our dissenting colleague contends that we substitute our judgment for that of the Respondent with regard to Bandy’s discharge. On the contrary, we merely apply the well established burden-shifting analysis of Wright Line. Because we have found that the General Counsel has met his initial Wright Line burden, the Respondent is charged with showing that it would have administered its zero-tolerance policy in the same manner had Bandy not engaged in protected conduct. Thus, our inquiry is not whether the Board would have disciplined Bandy differ- ently, but rather whether the decision to discharge Bandy conformed to the Respondent’s own administration of its policy. As set forth above, we find that it did not. Our dissenting colleague further states that we have “effectively re- vers[ed] the judge’s credibility determination that the employer reason- ably understood the gesture as threatening, in favor of relying on inher- ently contradictory testimony from two other witnesses.” We disagree. The judge credited both Braafhart’s and Harroun’s testimony as to their perception of the incident. The judge then discredited Bandy’s testi- mony that he made no gesture at all and was merely scratching his throat. We find no basis for disturbing those credibility determinations, and we do not reverse them. Rather, we reverse the judge’s legal con- clusion (which, despite the judge’s phrasing, is not based on credibility) that the Respondent reasonably construed Bandy’s gesture as an immi- nent threat. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent unlawfully discharged Bruce Bandy, we shall order the Respondent to offer him full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and to make him whole for any loss of earnings and other benefits suffered as a result of his discharge. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In addition, we shall order the Respondent to compensate Bruce Bandy for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award and to file a report with the Social Security Administra- tion allocating the backpay award to the appropriate cal- endar quarters. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). Finally, we shall order the Respondent to post a notice in accordance with our decision in Durham School Services, 360 NLRB 694 (2014). ORDER The National Labor Relations Board orders that the Respondent, Nichols Aluminum, LLC, Davenport, Iowa, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees for supporting the Union or any other labor organization. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Bruce Bandy full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Bruce Bandy whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of this decision. (c) Compensate Bruce Bandy for the adverse tax con- sequences, if any, of receiving a lump-sum backpay NICHOLS ALUMINUM, LLC 221 award, and file a report with the Social Security Admin- istration allocating the backpay award to the appropriate calendar quarters. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge, and within 3 days thereafter notify Bruce Bandy in writ- ing that this has been done and that the discharge will not be used against him in any way. (e) Preserve and, within 14 days of a request or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its facility at JM Morris Boulevard, Davenport, Iowa, copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to phys- ical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 27, 2012. (g) Within 21 days after service by the Region, file with the Regional Director for Region 25 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. MEMBER JOHNSON, dissenting. Where the employer has proper cause for discharging an employee, the Board may not rely on scant evidence 14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” and repeated inferences to make a finding that places the Board in the position of substituting its own ideas of business management for those of the employer. NLRB v. Blue Bell, Inc., 219 F.2d 796, 798 (5th Cir. 1955). My colleagues here do exactly what the Fifth Circuit years ago said the Board may not do. They rely on scant evidence and inference to put themselves in position to substitute their judgment for the Respondent’s as to what alleged discriminatee Bruce Bandy did and whether it warranted discharge. Abjuring this approach and proper- ly applying Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), I agree with the judge that the General Counsel failed to meet his initial Wright Line burden of proving that animus against protected strike activity motivated the discharge. Accordingly, I respectfully dissent from the majority’s reversal of the judge to find a violation. It is undisputed that Bandy engaged in protected strike activity during contract negotiations and that the Re- spondent was aware of that fact. He was not alone. Al- most all of the Respondent’s 165 employees participated in the strike. There is no evidence that Bandy played any leadership or significant role in the strike or had any run- in with the Respondent during the strike that might sup- port an inference that animus against his particular strike activity caused the Respondent to single him out for re- prisal. His activity during the walkout is indistinguisha- ble from that of the numerous other employees who struck. In addition, there are no allegations of independent 8(a)(1) violations in this case, nor is there evidence of any statements or any conduct by the Respondent demonstrating general hostility towards the strikers. Contrary to my colleagues, I would not find that the Re- spondent’s poststrike requirement of a no-strike pledge fills the animus void. It is undisputed that, when the strike ended, the Respondent asked returning strikers to pledge that they would not strike again over the same dispute that caused the strike that just ended. Bandy was among many returning strikers who agreed to this pledge. The complaint contained no allegation that this conduct was unlawful, the judge did not find the pledge to be unlawful, and the General Counsel does not claim that the judge should have made this finding. Although such no-strike pledges may be unlawful in certain cir- cumstances, they are not unlawful per se. Boehringer Ingelheim Vetmedica, Inc., 350 NLRB 678, 679 (2007). 1 1 My colleagues decide that had it been alleged “they would find” the no-strike pledge unlawful, implicitly likening it to a “yellow-dog” contract that requires complete abandonment of the union or any union activities and which has been prohibited “[e]ven before the passage of 222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In any event, whether requiring this no-strike pledge might have been unlawful is beside the point. There is no apparent connection between the no-strike pledge and Bandy’s discharge. Bandy was not discharged for refus- ing to agree to the pledge. He agreed to the pledge, as did many other returning strikers. Nor was he disci- plined for violating the pledge. Even if the pledge is considered evidence of some general animus on the Re- spondent’s part, that itself would not satisfy the General Counsel’s initial Wright Line burden on the Bandy dis- charge allegation. As I have previously observed, Wright Line is inherently a causation test and “[t]he ultimate inquiry” is whether there is a nexus between an employ- ee’s protected activity and the adverse employer action in dispute. St. Bernard Hospital & Health Care Center, 360 NLRB 53, 53 fn. 2 (2013) (H. Johnson, concurring) (quoting Chevron Mining, Inc. v. NLRB, 684 F.3d 1318, 1327–1328 (D.C. Cir. 2012)). There is no evidence here of any nexus between Bandy’s strike participation and the motivation for his discharge.2 My colleagues’ reliance on the timing of Bandy’s dis- charge only 2 weeks after the strike ended as additional support for inferring discriminatory motive is likewise misplaced. Nothing about the timing of his discharge is suspicious. It was dictated by Bandy’s own action. In meetings after the strike ended, the Respondent reminded all employees, strike replacements and returning strikers, of its existing “Violence in the Workplace” policy that did not tolerate “threatening and/or violent . . . behavior by anyone” and that provided for the possibility of im- mediate termination for such misconduct. Two weeks the Wagner Act.” Eddyleon Chocolate Co., 301 NLRB 887, 887 (1991) (requiring that an employee broadly pledge that employee “will not join a union or be affiliated with unions in any way” unlawful). The prom- ise not to strike “over the same dispute” here does not amount to a yellow-dog contract. The promise in context seems logically limited to ensuring a mutual understanding that the strike was, in fact, over, and also giving assurance against intermittent work stoppages in support of the extant bargaining dispute, a means of protest that is not protected by the Act. This is an eminently sensible precaution for an employer in this situation, not evidence of animus. My colleagues state that the Respondent failed to present evidence in support of this interpretation showing that its officials explained the pledge’s limitations to the for- mer strikers. Why, one wonders, would the Respondent feel com- pelled to produce such evidence when it was not on notice that the unlawfully coercive nature of the pledge was at issue? 2 Thus, in my view, my colleagues and the precedent they cite mis- characterize the General Counsel’s initial Wright Line burden to prove that animus against union or other protected concerted activity motivat- ed an adverse action. The General Counsel may of course meet this burden by proving particularized animus against the employee. The General Counsel may also prove general animus sufficient to warrant the inference that it was a motivational factor against the type of pro- tected activity in which the employee was known or suspected to have engaged. In this case, the General Counsel has failed to meet his bur- den by either showing. later, according to credited testimony, Bandy slowly dragged his clinched fist across his neck with his thumb pointing up in a “cut throat” gesture directed at Keith Braafhart, an employee who did not join the strike. The judge found that gesture was reasonably construed by management as “threatening,” based on Braafhart’s per- ception and description of the incident. The Respondent suspended Bandy the day he made the gesture and dis- charged him 2 days’ later. Thus, the timing of Bandy’s discharge is not suspicious. It simply reflects the Re- spondent’s legitimate and prompt response at the time Bandy made the threatening gesture to Braafhart.3 Finally, my colleagues contend that the Respondent has not applied its zero-tolerance policy consistently and therefore assert the Respondent has not shown it would have discharged Bandy in the absence of his protected activity. I disagree with their starting premise that the General Counsel has satisfied his initial burden by infer- ences drawn from the aforementioned evidence of a no- repeat-strike pledge and timing, thereby shifting to the Respondent the burden to establish its rebuttal defense. On the contrary, the judge correctly reviewed the evi- dence of the alleged inconsistencies in the Respondent’s application of its zero-tolerance policy as one last alter- native basis for inferring discriminatory motivation in support of the General Counsel’s initial Wright Line bur- 3 My colleagues suggest that the innocent, or at least more ambigu- ous, nature of Bandy’s conduct is shown by the credited testimony of coworker witness Sam Harroun that Bandy’s hand gesture resembled a signal commonly used to tell someone to stop or cut off an engine. Harroun opined that Bandy may have been signaling for Braatfarth to stop blowing the horn on the forklift truck he was driving. However, the majority glosses over the fact that Bandy expressly denied that he made any hand gesture in order to signal Braafhart to stop blowing the horn. Harroun testified that, after Braafhart asked if Harroun saw Ban- dy making a threatening gesture, Bandy “come walking by kind of chuckling, said he had—his throat itched.” In Bandy’s own discredited testimony, contradicted by Harroun, he testified that he was “jumping back” from the forklift and may have involuntarily made a hand mo- tion. Importantly, weighing the testimony of all the witnesses, the judge specifically credited Braafhart that he understood Bandy’s ges- ture as threatening. Contrary to my colleagues and consistent with the judge’s analysis, I find Harroun’s testimony that Bandy did make some cutting gesture with his hand partially corroborates Braafthart’s testi- mony and contradicts Bandy’s. My colleagues err by effectively re- versing the judge’s credibility determination that the employer reasona- bly understood the gesture as threatening, in favor of relying on inher- ently contradictory testimony from two other witnesses. My colleagues deny reversing the credibility determination here, and instead character- ize their decision as “revers[ing] the judge’s legal conclusion” (italics in original). But, even if they are correct, my colleagues still err. The judge found that Bandy “gradually swung his right hand diagonally across his neck with the thumb pointing up.” By reversing the judge’s conclusion that this gesture could reasonably be construed as threaten- ing, my colleagues unfortunately and improperly substitute their busi- ness judgment for the Respondent’s. NICHOLS ALUMINUM, LLC 223 den. This judge found the evidence insufficient to meet that burden, and so do I. The evidence of discipline, or lack of discipline, for conduct arguably subject to the zero-tolerance policy is limited to two prestrike incidents and three poststrike incidents. At most, this evidence demonstrates arguable inconsistency in application of the policy, but falls far short of proving disparate treatment of Bandy for partici- pating in the strike or because he made his threatening gesture to a nonstriker. Both before and after the strike, the Respondent has enforced its policy by discharging employees for violations. Of the two employees dis- charged for violating the policy poststrike for making what the Respondent viewed as serious physical threats, Bandy was a former striker but Roosevelt Smith was not. In order to find disparate treatment from this evidence, my colleagues implicitly rely on their own sanitized, discredited version of Bandy’s gesture and make their own assessment that discharge for this redefined conduct was improperly severe because lesser or no penalties were assessed against employees in two instances which they judge to be as or more egregious. This analysis, of course, is not the Board’s legitimate role. It is well recognized that “[t]he Board does not have authority to regulate all behavior in the workplace and it cannot function as a ubiquitous ‘personnel manager,’ supplanting its judgment . . . for those of an employer.” Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095, 1105 (D.C. Cir. 2001). Detroit Paneling Sys- tems, 330 NLRB 1170, 1171 fn. 6 (2000) (Board “cannot substitute its judgment for that of the employer and de- cide what constitutes appropriate discipline”). “In short, an employer has the right to discharge an employee for any reason, whether it is just or not, and whether it is reasonable or not, as long as the discharge is not, in part, in retaliation for union activities or support. The question of proper discipline of an employee is a matter left to the discretion of the employer.” Tama Meat Packing Corp., 230 NLRB 116, 126 (1977). “The Board is limited to determining whether there was a discriminative motive behind an employee’s discharge and not whether the Board agrees with an employer’s reasons or even finds them reasonable.” Id. See also Borin Packaging Co., 208 NLRB 280, 281 (1974) (“[absent] a showing of anti- union motivation, an employer may discharge an em- ployee for a good reason, a bad reason, or no reason at all. Whether other persons would consider the reasons assigned for a discharge to be justified or fair is not the test of legality under Section 8(a)(3).”) (emphasis add- ed); Neptco, Inc., 346 NLRB 18, 19 (2005) (same); Great Plains Beef Co., 241 NLRB 948, 964 (1979) (“mere fact an employer may act unreasonably does not prove it acted discriminatorily”). In sum, I find my colleagues have relied on scant evi- dence and unsupported inferences to find that the Gen- eral Counsel has met the initial Wright Line burden of proving unlawful motivation for Bandy’s discharge. They compound their analytical error by impermissibly substituting their own view of what conduct warrants discipline under the Respondent’s established zero- tolerance policy. Unlike them, I would find that the General Counsel has failed to meet his initial Wright Line burden. I would affirm the judge’s finding that the Respondent lawfully discharged Bandy for making a threatening gesture to another employee in violation of the Respondent’s zero-tolerance policy, and I would adopt the judge’s recommendation to dismiss the com- plaint. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge or otherwise discriminate against any of you for supporting Teamsters Local Union No. 371 or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Bruce Bandy full reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Bruce Bandy whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL compensate Bruce Bandy for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file a report with the Social Security 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Administration allocating the backpay award to the ap- propriate calendar quarters. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Bruce Bandy, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. NICHOLS ALUMINUM, LLC The Board’s decision can be found at www.nlrb.gov/case/25-CA-082690 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. Ahavaha Pyrtel, Esq., for the General Counsel. Michael A. Snapper and Keith J. Brodie, Esqs. (Barnes & Thornburg LLP), for the Respondent. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Peoria, Illinois, on January 24, 2013. Teamsters Local Union No. 371 (the Union) filed the charge on June 8, 2012, and the General Counsel issued the complaint on October 25, 2012.1 The complaint alleges that Nicholas Aluminum, LLC (the Company) violated Section 8(a)(3) of the National Labor Relations Act (the Act) by discharging Bruce Bandy on April 27 because he engaged in union activity in support of Teamsters Local Union No. 371 (the Union). The Company denies the allegations and asserts that Bruce Bandy was dis- charged because he threatened another employee with serious physical injury in violation of company rules. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Company, I make the following FINDINGS OF FACT I. JURISDICTION The Company, a limited liability company, has been engaged in the manufacture and sale of aluminum at its facilities in Dav- enport, Iowa, where it annually sells and ships goods valued in 1 Unless otherwise stated, all dates refer to 2012. excess of $50,000 directly to points outside the State of Iowa. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Company’s Operations The company has two plants—the casting plant (NAC) and the finishing plant (NAD). Between the two facilities, the Company processes convert scrap metal into aluminum sheets for use by the building industry. The plant manager at NAC at the relevant times was Bill Hebert. The plant manager at NAD at the relevant times was Celal Tekell. There are approximately 165 employees in the casting plant working in about 24 different job classifications and 9 depart- ments: receiving, shredding, blending, melding, hot mill, caster, maintenance, shipping, and rotary barrel furnace. Bruce Bandy was employed by the Company since February 2, 1978, and was a longtime member of the Union. For the past 15 to 20 years, he has worked as a blending operator. His duties include adjusting the chemistry and maintaining control of the alloys in the melders and holders. Bandy worked a 12-hour shift. His immediate supervisor was Blending Supervisor Vick Hansen, who reported to (now former) Plant Manager Hebert. B. Organizing Campaign The Union represented the bargaining unit employees at the Company’s Davenport facilities at all relevant times. The col- lective-bargaining agreement (CBA) between the parties ex- pired in November 2011. During the negotiation of a successor agreement between the Company and the Union, the latter initi- ated a strike at the Davenport facilities which lasted from about January 20 through April 6. Bandy was one of the employees who participated in the strike.2 While the strike was in effect, the Company hired replace- ment workers to perform the work, approximately 100 of whom it eventually hired on a permanent basis on April 4. The Union ended the strike on April 6 and the Company called the striking employees, including Bandy, back to work. As striking workers returned to work, the Company held ori- entation meetings at both NAC and NAD. Participants in these meetings on behalf of the Company included Human Resources Manager Kristy Riley (now former) Vice President of Human Resources Mike Albee, and Hebert. During the meetings, the Company told the employees that they could not return to work unless they promised to not strike again. Bandy was one of the employees who signed such a pledge.3 Thereafter, the Union intervened and prevented the Company from getting additional written pledges, but the Company received verbal assurances from the employees that they would not engage in a strike again. Employees were also reminded of the Company’s no- 2 Aside from the fact that Bandy went on strike, there was no evi- dence that he was engaged in any unusual, strategic, or significant role during the walkout period. (Tr. 26, 35.) 3 GC Exh. 3. NICHOLS ALUMINUM, LLC 225 tolerance policy on harassment, intimidation and physical threats.4 C. “No Tolerance Policy” and Its Past Enforcement 1. Content of the policy The Company has policies against violence and harassment in the workplace.5 The agreement between the Company and the Union provides that the commission of certain violations by employees—listed under “Group 1” violations—may lead to discharge without a notice. One of these violations is “Assault on any employee: Violation of the Company’s policy on Work- place Violence and Threats.”6 2. Incident involving Craig Saltzburger On or around May 4, Robert Schalk, a returning company employee who participated in the 2012 strike, was waiting in line to punch out and speaking with fellow employee Darren Schnowski. At this time, replacement worker Craig Saltzburger, without any apparent provocation began screaming at Schalk, “What the fuck are you looking at? You got a fuck- ing problem?” while grabbing himself on the crotch. Schalk ignored Saltzburger and walked out, but Saltzburger followed Schalk outside, stepping in front him and asking Schalk if he thought Saltzburger was “pretty” and what his “fucking prob- lem” was. Schalk asked Saltzburger to get away from him and attempted to get to his car, but Saltzburger stepped in front of Schalk again and asked, “You got a fucking problem? What are you looking at?” At this point, Schalk told Saltzburger that they should go upstairs and report the confrontation. Saltzburger seemed to agree: “That would be fucking fine, let’s fucking do it.” As they returned to the facility, Schalk saw Supervisor Phil McBroom and called him over. Schalk described what hap- pened, while Saltzburger continued hurling invectives: “You got a fucking problem? What are you looking at?” In response to Schalk’s report, McBroom asked Schalk, “What the fuck do you want me to do about it?” Schalk told him that he thought he was supposed to report such apparent violations of the no- 4 Although the assurances were not given in writing, the Union does not contest the applicability of the Company’s policy as contained in the expired CBA. (Tr. 82–84, 100–102; R. Exh. 3.) 5 The Company offered substantive details as to its policy regarding violence in the workplace. One of the slides shown during the post- strike orientation meetings in 2012 related to “safety” and provided assurances that it was continually taking steps to reduce the negative effects of “injuries.” (R. Exh. 3.) The slide generally states that em- ployees “follow all safety requirements,” although no information was offered as to the substantive content of those requirements, and the words “violence” or “threats” were not mentioned. Another slide titled “Company Violence in the Workplace Statement” informed employees that “[h]arassing disruptive, threatening, and/or violent situations or behavior by anyone, regardless of status, will not be tolerated and sub- ject to discharge for the first offense.” (R. Exh. 3.) A notice stating the same was placed on the Company’s bulletin sometime after the strike. (R. Exh. 4; Tr. 172–173.) Another document defined “Prohibited Con- duct” to include, among other things, “[p]ossession of firearm, knife with a blade greater than three inches or any weapon while on Compa- ny property or while on company business” and “[a]ggressive or hostile behavior that creates a reasonable fear of injury to another person. . . .” 6 R. Exh. 5. tolerance policy. McBroom told Schalk that he “should fucking grow up,” and that if Schalk wanted him to do anything, he would fire both employees. Schalk left. Later, Shalk called and left a message for Riley, the human resources manager. In the message, Schalk detailed Saltzburger’s harassing behavior and McBroom’s inaction. The call was not returned and, later that afternoon, Schalk called Hebert and left a message. Hebert returned the call a short while later, promised that the Company would look into it and launch an investigation. A few days later, Schalk met with Ri- ley and Mike Belk, a union steward. At the end of the meeting, Riley told Schalk “that when there is more than one employee involved, you never get the full story.” She did, however, promise Schalk that she would look into the matter. Schalk never heard back.7 In August, Schalk emailed Plant Manager Brian Wolfe as- serting that, by threatening to discharge Schalk for reporting the Saltzburger incident, McBroom engaged in threatening, harass- ing, and intimidating behavior in violation of the Company’s zero-tolerance policy. Schalk previously expressed this concern to Wolfe. Wolfe took no action.8 3. Incident involving John Dinkman and Sam Harroun Christopher James was a caster assistant at NAC since Au- gust 2007 who participated in the 2012 strike as a picket line patrol. On October 12, within a week of returning, he attended a staff meeting. Others present included Supervisor Everett Orey, melding operator Sam Harroun, and caster assistants John Dinkman and Aaron Ellenberg. Harroun, Dinkman, and Ellenberg were all replacement workers. During the meeting, Harroun said to Dinkman that it was the caster assistants’ fault that the “holder” was too hot. Dinkman disagreed and said he never told the caster assistants to watch the temperature. Orey told the employees to stop blaming each other. Harroun then turned to Dinkman and said, “I’m going to take you out back and beat your ass.” After exchanging additional comments, Orey concluded by saying, “Hey, that’s enough.” No discipli- nary action was taken in response to Harroun’s comment.9 4. Incident involving Mike McGlothen On December 20, 2011, electrician Mike Cook reported see- ing NAD mechanic Mike McGlothen cleaning and loading a pistol in an office at NAD. This made Cook uncomfortable, prompting him to report the incident to Mike Albee. After in- vestigation of the incident, McGlothen was terminated on Janu- ary 13 for violating the Company’s rule: “Assault on any em- ployee. Violation of the Company’s policy on Workplace Vio- lence and Threats.” However, the Company rehired him during the strike the following month.10 7 These findings are based on Schalk’s credible and unrefuted testi- mony. (Tr. 84–88.) 8 GC Exh. 14. 9 These findings are based on James’ credible testimony. (Tr. 103– 110.) 10 Aside from Cook’s reaction, there is no evidence that McGlothen was attempting to harass, intimidate, or injure anyone. (GC Exh. 4; Tr. 30, 186–187.) 226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5. Incident involving Roosevelt Smith During the summer of 2012, former employee Roosevelt Smith told his supervisor, Jim Hays, that he had weapons in his car and was going to shoot him “in the gut,” causing Hays to “shit in a bag for the rest of his life.” The Company suspended Smith for 2 weeks before discharging him.11 6. Incident involving Ed Fountain One to 2 years prior to the 2012 strike, Ed Fountain, a maintenance employee, called Riley and threatened to go to her office and beat her with a baseball bat. He was fired sometime after this incident.12 D. Events of April 25, 2012 Keith Braafhart has been employed by the Company since 1995. He primarily worked at NAD, but also worked at NAC as needed. During the 2012 strike, Braafhart was one of the em- ployees who crossed the picket line. Since that time, he has worked as a melding utility employee at NAC. On April 25, Braafhart was operating a forklift truck and moving toward melder 3. As he approached one of the intersec- tions, Bandy walked out of the melding back room, coming to the right side of Braafhart. Braafhart honked a few times and slowed down. At that time, Bandy looked toward Braafhart and gradually swung his right hand diagonally across his neck with the thumb pointing up. Braafhart construed Bandy’s gesture as a threat.13 Braafhart saw Sam Harroun and asked him if the latter witnessed the incident. Harroun stated that he saw the gesture as a request to Braafhart to stop blowing the horn.14 Braafhart parked the truck and went to report the incident to the human resources department. He later met with Albee, Han- sen and Hebert as they took notes, and asked Braafhart not to speak with anyone about the incident after leaving. Manage- ment also interviewed Harroun later that day. He described Bandy’s hand gesture and opined that it resembled a gesture where one person tells another to shut off the vehicle’s en- gine.15 Shortly thereafter, Bandy was called to the office and sus- pended. On April 27, Riley called Bandy to inform him that he was discharged. 11 This finding is based on Hebert’s credible testimony. (Tr. 162– 163.) 12 This finding is based on Riley’s credible testimony. (Tr. 158, 164.) 13 I credit Braafhart’s testimony that he did not reasonably construe Bandy’s gesture as a request to cut off the machine, but rather, as a cut throat gesture. His reenactment revealed a gradual, and not rapid, movement of Bandy’s arm, thus ruling out involuntary movement. (Tr. 129, 134–136.) Bandy’s explanation and reenactment, on the other hand, were inconsistent and incredible. He described numerous near accidents involving moving equipment and how he tends to respond by lurching backwards and involuntarily moving his right hand in a diago- nal motion across his chest. Instead, when confronted about the gesture by Braafhart, he told him he was scratching his throat. (Tr. 48–56, 71– 74.) 14 Contrary to his comments to Braafhart that Bandy was signaling to stop blaring the horn, Harroun testified that Bandy walked by chuckling and said that his throat itched. (Tr. 139–140; R. Exh. 1.) 15 This finding is based on Harroun’s credible testimony. (Tr. 140, 144–146; R. Exh. 2.) Legal Analysis The General Counsel contends that the Company violated Section 8(a)(3) by discharging Bruce Bandy on April 27 be- cause he supported the Union by going out on strike the follow- ing year. The Company denies the allegations and asserts that Bandy was discharged because he threatened another employee with serious physical injury in violation of its no-tolerance for violence or harassment policy. The 8(a)(3) allegations are analyzed under the Wright Line framework, which requires the General Counsel to make a pri- ma facie showing of sufficient proof to support the inference that protected conduct was a motivating factor in the employ- er’s decision, 251 NLRB 1083, 1089 (1980). To meet this bur- den, the General Counsel must establish that the employee engaged in protected activity, and that the employer had knowledge of the protected activity, and took adverse action against the employee as a result of this protected activity. American Gardens Management Co., 338 NLRB 644, 645 (2002). Once the General Counsel has proven these elements, the burden shifts to the employer to demonstrate that it would have taken the same action even in the absence of protected conduct. Manno Electric, Inc., 321 NLRB 278, 281 (1996). If the evidence establishes that the reasons given for the discharge are pretextual, either in that they are false or not relied on, the employer has failed to show that it would have taken the same action absent the protected conduct, and there is no need to perform the second part of the Wright Line analysis. Golden State Foods Corp., 340 NLRB 382, 385 (2003). It is undisputed that the Company knew that Bandy, a bar- gaining unit member, engaged in protected concerted activity by participating in a union-sponsored strike in 2012. I also found that, after returning to work, he made a threatening ges- ture to an employee who did not go out on strike. Whether Bandy’s discharge after returning from the strike was due to his protected activity, however, is heavily disputed. The General Counsel contends that his strike participation alone provides sufficient circumstantial proof upon which to predicate animus, while the Company argues that Bandy was one of many who went on strike and returned to work, almost all without inci- dent. Simply participating in a union-sponsored strike along with many others and being discharged for misconduct at some point after returning to work is not enough to demonstrate antiunion animus. More evidence is required, whether in the form of in- dependent 8(a)(1) violations, hostile remarks, or actions by supervisors regarding protected concerted activities, or dispar- ate treatment in the enforcement of an employer’s rules. See Airo Die Casting, Inc., 354 NLRB 92, 131 (2009) (no evidence of antiunion animus simply because employer delayed reinstat- ing two former strikers, where the decision was based on sen- iority, they were part of a group of 300 strikers, were not par- ticularly active or outspoken union supporters or engaged in any other protected activities that would cause employer to single them out from among the returning strikers for discrimi- natory treatment); Detroit Newspaper Agency v. NLRB, 435 F.3d 302 (D.C. Cir. 2006) (discharging former striker for in- subordination, without more, did not establish antiunion ani- mus); Florida Steel Corp. v. NLRB, 529 F.2d 1225, 1234 (5th NICHOLS ALUMINUM, LLC 227 Cir. 1976) (union membership cannot protect clear insubordina- tion where employer’s discipline was not motivated by anti- union animus). Cf. NLRB v. Transportation Management Corp., 462 U.S. 393 (1983) (employer displayed antiunion animus when it discharged employee who attempted to estab- lish a union for work infractions because the employer had not followed its customary practice of issuing written warnings before discharge); Southwest Merchandising Corp. v. NLRB, 53 F.3d 1334 (D.C. Cir. 1995) (animus where employer consid- ered striking employees’ participation in a strike as a factor in making its decisions to hire after the strike and treated nonstrik- ing applicants preferentially); Outboard Marine Corp.- Calhoun, 307 NLRB 1333, 1368–1369 (1992) (employer un- lawfully retaliated against strikers by delaying their recall, denying promotional opportunities, misclassifying their posi- tions, subjecting them to more onerous working conditions, and applying other disparate treatment). Here, there is no background of independent 8(a)(1) viola- tions during the period after the strike and up to the time of Bandy’s discharge. Nor is there any evidence of hostile remarks or actions by the employer since the strike concluded and em- ployees returned to work. We do have an evidentiary sampling, however, of other employee-on-employee confrontations within the Company’s workplace revealing instances in which it either did or did not enforce its policy against violence and harass- ment. When the charging party attempts to show antiunion animus by alleging that the employer discharged an employee based on an action which the employer treated more leniently in the past, the employer can rebut the claim by presenting evidence that it treated similar behavior in a similar manner. See NLRB v. Hos- pital San Pablo, Inc., 207 F.3d 67, 73 (1st Cir. 2000) (employer displayed antiunion animus by discharging an employee, who engaged in union activities, based on an infraction that a nonun- ion employee also committed in the past without enduring simi- lar punishment). The record presents a mixed bag of company responses to employee-on-employee confrontations within the relatively recent past. The Company previously discharged three employ- ees for violating its no-tolerance policy. Two employees, Foun- tain and Smith, explicitly threatened to cause serious physical injury to coworkers via shooting with a gun or beating with a baseball bat. Another employee, McGlothen, brought a gun to work and, although there is no evidence that he cleaned and loaded it in an open work setting, was discharged in accordance with the no-tolerance policy. The section cited—assault—was a plausible conclusion based on a fear that the incident created. McGlothen was rehired a month later as the Company brought in replacement workers during the strike. However, that subse- quent development was driven by the Company’s desire to hire replacement workers and, without more, does not undermine the legitimacy of the Company’s earlier discharge. On the other hand, the Company took no disciplinary action against two employees who engaged in other conduct tanta- mount to threats of violence or harassment. In one instance, Harroun told another employee that, essentially, he was going to beat him up. The statement was made in front of a supervi- sor, who resolved the matter at that time. In another instance, Saltzburger, a replacement worker, har- assed Shalk, a coworker who had gone out on strike. The cir- cumstances leading up to the confrontation are slim, but some- thing obviously transpired, leading Saltzburger to harass Shalk numerous times on 1 day. The harassment consisted of an in- vective-laced inquiry as to what problem Shalk had with him. The two of them then went to a supervisor, where Saltzburger continued his barrage. The supervisor did nothing, except warn Shalk to grow up. Similarly, human resources officials also did nothing after the matter was reported to them. This situation presents a close call. The record contains two discharges based on threats to cause serious injury or worse, and one discharge, labeled an assault, for cleaning and loading a gun at work. In two instances, the Company did not discipline employees who harassed or threatened coworkers. The harass- ment situation did not suggest that it would be followed by violence, while the threat as to kicking a coworker’s rear end referred, at most, to a physical injury. In Bandy’s case, he made a gesture by simulating the cutting of his throat that the Com- pany reasonably construed as a threat of serious physical injury or death. When considered together, the record evidence indicates a tendency by the Company to enforce the no-tolerance policy against employees who threaten or harass others with serious physical injury or worse, while threats of physical injury and harassment tend to be overlooked. Under the circumstances, these previous instances do not establish by the preponderance of the evidence that the Company engaged in the disparate treatment of Bandy by discharging him for threatening another employee with serious physical injury or worse. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce with- in the meaning of Section 2(2), (6), and (7) of the Act and the Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Company has not violated the Act as alleged. [Recommended Order for dismissal omitted from publica- tion.]