When Does a Threatening Gesture Get You Fired? NLRB and Court Disagree on This

 
In a strike at an aluminum plant, a striker made a threatening gesture to a co-worker by drawing his thumb across his throat and staring at the non-striking worker. The NLRB ruled that this conduct did not rise to a level to warrant termination, but the Eighth Circuit Court of Appeals reversed. "Employers retain the right to discharge workers for any number of other reasons unrelated to the employee's union activity," Circuit Judge William Riley wrote, joined by Circuit Judge Michael Melloy…. I get that, completely— but if you take out the union part of the story, it seems like the employer would not have been so harsh. If this is true, then firing the not-so-smart striker was “pretextual” and not for a legitimate business reason. See here: http://www.law360.com/articles/568807/nlrb-faults-aluminum-co-for-firing-cut-throat-worker .