Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In Local 702, International Brotherhood of Electrical Workers, AFL-CIO v. National Labor Relations Board and Consolidated Communications, the U.S. Court of Appeals for the Seventh Circuit recently upheld the termination of a long-term employee for egregious strike-related misconduct. As the second federal appellate court to consider the case in its complex history, the Seventh Circuit affirmed a National Labor Relations Board decision that tried to draw a line between protected strike activity and misconduct that warrants discipline or discharge.
In 2012, negotiations between Consolidated Communications (Consolidated) and the IBEW (Union) failed to produce an agreement. The Union ordered a strike. Pat Hudson, a long-term employee of Consolidated and a Union member, participated in the strike. On December 10, 2012, Hudson was driving toward company headquarters to participate in picketing when she saw a company truck on Route 16. She followed the truck while another striking employee, Brenda Weaver, followed in a second vehicle. When they caught the vehicle, Weaver pulled in front of it in the right lane, and Hudson pulled alongside it in the left lane. Then Hudson accelerated and drove alongside Weaver who was in front of the truck. Because traffic was building up behind them, Hudson pulled in front of Weaver to allow cars to pass, at which point the Consolidated truck also switched lanes to attempt to pass Hudson and Weaver. Before the truck could pass them, however, Hudson changed lanes and intentionally blocked the Consolidated truck from passing. The Consolidated truck then returned to the right lane, behind Weaver, where it remained for a mile before leaving Route 16 to avoid further interaction. The entire incident occurred at highway speeds.
The strike ended on December 13, 2012. The company suspended Hudson pending an investigation of her conduct. Consolidated terminated her employment on December 17, 2012, for the dangerous vehicular activity described above.
The Union filed an unfair labor practice charge alleging that Consolidated had terminated Hudson’s employment for conduct that was protected by the National Labor Relations Act (Act). After a hearing, an administrative law judge found that Hudson’s conduct on the highway was not egregious enough to warrant termination.1
The Board adopted the administrative law judge’s findings and conclusions with respect to Hudson. Consolidated filed a petition for review with the U.S. Court of Appeals for the D.C. Circuit. The Board cross-petitioned for enforcement and the Union intervened.
The D.C. Circuit disagreed with the Board’s analysis of the highway incident, remanded the case and instructed the Board to consider not only the absence of violence but all circumstances surrounding the incident, including its objective impact on reasonable non-striking employees. The D.C. Circuit Court found that the Board’s decision had misapplied the standard for assessing strike misconduct set forth in Clear Pine Mouldings, 268 NLRB 1044 (1984), and Burnup & Sims, 379 U.S. 21 (1964):
The Board decision stressed the “absence of violence.” . . . . But that asked the wrong question. The legal test to be applied is straightforwardly whether the striker’s conduct, taken in context, reasonably tended to intimidate or coerce any nonstrikers. . . . While violence or its absence can be relevant factors in that reasonableness analysis, the Board had to take the next analytical step. It had to consider, consistent with precedent, all of the relevant circumstances, and evaluate the objective impact on a reasonable non-striker of misconduct committed on a high-speed public roadway with third-party vehicles present.2
The D.C. Circuit also found that the Board had improperly shifted the burden of proof from the General Counsel to the employer when it held that any ambiguity about the seriousness of Hudson’s conduct should be resolved against Consolidated. To the contrary, the court held that because the General Counsel had the overall burden of proof, any such ambiguity should be resolved in favor of the employer.3
Second Board Decision
Five years after its original decision and with a majority of its members appointed by a new administration, the Board held that Hudson’s termination was justified because she had engaged in misconduct that would tend to coerce non-strikers in the exercise of their own Section 7 rights not to engage in strike-related activity. The Board reasoned,
Nothing in our statute gives a striking employee the right to maneuver a vehicle at high speed on a public highway in order to impede or block the progress of a vehicle driven by a nonstriker, even if the maneuver is executed at or below the speed limit. Indeed, the Board has repeatedly held that the conduct of strikers blocking or impeding nonstrikers in vehicles proceeding (presumably at much lesser speeds) into or out of a company entrance is unprotected or, if attributable to a union, unlawfully coercive.
In short, if pickets do not have the right to block the entrances and exits to the employer’s property in a stationary strike situation, they likewise do not have the right to block nonstrikers’ vehicles on the highway.
The Board explained:
By these actions, Hudson sent a clear message to [nonstrikers] that she was intentionally using her vehicle to obstruct or impede their passage. In other words, her actions would not only reasonably be viewed as intimidating, they were calculated to intimidate and cannot possibly be excused as some momentary emotional response in the context of a strike's heightened tensions…Any employees would reasonably fear that Hudson's next maneuver could cause a collision that would jeopardize their lives or the lives of other motorists on the highway.4
It appears, therefore, that causing reasonable nonstrikers to fear for their safety in a genuinely dangerous situation will be considered by both the Board and the courts as a key factor that can cause strikers to lose the protection of the Act.
Seventh Circuit Affirms
On appeal, the Union argued that the Board’s decision was not based on substantial evidence where the subject incident was brief, lasting only a moment or two, that neither driver was in any danger, the conduct did not meaningfully impede the driver's progress, and that Hudson did not intend to impede or intimidate but only follow so she could set up an ambulatory picket at the job site. The Seventh Circuit disagreed, concluding that Hudson’s purposeful driving tactics demonstrated a “thorough plan” to impede the truck’s progress, only relenting when the driver pulled off the highway. Such conduct was not so-called “animal exuberance” that the Board excuses.5
This decision reminds employers, particularly those employing drivers, that when employees take Section 7 activity to the road, whether such activity is protected by the Act is measured under the totality of circumstances including the reasonable reactions of nonstrikers. Employers should consider updating their strike plans to address over-the-road picket activity directly and to instruct supervisors about how to handle such situations.
1 See Consolidated Communications, 360 NLRB No. 140 (2014) (“If [Hudson] engaged in misconduct with regard to [the highway incident], by preventing [the Consolidated driver] from passing her,” he wrote, “even if this was for 1-1/2 minutes and for 1-1/2 miles, this conduct was not egregious enough to warrant her termination, particularly in light of the fact that she was a 39-year employee with no prior disciplinary record. . . . Even assuming some degree of misconduct by Hudson in the [highway] incident, any ambiguity as to whether it was serious enough to forfeit the protection of the Act should be resolved against Respondent.”)
2 Consolidated Communications, Inc. v. National Labor Relations Board, 837 F.3d 1, 18 (D.C. Cir. 2016) (Citations omitted; internal quotations omitted).
3 Id. at 19.
4 Consolidated, 367 N.L.R.B. No. 7, *4. (Emphasis in original)
5 Electrical Workers, 2019 BL 296842 at *4, citing Advance Indus. Div. Overhead Door Corp. v. N.L.R.B., 540 F.2d 878 , 882 (7th Cir. 1976) ("Trivial rough incidents or moments of animal exuberance must be distinguished from misconduct so violent or of such a serious character as to render the employee unfit for further service.").