Skip to main content

NLRB: Strike Related Misconduct on Public Roadway Severe Enough to Lose NLRA Protections


Consolidated Communications d/b/a Illinois Consolidated Telephone Company - NLRB


Facts:  In 2012, in support of union bargaining demands, Patricia Hudson ("Hudson") along with another striker, Brenda Weaver ("Weaver"), were driving in separate cars on a four lane, public road.  They noticed a company truck ahead of them.  (The truck was driven by nonstrikers).  Hudson and Weaver apparently decided to follow the truck to see if lead to a worksite where their union could also picket.  Once Hudson and Weaver caught up to the company truck, Weaver used the left lane to pass both Hudson and the truck, and then merged back into the right lane in front of the truck.  Hudson used the left lane to pass the truck but remained in the left lane.  In doing so, Hudson and Weaver both prevented other cars from passing.  Once cars started to back up behind Hudson, she merged into the right lane ahead of Weaver and let the cars pass.  When the company truck tried to also use the left lane to pass along with the other cars, Hudson returned to the left lane, drove alongside Weaver, and blocked further traffic from passing.  The company truck had to return to the right lane and followed along behind Hudson and Weaver for a mile until taking an exit and a different route to the worksite.

In 2014, the National Labor Relations Board ("NLRB") adopted an Administrative Law Judge's decision and found, in part, that Consolidated Communications d/b/a Illinois Consolidated Telephone Company ("Consolidated") violated the National Labor Relations Act ("NLRA") when it terminated Hudson and Weaver for their strike related activity.  Consolidated petitioned the United States Court of Appeals for the District of Columbia Circuit for review.  In 2016, the Court of Appeals denied enforcement of the NLRB's order in regard to Hudson's discharge and remanded the case to the NLRB to apply the Clear Pine Mouldings analysis and determine whether Hudson's strike related conduct "reasonably tended to intimidate or coerce nonstrikers."

Finding:  On remand, the three panel NLRB noted at the outset that nothing in the NLRA gave 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.  In fact, the NLRB has repeatedly held that the conduct of strikers blocking or impeding nonstrikers in vehicles proceeding into or out of a company's entrance is unprotected or if attributable to a union, unlawfully coercive.  Consequently, the NLRB found no reason why this result should be any different for blocking or impeding nonstrikers on a public highway.

While Hudson's actions could otherwise be found to be protected activity, the NLRB pointed out that the totality of circumstances in this case led to a finding that Hudson's actions lost the NLRA's protections because of her serious misconduct.  When confronted with the ultimate issue in this case, the NLRB pointed out that Hudson's actions "would reasonably tend to coerce or intimidate employees in the exercise of Section 7 rights, including the right to refrain from striking."  The NLRB was quick to point out that its finding in this case was consistent with a similar Fourth Circuit Court of Appeals case, Oneita Knitting Mills, Inc. v. NLRB.  In Oneita, the Court of Appeals held that an employer could lawfully deny reinstatement to strikers that slowly drove their car in front of a nonstriker in a manner to prevent the nonstriker from passing because (1) the misconduct "was calculated to intimidate," and (2) "obstruction of the public highway" was "inherently dangerous". 

Decision:  On remand, a divided three member NLRB panel found that the NLRA protected right to strike does not confer immunity on a striking employee that engages in high-speed maneuvering on a public highway in a manner that interferes with other vehicles and puts targeted nonstrikers as well as innocent third party drivers in fear.

The Takeaway:  Every so often I come across an interesting NLRB decision that highlights a rather nuanced labor topic.  This particular matter was of particular interest, do in part to the fact that it was on remand from the Court of Appeals.  The finding by Board Members Ring and Kaplan seemed to be on the mark, given the application of the Clear Pine Mouldings analysis and reference to the Fourth Circuit Court of Appeals decision in Oneita.  It is not a stretch to find that the actions of Hudson and Weaver would/could coerce or intimidate other Consolidated employees from exercising their Section 7 rights.  If it were me driving or riding in the company truck and Hudson and Weaver started to execute moves to block traffic, box me in, and keep me from passing them, it is not a stretch to say that I would find this conduct to be intimidating or threatening.  Couple that conduct with the fact that the company truck, Hudson, and Weaver were all driving along between 45 - 55 miles per hour.  This is not a slow cruise through a neighborhood.  Rather, this is a rather tense and high speed drive along a four lane road with other cars attempting to maneuver around Hudson and Weaver's obstacles.

Date:  October 2, 2018

Decision:  http://hr.cch.com/ELD/ConsolidatedCommunications100218.pdf

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per
Post a Comment
Read more