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