D.C. Cir. Puts Brakes on NLRB Ruling on Striker Highway Misconduct

By Lawrence E. Dubé

Sept. 13 — The NLRB must revisit its finding that a telephone company illegally discharged a striking worker for harassing a nonstriker on a public highway, the U.S. Court of Appeals for the District of Columbia held Sept. 13 ( Consolidated Commc’ns, Inc. , 2016 BL 297488, D.C. Cir., No. 14-1135, 9/13/16 ).

The D.C. Circuit agreed generally with the National Labor Relations Board’s approach to striker misconduct cases, but the court expressed skepticism about the board’s application of agency precedents in this case.

Writing for the court, Judge Patricia A. Millett agreed that Patricia Hudson’s erratic driving three miles away from a union picket line had to be considered strike-related. However, the NLRB failed to adequately consider the intimidating effect on the nonstriker and the presence of other motorists, she said.

The court remanded the allegation to the NLRB for reconsideration of its finding that Consolidated Communications Inc. unlawfully fired Hudson for strike-related conduct.

Striker Misconduct Allegations

The case involved Consolidated’s discipline of several employees after a one-week strike by members of Electrical Workers IBEW Local 702.

After investigating allegations against four of the employees, Consolidated suspended two of the workers and discharged two.

The NLRB found that the misconduct attributed to the suspended workers was not serious enough to justify discharging them for strike-related conduct, and the D.C. Circuit upheld the board’s decision on those workers.

However, the board found that the employer’s firing of Hudson was unlawful.

Striking Worker Fired After Highway Encounter

Hudson was accused by the company of using her car to block or impede the path of several nonstrikers, but Millett said the board had substantial evidence to support its conclusions that neither incident was serious enough to support the disciplinary action.

However, in a third incident, the court found that the striker’s behavior was more serious.

In that incident, Consolidated manager Troy Conley was driving a Consolidated truck with one passenger on a four-lane state highway when two strikers—Brenda Weaver and Hudson—passed the company vehicle in separate cars.

According to the company’s testimony, Weaver occupied the right-hand lane in front of the Consolidated truck and Hudson took up a position in the left lane ahead of the company vehicle. Hudson pulled to the right to let other cars pass, but she pulled back out in front of the Consolidated truck when it attempted to pass her.

Conley turned off the highway and testified he felt “very harassed” by the on-road incident. Consolidated fired both strikers but settled a dispute over Weaver’s termination.

Court Calls for NLRB to Take Closer Look

The NLRB found that Hudson’s discharge was unlawful, but the court was not persuaded. The board stressed the “absence of violence” in the incident, but “that asked the wrong question,” Millett said.

Citing several board decisions, Millett said the legal test to be applied is whether a striker’s conduct, taken in context, would reasonably tend to intimidate or coerce nonstrikers.

The court said the presence or absence of violence can be relevant to assessing strike misconduct, but “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.”

Millett also said the board erroneously held that any ambiguity concerning whether Hudson’s conduct was serious enough to forfeit the protection of the National Labor Relations Act was to be resolved against the company.

“Because the General Counsel bears the burden of proving that the misconduct is shielded by the Act, any ambiguity or equivocation in the evidence” concerning the seriousness of a striker’s actions should have been resolved in favor of the employer, Millett said.

The court remanded the issue of Hudson’s discharge to the board for further consideration.

Judges David S. Tatel and Janice Rogers Brown joined in the opinion.

Hunton & Williams in Richmond, Va., represented Consolidated Communications Inc. Schuchat, Cook & Werner in St. Louis represented Local 702. NLRB attorneys in Washington represented the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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