7th Circuit Upholds Decision to Fire Striking Worker After Dangerous Highway Incident
On August 9, 2019, the 7th Circuit affirmed a National Labor Relations Board (NLRB) finding that an employer lawfully fired a striking worker who engaged in unsafe behavior toward a coworker on a highway. The fired employee’s union argued the termination violated the National Labor Relations Act (NLRA) because she didn’t intend to intimidate or endanger the coworker. The union’s argument had some legs because the NLRB periodically excuses worker misconduct that it classifies as “animal exuberance,” including some very aggressive behavior. Although the employer ultimately prevailed, the Board initially ruled the other way, forcing the company to go through several appeals before obtaining the end result.
In December 2012, Consolidated Communications was engaged in labor negotiations with Local 702 of the International Brotherhood of Electrical Workers, AFL-CIO, after the parties’ collective bargaining agreement had expired. When negotiations stalled, the union ordered a strike. Pat Hudson, who had worked at Consolidated for 39 years, was a union member and participated in the strike.
On the morning of December 10, 2012, Hudson was driving to the Consolidated facility to participate in the picketing of its corporate headquarters when she saw a company truck on Route 16. She decided to follow the truck so she could set up an ambulatory picket at the jobsite, as the union had encouraged. She was followed by another striking employee, Brenda Weaver, in a second vehicle.
When they caught up with the Consolidated truck, Weaver passed Hudson and the truck in the passing lane before pulling in front of the company vehicle. Next, Hudson pulled alongside the truck and drove in the passing lane parallel to the truck until she accelerated and drove parallel to Weaver, who was in front of the company vehicle. After some time, traffic began to stack up behind Hudson.
Hudson accelerated, passed Weaver, and pulled into the right lane to allow traffic to pass. The Consolidated truck then switched lanes, joined the line of passing cars, and attempted to overtake Weaver and Hudson. Before the truck could pass Hudson, she changed lanes and intentionally blocked it from passing.
Afterward, the truck returned to the right lane behind Weaver, where it remained for approximately a mile before exiting on Route 16 to avoid any further conflicts. The entire incident took place at highway speeds.
Three days later, after the strike ended, Hudson was suspended pending an investigation of her conduct on December 10 as well as two other strike-related incidents (neither of which was at issue here). On December 17, at a meeting between her and Consolidated, at which she was accompanied by her union representative, she was terminated for her vehicular activity in connection with the strike.
ALJ Agrees with Union
After Hudson’s dismissal, the union filed an unfair labor practice charge alleging Consolidated violated the NLRA by terminating Hudson for protected conduct. The NLRB’s acting general counsel filed a complaint, and an NLRB administrative law judge (ALJ) held a hearing. The ALJ agreed with the union and decided none of Hudson’s conduct warranted discharge.
After the initial decision, Consolidated filed a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit. The appellate court largely agreed with the NLRB’s decision but disagreed with its analysis of the high-speed driving incident. The court sent the case back to the Board with instructions to consider all the circumstances surrounding the incident as well as the objective impact on a reasonable nonstriker, not just the absence of violence.
In its second decision, the NLRB reexamined Hudson’s conduct in light of the D.C. Circuit’s opinion and found her actions were calculated to intimidate the non-striking employees and were inherently dangerous. In fact, her acts were egregious enough to lose the protection of the National Labor Relations Act (NLRA). Therefore, the Board dismissed the charge against Consolidated, and the union appealed to the 7th Circuit.
The union argued the NLRB’s decision created a per se rule that (1) highway driving is inherently dangerous and (2) any strike-related conduct at highway speeds necessarily causes the striker to forfeit the NLRA’s protection. The court disagreed but explained it was jurisdictionally precluded from considering the argument because the union hadn’t raised it in the underlying hearing before the Board.
The union argued the NLRB’s decision wasn’t supported by substantial evidence because the incident with the Consolidated truck driver was brief, no driver was in danger, the conduct didn’t meaningfully impede the truck driver’s progress, and Hudson didn’t intend to impede or intimidate but only follow so she could set up an ambulatory picket at the jobsite. The union also claimed the Board improperly inferred the conduct was intentionally intimidating and assumed that highway driving was inherently dangerous. The court disagreed.
The court acknowledged that in previous cases the NLRB has found it unlawful for employers to discipline employees for engaging in certain aggressive or dangerous behavior. In one case, striking employees followed nonstriking employees and in some instances drove recklessly or hurled eggs or tomatoes. Oneita Knitting Mills, Inc. v. NLRB, 375 F.2d 385 (4th Cir., 1967). Similarly, in a second case, a striking employee followed replacement employees as they drove home, tailgating, harassing, and making obscene gestures. International Paper Co., 309 NLRB 31, 36 (1992). In both cases, the employees’ conduct was deemed protected.
Then, in a third case, the NLRB decided it was unlawful for an employer to discipline an employee who posted vulgar and hostile comments about its assistant director on Facebook. Pier Sixty, LLC, 362 NLRB No. 59 (2014). Those are only a few examples of cases in which employers have been found liable under the NLRA for disciplining employees for conduct that many reasonable people would consider far beyond the scope of acceptable workplace behavior.
In Hudson’s case, the 7th Circuit decided the NLRB’s second decision was supported by substantial evidence. It was uncontested that she was traveling on a major thoroughfare at a high rate of speed and pulled in front of Consolidated’s vehicle, only relenting when the truck exited the highway. The company’s driver reportedly testified that he felt unsafe and, in an effort to avoid further incident or danger, exited the highway and took an alternative route to the jobsite.
The 7th Circuit decided Hudson’s conduct didn’t fall within the type of trivial rough incidents or moments of “animal exuberance” the NLRB excuses. Local 702, International Brotherhood of Electrical Workers, AFL-CIO v. National Labor Relations Board and Consolidated Communications, No. 18-3322 (7th Cir., Aug. 9, 2019).
You generally have a right to hold employees to uniformly enforced performance and behavioral expectations to the extent those expectations don’t interfere with their free exercise of protected rights under federal, state, or local law. The NLRA gives employees the right to act together to try to improve their pay and working conditions with or without a union.
When an employee’s conduct is directed at improving co-workers’ terms and conditions of employment, then it’s generally protected. There is a point, however, when an employee takes things too far and loses some of the protections afforded by the NLRA. In those circumstances, you should confer with experienced legal counsel about what is and isn’t protected concerted activity before taking any disciplinary action.
This article, slightly modified to note recent updates, was featured in the September 2019 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.