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On remand, divided NLRB says strike-related misconduct severe enough to lose NLRA protection

By Ronald Miller, J.D.

On remand from the D.C. Circuit, a divided three-member panel of the NLRB ruled that an employee’s strike-related misconduct was of sufficient severity to lose the protection of the NLRA. The employee was accused of repeatedly cutting off a company truck on a four-lane public highway, with vehicles traveling at speeds of 45 to 55 mph, in the course of strike-related activity. The Board majority concluded that it was beyond doubt that the employee’s actions “would reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights, including the right to refrain from striking.” Accordingly, the Board dismissed the complaint allegation relating to her discharge. Member McFerran dissented (Consolidated Communications dba Illinois Consolidated Telephone Co., October 2, 2018).

Highway-driving incident. During a strike in support of union bargaining demands, the employee, with a coworker in a separate car behind her, spotted a company truck traveling along a four-lane divided highway, occupied by two of the company’s managers. The employees decided to follow the truck. Once the strikers caught up to the truck, the coworker passed both vehicles and then returned to the right line in front of the truck. The employee then also passed the truck, but remained in the left lane, traveling alongside at the speed limit. She eventually moved to the right to allow other traffic to pass, but when the company truck moved to the left lane to pass the employee, she returned to the left to block the truck from passing her. Eventually, the company truck took a different longer way to the worksite.

Discharge unlawful? The NLRB issued a decision finding that the employer unlawfully discharged the employee because of her strike-related activity. It concluded that the employee did not engage in misconduct warranting forfeiture of the Act’s protection. The D.C. Circuit denied enforcement of the Board’s order and vacated its finding that her discharge was unlawful. Rejecting the Board’s determination that the employee’s misconduct did not lose statutory protection, the appeals court said the Board had erroneously focused exclusively on “the absence of violence.” It remanded the case for the Board to apply the analysis set forth in Clear Pine Mouldings and to ascertain whether, under “all the relevant circumstances,” the employee’s strike-related conduct “reasonably tended to intimidate or coerce any nonstrikers.”

Decision on remand. The sole issue to be resolved on remand was whether the employee, in the course of strike-related activity, engaged in misconduct that lost the Act’s protection. Here, the Board observed that nothing in the 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 process of a vehicle driven by a nonstriker. Therefore, even though the employee’s actions were otherwise protected, the totality of circumstances in this case required the Board to find that the Act’s protection was lost because of her serious misconduct.

Safety concerns. It was readily apparent that the employee’s driving would reasonably cause the occupants of the company truck to fear for their safety. By deliberately returning to the left lane and blocking the truck’s attempt to pass, the employee sent the clear message that she was intentionally using her vehicle to obstruct or impede their passage. Not only was preventing the truck from passing dangerous, it would reasonably raise a concern about what the employee would do next. Any employees would reasonably fear that the employee’s next maneuver could cause a collision that would jeopardize the lives of other motorists on the highway. Moreover, it was of no consequence that the employee’s highway-speed maneuvers and obstruction of the company truck lasted only a minute or so until the driver of the truck turned onto an alternate route to his destination. A miscalculation by anyone during that minute could have caused multiple injuries. Thus, the complaint allegation that the employer unlawfully discharged the employee was dismissed.

Dissent. Member McFerran argued that while the employee’s conduct may have annoyed or frustrated the managers in the company truck, it never posed a genuine danger to them, and it had no reasonable tendency to intimidate or coerce them. According to the dissent, the Board focused narrowly on the fact that the driving incident took place at highway speeds, and adopted what approaches a per se rule that strike-related conduct on the highways is “inherently dangerous” and so always unprotected. Considering “all the circumstances,” McFerran argued that the General Counsel proved that the employee’s conduct was not misconduct severe enough to cost the employee the protection of the Act, and so her job.