CHICAGO — A federal appeals panel has upheld the termination of a striking union worker who was accused of endangering public safety while blocking the path of another driver as part of an "ambulatory picket" in 2012.
On Aug. 9, a three-judge panel of the U.S. Seventh Circuit Court of Appeals in Chicago sided with the National Labor Relations Board, which had found a company was within its rights to fire union worker who had used her vehicle to block the path of a company truck while she and her union were on strike.
The decision was authored by Seventh Circuit Judge William J. Bauer, with judges David Hamilton and Amy J. St. Eve concurring.
In December 2012, International Brotherhood of Electrical Workers AFL-CIO Local 702 was engaged in contract negotiations with Consolidated Communications. Consolidated employee Pat Hudson was driving to join a picket at the company's corporate headquarters when she decided to followed a Consolidated company truck and, with the help of another striking employee in a second vehicle, engaged in an "ambulatory picket," blocking the truck from the front and side. The maneuver caused a traffic backup, and forced the "ambulatory picketers" to change lanes rapidly to keep the truck from passing either of their vehicles.
Three days later, with the strike over, Consolidated suspended Hudson. A few days later, at a meeting attended by a union representative, Consolidated fired her for the highway incident. The union, before the NLRB, argued Hudson’s driving behavior was protected conduct.
An administrative law judge agreed with the union, prompting Consolidated’s appeal to the U.S. Court of Appeals for the Washington, D.C., Circuit.
“While the D.C. Circuit largely agreed with the Board’s decision, it did disagree with the Board’s analysis of the high-speed driving incident,” Bauer wrote. “On remand, the court instructed the Board to consider all the circumstances surrounding the incident as well as the objective impact on a reasonable non-striker, not just the absence of violence.”
The NLRB invited all parties to file position statements, ultimately finding “Hudson’s actions were calculated to intimidate the nonstriking employees and were inherently dangerous,” Bauer wrote. “Therefore, her acts were sufficiently egregious to lose protection of the (National Labor Relations) Act.”
The NLRB dismissed the union’s complaint, prompting the union to appeal to the Seventh Circuit. At that stage, Bauer said, the union argued the NLRB decision was unsupported by substantiated evidence and creates a highway conduct rule.
“The Union argues that the Board’s decision creates a per se rule that highway driving is inherently dangerous and any strike-related conduct at highway speeds necessarily costs the striker the protection of the Act,” Bauer wrote. “While we do not agree with this characterization of the Board’s decision, the Union failed to raise it before the Board; therefore, we are jurisdictionally precluded from considering it.”
The panel was required to consider whether the NLRB based its decision on substantial evidence, Bauer said, including the union’s argument that the NLRB “relied on impermissible assumptions and inferences while ignoring contravening evidence.”
The union suggested “the incident with the Consolidated Driver was brief, lasting only a moment or two; that neither driver was in any danger; that the conduct did not meaningfully impede the driver’s progress; and that Hudson did not intend to impede or intimidate, but only follow so she could set-up an ambulatory picket at the job site,” Bauer wrote.
The panel examined other cases involving striking employees who lost NLRA protections based on conduct while driving and said that while Hudson’s conduct might be less severe, it still exceeded the bounds of legality. It said Hudson purposefully impeded the truck, the driver of which testified he felt unsafe to the point he exited the highway and chose an alternate route.
While the NLRB is permitted to excuse impetuous exuberance, the panel said Hudson’s actions “illustrate a thorough plan” and offered substantial evidence to affirm the NLRB decision.