United States Court of Appeals, District of Columbia Circuit
Consolidated Communications, Inc., doing business as Illinois Consolidated Telephone Company, Petitioner
National Labor Relations Board, Respondent International Brotherhood of Electrical Workers, AFL-CIO, Local 702, Intervenor
March 4, 2016
On Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
T. Dumbacher argued the cause for petitioner. With him on the
briefs were Kurt G. Larkin, David C. Lonergan, and Amber M.
A. Heller, Attorney, National Labor Relations Board, argued
the cause for respondent. With him on the brief were Richard
F. Griffin, Jr., General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, and Jill A. Griffin, Supervisory Attorney.
Christopher N. Grant argued the cause and filed the brief for
Before: Tatel, Brown, and Millett, Circuit Judges.
Millett Circuit Judge.
collective-bargaining negotiations soured between
Consolidated Communications, Inc. ("Consolidated")
and the International Brotherhood of Electrical Workers,
AFL-CIO, Local 702 ("Union"), Union members
launched a strike at several company facilities. After the
dust settled and the strikers returned to work, Consolidated
disciplined several employees for alleged misconduct during
the strike and eliminated a workplace position held by a
union worker. The National Labor Relations Board found that
both Consolidated's disciplinary actions and its
unilateral elimination of a bargaining-unit position violated
the National Labor Relations Act, 29 U.S.C. §§
158(a)(1), (3) and (5). Consolidated now petitions for review
of the Board's decision, while the Board cross-petitions
for enforcement of its order.
enforce the portions of the Board's order determining
that Consolidated's suspensions of Michael Maxwell and
Eric Williamson, as well as the company's elimination of
the bargaining-unit position, violated the Act. However, we
grant Consolidated's petition for review and deny
cross-enforcement for that portion of the order addressing
Consolidated's discharge of Patricia Hudson, and remand
because the Board applied an erroneous legal standard in
evaluating Hudson's strike misconduct.
is a telecommunications company that provides commercial and
residential telephone, television, and broadband services.
The company maintains numerous facilities in Illinois,
including a garage in Taylorville and a general warehouse
known as the Rutledge Building on 17th Street in Mattoon.
Consolidated's corporate headquarters is also in Mattoon.
Union represents a unit of employees at Consolidated's
Taylorville and Mattoon facilities whose work was covered by
a collective-bargaining agreement that expired in November
2012. Numerous bargaining sessions for a new contract failed,
and negotiations between Consolidated and the Union stalled.
Union members then began a strike on December 6, 2012.
Employees picketed at several company locations, including
the Taylorville garage, the Rutledge Building, and the
Mattoon corporate headquarters. The Union informed the
strikers that they could also picket at any commercial sites
where Consolidated employees were performing work, a practice
known as "ambulatory picketing." J.A. 183.
the strike, Consolidated continued to operate through the use
of replacement workers, out-of-state employees, and managers.
Consolidated hired the Huffmaster Security Company to guard
the facilities, direct traffic across picket lines, and
advise non-striking employees about how to conduct themselves
during the strike. Non-striking employees
were instructed to be "extremely cautious in their
dealing with strikers to ensure everyone's safety"
and to "[r]eport any incidents to the Command
Center." J.A. 59.
strike lasted almost a week, with the strikers returning to
work on December 13, 2012. In the course of the strike,
Consolidated received written and verbal reports of six
specific incidents of alleged misconduct by strikers Michael
Maxwell, Patricia Hudson, Brenda Weaver, and Eric Williamson.
After meeting individually with each employee, Consolidated
suspended all four employees indefinitely without pay pending
investigation of the allegations. Several days later,
Consolidated confirmed two-day suspensions for Maxwell and
Williamson and discharged Hudson and Weaver.
early 2013, Consolidated decided to fill Hudson's job as
an Office Specialist in the Fleet Department, but not
Weaver's former position of Office Specialist in the
Facilities Department. Consolidated assigned the Fleet
Department job, as well as some of Weaver's former
duties, to another bargaining-unit employee. Consolidated did
not notify or bargain with the Union in advance of those
decisions. Upon learning of them, the Union immediately
objected and demanded a return to the status quo and the
opportunity to bargain over the changes. In April,
Consolidated informed the Union that it was transferring some
of Weaver's former duties outside of the bargaining unit.
Union filed unfair labor practice charges against
Consolidated objecting to both the disciplinary actions and
the unilateral elimination of a bargaining-unit position. The
General Counsel for the Board subsequently issued a complaint
alleging that Consolidated violated Sections 8(a)(3) and (1)
of the Act, 29 U.S.C. §§ 158(a)(3) & (1), by
discharging Hudson and Weaver and suspending Maxwell and
Williamson for alleged misconduct that the General Counsel
alleged either did not occur or was insufficiently egregious
to warrant such discipline. The complaint also alleged that
Consolidated violated Sections 8(a)(5) and (1) of the Act, 29
U.S.C. §§ 158(a)(5) & (1), by eliminating a
bargaining-unit position without notifying or bargaining with
case was heard by a National Labor Relations Board
Administrative Law Judge, who found that Consolidated acted
unlawfully in disciplining Hudson, Weaver, Maxwell, and
Williamson. The ALJ declined to rule on the Section 8(a)(5)
claim pertaining to the eliminated unit position.
2014, the Board affirmed the ALJ's rulings, findings, and
conclusions. The Board also concluded that Consolidated
violated Section 8(a)(5) by reassigning and eliminating the
job duties of the Office Specialist-Facilities position
without notice of bargaining.
review, the Board's factual findings and application of
law to those facts must be sustained if they are
"supported by substantial evidence on the record
considered as a whole." 29 U.S.C. § 160(e). While
our review is deferential, we will not "rubber-stamp
NLRB decisions, " and we "examine carefully both
the Board's findings and its reasoning." Erie
Brush & Mfg. Corp. v. NLRB, 700 F.3d 17, 21 (D.C.
Cir. 2012) (internal citations and quotation marks omitted).
"[W]e do not reverse the Board's adoption of an
ALJ's credibility determinations unless * * * those
determinations are 'hopelessly incredible, '
'self-contradictory, ' or 'patently
unsupportable.'" Cadbury Beverages, Inc. v.
NLRB, 160 F.3d 24, 28 (D.C. Cir. 1998) (quoting
Capital Cleaning Contractors, Inc. v. NLRB, 147 F.3d
999, 1004 (D.C. Cir. 1998)).
8(a)(3) and (1) of the Act prohibit an employer from
interfering with, restraining, coercing, or discriminating
against employees in the exercise of their statutory rights
to, among other things, join together in collective action
and strike. 29 U.S.C. §§ 158(a)(3) & (1). Under
the Act, an employer ordinarily must reinstate striking
employees at the conclusion of a strike. See National
Conference of Firemen and Oilers, SEIU v. NLRB, 145 F.3d
380, 384 (D.C. Cir. 1998); NLRB v. Fleetwood Trailer
Co., 389 U.S. 375, 378- 379 (1967). However,
"serious misconduct by strikers is not protected by the
Act, " and an employer's imposition of
"reasonable discipline, including the refusal to
reinstate employees for such misconduct, does not constitute
an unfair labor practice." National Conference of
Firemen and Oilers, 145 F.3d at 384.
employer's discipline of an employee for strike conduct
constitutes an unfair labor practice if (i) "the
discharged employee was at the time" of the alleged
misconduct "engaged in a protected activity, " (ii)
the employer knew the employee was engaged in a protected
activity, (iii) the alleged misconduct during that protected
activity provided the basis for discipline, and (iv) the
"employee was not, in fact, guilty of that
misconduct." NLRB v. Burnup & Sims, Inc.,
379 U.S. 21, 23 (1964).
misconduct is sufficient to disqualify a striker from the
Act's protection, however. See Allied Indus. Workers,
AFL-CIO Local Union No. 289 v. NLRB, 476 F.2d 868, 879
(D.C. Cir. 1973) ("[N]ot every incident occurring on the
picket line, though harmful to a totally innocent employer,
justifies refusal to reemploy a picketing employee for acts
that exceed the bounds of routine picketing.") (quoting
Montgomery Ward & Co. v. NLRB, 374 F.2d 606, 608
(10th Cir. 1967)); Coronet Casuals, 207 NLRB 304,
304 (1973) ("[N]ot every impropriety committed in the
course of a strike deprives an employee of the protective
mantle of the Act."). Indeed, this court has previously
noted that "[c]learly some types of impulsive behavior
must have been within the contemplation of Congress when it
provided for the right to strike." Allied Indus.
Workers, 476 F.2d at 879.
"the employees' right to organize and bargain
collectively" must be balanced "against the
employer's right to maintain order and respect and the
public's right to safety." Allied Indus.
Workers, 476 F.2d at 879. Striker misconduct justifies
an employer's disciplinary action if, "'under
the circumstances existing, it may reasonably tend to coerce
or intimidate employees in the exercise of rights protected
under the Act, '" including the right to refrain
from striking. Clear Pine Mouldings, 268 NLRB 1044,
1046 (1984), enf'd, 765 F.2d 148 (9th Cir.
1985), cert. denied, 474 U.S. 1105 (1986) (quoting
NLRB v. W.C. McQuaide, Inc., 552 F.2d 519, 528 (3d
Cir. 1977)). As the Board explained in Clear Pine
the existence of a "strike" in which some employees
elect to voluntarily withhold their services does not in any
way privilege those employees to engage in other than
peaceful picketing and persuasion. They have no right, for
example, to threaten those employees who, for whatever
reason, have decided to work during the strike, to block
access to the employer's premises, and certainly no right
to carry or use weapons or other objects of intimidation. As
we view the statute, the only activity the statute privileges
in this context, other than peaceful patrolling, is the
nonthreatening expression of opinion, verbally or through
signs and pamphleteering * * *.
268 NLRB at 1047.
Clear Pine standard is an objective one" and
"does not call for an inquiry into whether any
particular employee was actually coerced or
intimidated." Mohawk Liqueur Co., 300 NLRB
1075, 1075 (1990). Rather, "'[a] serious threat may
draw its credibility from the surrounding circumstances and
not from the physical gestures of the speaker, '"
and an employer need not "'countenance conduct that
amounts to intimidation and threats of bodily
harm.'" Clear Pine Mouldings, 268 NLRB at
1046 (quoting Associated Grocers of New England v.
NLRB, 562 F.2d 1333, 1336 (1st Cir. 1977), and W. C.
McQuaide, Inc., 552 F.2d at 527).
striker-misconduct standard thus offers misbehaving employees
greater protection from disciplinary action than they would
enjoy in the normal course of employment. See Midwest
Regional Joint Board v. NLRB, 564 F.2d 434, 440 (D.C.
Cir. 1977) ("Absent a showing of anti-union motivation,
an employer may discharge an employee for a good reason, a
bad reason or no reason at all without running afoul of the
is a "burden-shifting element to the Burnup &
Sims test" for determining whether employer
discipline of a striker amounts to an unfair labor practice.
Shamrock Foods Co. v. NLRB, 346 F.3d 1130, 1134
(D.C. Cir. 2003). The General Counsel must initially
establish that the disciplined employee was a striker and
that the employer took action against him or her for conduct
associated with the strike. See In re Detroit Newspaper
Agency, 340 NLRB 1019, 1024 (2003). The burden then
shifts to the employer to demonstrate an honest belief that
the disciplined employee engaged in misconduct. See
id.; Shamrock Foods Co., 346 F.3d at 1134. Upon
that showing, the burden shifts back to the General Counsel
to show that the misconduct did not occur or that it was not
serious enough to forfeit the protection of the National
Labor Relations Act and to warrant the discipline imposed.
See Shamrock Foods Co., 346 F.3d at 1134; In re
Detroit Newspaper Agency, 340 NLRB at 1024; Burnup
& Sims, 379 U.S. at 23 n.3. It is the "General
Counsel's obligation to carry the ultimate burden of
proving that illegal discrimination has occurred, " and
"[t]o the extent that there is a lack of evidence"
on either the absence of misconduct or the improper response
of the employer, the dispute "must be resolved in favor
of the employer." Axelson, Inc., 285 NLRB 862,
864 (1987); see also Shamrock Foods Co., 346 F.3d at
1135 (The "General Counsel has the burden of showing
that the employee did not, in fact, commit the
misconduct.") (internal quotation marks and citation
Maxwell is a janitor at Consolidated. On the morning of
December 8, 2012, he and several other bargaining-unit
employees picketed Consolidated's Taylorville garage,
walking back and forth across the driveway entrance to the
morning, strike-replacement workers Leon Flood and Frank
Fetchak left the parking garage in a company van with Flood
driving and Fetchak in the passenger seat. As the van
approached the exit, Maxwell and others in the picket line
blocked the van from leaving. Flood stopped the van briefly
and then began inching slowly forward towards the picketers.
Maxwell continued to walk back and forth in front of the van
between the headlights.
point, Maxwell's elbow or forearm made contact with the
hood of the van. According to an email and incident reports
written by Flood, Maxwell intentionally blocked the path of
the van and leaned on the hood. Maxwell, however, testified
that the van never stopped, but instead "[a]ll of a
sudden took off" and hit him, causing him to bend in
towards the van and brace himself against the hood with his
arm. J.A. 341. Flood's passenger Fetchak testified that
Maxwell "laid on the van, " id. at 572, or
"lean[ed] on the hood" for "less than a
minute, " id. at 575. Maxwell then moved around
to the driver's side of the van. Maxwell claimed to have
been scrambling to get out of Flood's way, but then the
van moved forward and hit him again, pushing him to the
driver's side. He gave Flood the middle finger and
uttered its associated obscenity. Id. at 342;
see also id. at 29, 574. Maxwell testified that he
sustained a "slight yellowish bruise" on his right
hip as a result of the incident. Id. at 346.
informed Maxwell about "reports of [his] harassing,
threatening, [and] intimidating behavior towards other
[Consolidated] employees, " J.A. 30, and suspended him
for violating the company's "handbook/workplace
violence policy, " which prohibits "any acts or
threats of violence, " id. at 22-23. See
also id. at 30 ("You struck the vehicle, proceeded
to the front of the vehicle and leaned on the hood for an
extended period of time impeding [Flood's] progress, and
then proceeded around the vehicle to the driver's window
and verbally harassed him.").
the ALJ's factual findings, the Board concluded that
Maxwell "did not intentionally strike Leon Flood's
vehicle and did not threaten or intimidate Leon Flood."
J.A. 12. Instead, the Board determined that Flood hit Maxwell
with the van, causing Maxwell to fall forward and brace
himself by placing his forearm on the hood. While Maxwell
"briefly impeded Flood's progress in leaving the
[Taylorville] garage, " "he did so no more than the
other five picketers" at the scene. Id. at 4.
reaching those findings, the ALJ credited Maxwell's
account, rather than Flood's written report (Flood did
not testify at the hearing), reasoning that the testimony of
Fetchak did not contradict Maxwell "in any material
way." J.A. 4 n.5. Consolidated argues that finding was
erroneous because Fetchak and Maxwell gave disparate
testimony on several key points. For example, Maxwell claimed
the van "[t]ook off like a bat out of hell, "
id. at 340, whereas Fetchak testified that Flood was
forced to stop the van close to the picket line and to inch
slowly forward. Consolidated also notes that Fetchak
testified that Maxwell put his arm on the hood and leaned
against the van, while Maxwell claimed that the van hit him
twice and that he was merely bracing himself.
distinctions, however, are not so material as to make the
fact findings clearly erroneous. Maxwell's "bat out
of hell" comment refers to the vehicle's movement
from when Maxwell first saw the van, "coming out of the
building, " not at the moment when he claims to have
been hit. J.A. 340. While Maxwell maintained that the van
never stopped, he did concede that the van was "going
slower" when it allegedly hit him. Id. at
351-352. As for Maxwell's contact with the van, Fetchak
acknowledged that "the reason [Maxwell] leaned his elbow
on the van could have been ...