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Consolidated Communications, Inc. v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

September 13, 2016

Consolidated Communications, Inc., doing business as Illinois Consolidated Telephone Company, Petitioner
v.
National Labor Relations Board, Respondent International Brotherhood of Electrical Workers, AFL-CIO, Local 702, Intervenor

          Argued March 4, 2016

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Robert T. Dumbacher argued the cause for petitioner. With him on the briefs were Kurt G. Larkin, David C. Lonergan, and Amber M. Rogers.

          Joel 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 intervenor.

          Before: Tatel, Brown, and Millett, Circuit Judges.

          OPINION

          Millett Circuit Judge.

         After 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.

         We 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.

         I

         Consolidated 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.

         The 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.

         During 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.

         The 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.

         In 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.

         The 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 the Union.

         The 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.

         In July 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.[1]

         II

         On 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)).

         Sections 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.

         An 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).

         Not all 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.

         Consequently, "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 Mouldings,

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.

         "The 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).

         The 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 labor laws.").

         There 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 omitted).

         III

         A. Maxwell

         Michael 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 parking lot.

         That 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.

         At some 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.

         Consolidated 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.").

         Adopting 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.

         In 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.

         Those 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 ...


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