Local 702, Int'l Bhd. of Elec. Workers v. Nat'l Labor Relations Bd. , 934 F.3d 590 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-3322
LOCAL 702, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
and
CONSOLIDATED COMMUNICATIONS,
doing business as Illinois
Consolidated Telephone Company,
Intervening-Respondent.
Petition for Review of an Order of the
National Labor Relations Board.
Nos. 14-CA-094626 and 14-CA-101495.
2 No. 18-3322
ARGUED MAY 16, 2019 — DECIDED AUGUST 9, 2019
Before BAUER, HAMILTON, and ST. EVE, Circuit Judges.
BAUER, Circuit Judge. Pat Hudson was a long time em-
ployee of Consolidated Communications (“Consolidated”),
who was discharged due to strike-related misconduct. Follow-
ing an appeal to the D.C. Circuit Court, the National Labor
Relations Board (the “Board”) issued a supplemental decision
concluding that Consolidated did not violate § 8(a)(3) of the
National Labor Relations Act (the “Act”), as codified at 29
U.S.C. § 158(a)(3). For the reasons that follow, we affirm.
I. BACKGROUND
In December, 2012, Consolidated was negotiating with
Local 702, International Brotherhood of Electrical Workers,
AFL-CIO (the “Union”), after the expiration of a collective-
bargaining agreement. When negotiations stalled, the Union
ordered a strike. Hudson, who had worked for Consolidated
for 39 years, was a Union member and participated in the
strike.
A. The Offending Conduct
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 job site as encouraged by the
Union. Hudson was followed by another striking employee,
Brenda Weaver, in a second vehicle.
No. 18-3322 3
When they caught up with the Consolidated truck, Weaver
passed Hudson and the truck in the passing lane before pulling
in front of the truck. 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 truck. After some time, traffic began to stack up behind
Hudson who was driving parallel to Weaver.
Hudson accelerated, passed Weaver and pulled into the
right lane to allow traffic to pass. At this time the Consolidated
truck switched lanes, joined the line of passing cars and
attempted to overtake Weaver and Hudson. Before it could
pass Hudson, she changed lanes and intentionally blocked the
Consolidated truck from passing. Afterwards, the Consoli-
dated truck returned to the right lane behind Weaver where it
remained for approximately a mile before it exited Route 16 to
avoid any further incident. The entire incident took place at
highway speeds.
On December 13, 2012, after the strike ended, Hudson was
suspended pending an investigation of her conduct on Decem-
ber 10, and for two other strike-related incidents—neither of
which are at issue here. On December 17, 2012, at a meeting
between her and Consolidated where her Union representative
was present, she was terminated for her dangerous vehicular
activity in connection with the strike.
B. NLRB Hearing and Appeal
Following Hudson’s dismissal, the Union filed a claim
alleging Consolidated violated the Act by terminating Hudson
for protected conduct. The Board’s Acting General Counsel
filed a complaint and an administrative law judge (“ALJ”) held
4 No. 18-3322
a hearing. The ALJ agreed with the Union and determined that
none of the conduct cited warranted Hudson’s discharge. The
ALJ further found that Hudson’s highway conduct was not
egregious enough to warrant her termination and that any
ambiguity as to the severity of the conduct should be resolved
in her favor.
Following the Board’s decision, Consolidated filed a
petition for review with the U.S. Court of Appeals for the D.C.
Circuit; the Board cross-appealed for enforcement and the
Union intervened. 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. On remand, the court
instructed the Board to consider all the circumstances sur-
rounding the incident as well as the objective impact on a
reasonable non-striker, not just the absence of violence.
The Board accepted the D.C. Circuit’s remand and invited
the parties to file position statements. Reexamining Hudson’s
conduct in light of the D.C. Circuit’s opinion, the Board found
that Hudson’s actions were calculated to intimidate the non-
striking employees and were inherently dangerous. Therefore,
her acts were sufficiently egregious to lose protection of the
Act. Ultimately, they dismissed the complaint against Consoli-
dated.
Now, the Union appeals arguing that: the Board’s decision
creates a per se rule about highway conduct and that the
Board’s decision was unsupported by substantial evidence and
ignored contrary evidence. We disagree.
No. 18-3322 5
II. ANALYSIS
The Court gives “substantial deference to both [the Board’s]
findings of fact and its interpretations of the [Act, but] we must
still determine whether the Board’s decision is supported by
substantial evidence and whether its legal conclusions have a
reasonable basis in law.” Columbia Coll. Chicago v. Nat’l Labor
Relations Bd., 847 F.3d 547, 552 (7th Cir. 2017) (internal quota-
tions omitted citing Roundy’s Inc. v. N.L.R.B., 674 F.3d 638,
645–46 (7th Cir. 2012). “We defer to the Board’s interpretation
of the [Act] unless its legal conclusions are irrational or
inconsistent with the Act.” Id.
First, 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. 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 jurisdiction-
ally precluded from considering it. 29 U.S.C. § 160(e) (“No
objection that has not been urged before the Board, its member,
agent, or agency, shall be considered by the court, unless the
failure or neglect to urge such objection shall be excused
because of extraordinary circumstances.”).
A. The Board’s Decision was Based on Substantial
Evidence
Next, we look to see if the Board’s decision was based on
substantial evidence and if its legal conclusions have a reason-
able basis in law. See Jam Prods., Ltd. v. Nat’l Labor Relations Bd.,
893 F.3d 1037, 1042 (7th Cir. 2018). “Both standards are
deferential; the Board’s factual conclusions are supported by
6 No. 18-3322
substantial evidence when they are based on “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. at 1042–43.
The D.C. Circuit ordered the Board to evaluate Hudson’s
conduct and “consider, consistent with precedent, all of the
relevant circumstances, and evaluate the objective impact on a
reasonable non-striker of misconduct committed on a high-
speed public roadway with third-party vehicles present.”
Consol. Commc'ns, Inc. v. Nat’l Labor Relations Bd., 837 F.3d 1, 18
(D.C. Cir. 2016) (emphasis in original) (citing Oneita Knitting
Mills, Inc. v. N. L. R. B., 375 F.2d 385 (4th Cir. 1967); Int’l Paper
Co., 309 N.L.R.B. 31, 36 (1992)). On remand, the Board did just
that.
The Union argues that the Board’s decision is not supported
by substantial evidence and, to come to its conclusion, it relied
on impermissible assumptions and inferences while ignoring
contravening evidence. They suggest that 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. Moreover, the
Union argues that the Board improperly inferred that the
conduct was intentionally intimidating and assumed that
highway driving was inherently dangerous.
In Oneita Knitting, striking employees followed non-striking
employees and, in some instances, drove recklessly or hurled
eggs or tomatoes. 375 F.2d at 391-392. In Int’l Paper Co., a
striking employee followed replacement employees as they
No. 18-3322 7
drove home, tailgating, harassing, and making obscene
gestures. Here, the conduct may be less severe, but it is still
sufficient to forfeit the Act’s protection.
It is uncontested that Hudson was traveling on a major
thoroughfare at a high rate of speed. She pulled in front of
Consolidated’s vehicle and purposely impeded their progress,
only relenting when the Consolidated truck exited the highway
and she was no longer able to pursue. The Consolidated driver
testified that he felt unsafe and, in an effort to avoid further
incident or danger, he exited the highway and took an alter-
nate route to the job site.
While the Union argues that Hudson’s conduct was not
intended to intimidate or endanger the Consolidated employ-
ees and that she only intended to follow them to set up an
ambulatory picket, that suggestion is belied by the fact that she
was following them from the front and purposely impeded
their progress. These acts illustrate a thorough plan to do more
than follow the work vehicle and are not “animal exuberance”
which the Board can and does excuse. Advance Indus. Div.
Overhead Door Corp. v. N.L.R.B., 540 F.2d 878, 882 (7th Cir. 1976)
(“Trivial rough incidents or moments of animal exuberance
must be distinguished from misconduct so violent or of such a
serious character as to render the employee unfit for further
service.”).
III. CONCLUSION
Because the Board based their decision on substantial
evidence and a reasonable application of the law, we AFFIRM.