Consolidated Communications, Inc. v. National Labor Relations Board
837 F.3d 1
D.C. Cir.2016Background
- Consolidated Communications and IBEW Local 702 struck in December 2012 after contract talks failed; picketing occurred at multiple Consolidated sites and ambulatory picketing was authorized by the Union.
- Consolidated used replacement workers and security; it received reports of six alleged incidents of striker misconduct involving employees Hudson, Maxwell, Williamson, and Weaver.
- Consolidated suspended all four pending investigation; Maxwell and Williamson received two-day suspensions, Hudson and Weaver were discharged; Weaver later settled and is not at issue on review.
- The NLRB and ALJ found Consolidated unlawfully disciplined the four and that Consolidated unlawfully eliminated a bargaining-unit Office Specialist–Facilities position without bargaining.
- The D.C. Circuit enforced the Board’s rulings as to Maxwell, Williamson, and the unilateral elimination of the bargaining-unit position, but granted review, vacated and remanded the Board’s ruling on Hudson’s discharge because the Board misapplied the striker‑misconduct legal standard and burdens.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Maxwell’s suspension for blocking/striking a vehicle was lawful | Board/GC: Maxwell did not intentionally strike or intimidate; conduct protected by NLRA | Consolidated: Maxwell intentionally blocked/leaned on the van and was abusive, justifying suspension | Held: Substantial evidence supported Board that Maxwell did not engage in disqualifying misconduct; suspension unlawful and enforcement affirmed |
| Whether Williamson’s suspensions (vehicle mirror incident; crotch-grab gesture) were lawful | Board/GC: no intentional striking of mirror; crotch gesture—unpleasant but not reasonably coercive to deny protection | Consolidated: Williamson struck/damaged mirror and made an obscene intimidating gesture, justifying suspension | Held: Substantial evidence supports Board: no mirror-strike and gesture, though offensive, was not sufficiently coercive to forfeit protection; enforcement affirmed |
| Whether Hudson’s discharge for multiple vehicular incidents was lawful | Board/GC: Hudson’s conduct did not rise to striker‑misconduct that forfeits protection | Consolidated: Hudson’s repeated obstructive and hazardous driving on a public highway could reasonably tend to intimidate non‑strikers and justify discharge | Held: Court enforces Board as to two incidents (Greider, Rankin) but VACATES and REMANDS Hudson discharge because the Board misapplied the Clear Pine objective test and improperly shifted burdens on whether highway driving reasonably tended to intimidate non‑strikers |
| Whether Consolidated violated duty to bargain by eliminating Weaver’s Office Specialist‑Facilities position | Board/GC: Consolidated eliminated the bargaining‑unit position and reassigned duties without notice/bargaining | Consolidated: position not truly eliminated; bargaining occurred after decision | Held: Board’s finding supported: unilateral elimination/reassignment of unit duties without advance bargaining violated §8(a)(5); enforcement affirmed |
Key Cases Cited
- NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (employer discipline for striker conduct requires GC to prove employee was a striker, employer knew it, discipline was for strike conduct, and employee was not guilty)
- NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (strikers ordinarily must be reinstated absent disqualifying misconduct)
- Allied Indus. Workers, AFL‑CIO Local No. 289 v. NLRB, 476 F.2d 868 (D.C. Cir.) (not every picket‑line incident removes NLRA protection; impulsive behavior expected)
- Shamrock Foods Co. v. NLRB, 346 F.3d 1130 (D.C. Cir.) (describes burden‑shifting in striker‑misconduct cases and employer honest‑belief defense)
- Montgomery Ward & Co. v. NLRB, 374 F.2d 606 (10th Cir.) (contextual approach to picket‑line misconduct)
- Oneita Knitting Mills, Inc. v. NLRB, 375 F.2d 385 (4th Cir.) (vehicular obstruction on public highway may be inherently dangerous and intimidatory)
- Litton Financial Printing Div. v. NLRB, 501 U.S. 190 (employer must bargain before making unilateral changes to mandatory subjects)
- Brewers & Maltsters, Local Union No. 6 v. NLRB, 414 F.3d 36 (D.C. Cir.) (affirming duty to bargain before unilateral changes)
- Regal Cinemas, Inc. v. NLRB, 317 F.3d 300 (D.C. Cir.) (elimination of bargaining‑unit positions and transfer of work without bargaining violates §8(a)(5))