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The U.S. Court of Appeals for the District of Columbia Circuit issued a ruling recently in which it put the brakes on a questionable decision from the National Labor Relations Board (NLRB). The NLRB had found an episode of dangerous driving to be protected by law. The D.C. Circuit stated clearly: not so fast.
The case, Consolidated Communications, involved a week-long strike in 2012 by International Brotherhood of Electrical Workers (IBEW) Local 702 during which striking employees engaged in several instances of objectionable behavior.
Some of those incidents included deliberately harassing non-striking employees exiting workplaces, at least one instance in which a male employee made an obscene physical gesture toward a female employee, and a situation in which a non-striking employee in a company truck was followed onto a highway by two union members who allegedly proceeded to cut him off, slowed down, and blocked him from passing them.
Upon the conclusion of the strike, Consolidated disciplined four of the employees involved in the alleged misconduct, two of whom were fired for the highway incident. These actions prompted a complaint to the NLRB.
An administrative law judge heard the case initially and questioned the credibility of the non-striking employees, claiming there was little evidence supporting their version of events. Perhaps unsurprisingly, he found that anything that did happen in the course of the strike was protected activity and therefore all of the disciplinary acts were unlawful. Even less surprising, a three member panel of the Board upheld the ALJ’s decision and ruled against the employer.
Contrary to the Board, however, the D.C. Circuit found that there are at least some limits on obnoxious behavior during labor strikes.
In reviewing the case, the court did agree to enforce most of the Board’s ruling, but it reversed the Board on the highway episode that led to the dismissal of the two employees. Opining that the Board misapplied the proper legal standard in its review, the court noted that it is up to the NLRB’s general counsel to “establish either that no misconduct occurred, or that the misconduct was not of sufficient severity to forfeit the law’s protection of striker activity.”
Instead, the court noted, the Board “stressed the ‘absence of violence’….But that asked the wrong question.” As the court saw it, the legal test should have been simply “whether the striker’s conduct, taken in context, ‘reasonably tended to intimidate or coerce any non-strikers.’” The Board, therefore should have considered “all of the relevant circumstances, and evaluate[d] the objective impact on a reasonable non-striker of misconduct committed on a high-speed public roadway with third-party vehicles present.”
Because the situation was at best ambiguous, the court concluded that “equivocation in the evidence on the question of the conduct’s seriousness ‘must be resolved in favor of the employer’” and ordered the Board to reevaluate the incident accordingly.
Employers facing disruptive strikes frequently face similar episodes of taunting and harassment, and under the current NLRB, that behavior is generally given a pass. Thankfully, there are still courts willing to uphold some semblance of sanity when given the opportunity.