By Ronald Miller, J.D. An employer unlawfully suspended two employees for alleged misconduct during a strike and eliminated a position held by a union worker, ruled the D.C. Circuit, enforcing an NLRB decision in part. However, the appeals court granted the employer’s petition for review of that portion of the order addressing the discharge of a third employee and remanded the matter after finding that the Board applied an erroneous legal standard in evaluating that employee’s strike misconduct. Judge Millett filed a separate concurring opinion, taking the Board to task for regularly tolerating sexually and racially offensive conduct that would never be tolerated in other contexts (Consolidated Communications, Inc. dba Illinois Consolidated Telephone Co. v. NLRB, September 13, 2016, Millett, P.). After bargaining negotiations failed, union members launched a strike against the employer at several company facilities. The union informed the strikers that they could also picket at any commercial sites where the employer was performing work, a practice known as "ambulatory picketing." During the strike, the employer continued to operate using replacement workers, out-of-state employees, and managers. Non-striking employees were instructed to be "extremely cautious in their dealing with strikers to ensure everyone’s safety" and to report any incidents to the employer. Strike misconduct. The strike lasted almost a week. In the course of the strike, the employer received written and verbal reports of six specific incidents of alleged misconduct by four strikers. The employer suspended all four employees pending an investigation of the allegations. Ultimately, it suspended two employees and discharged two others. Additionally, the employer decided to fill one of the discharged employee’s positions but not the other position (the duties were assigned to another bargaining unit employee). However, the employer did not notify or bargain with the union in advance regarding those decisions. Upon learning of the changes, the union immediately objected and demanded a return to the status quo and the opportunity to bargain over the changes. The union filed unfair labor practice charges against the employer objecting to both the disciplinary actions and the unilateral elimination of a bargaining unit position. An administrative law judge found that the employer acted unlawfully in disciplining the four employees, but declined to rule on the elimination of the bargaining unit position. The Board affirmed the ALJ’s ruling with regard to the discipline, but also concluded that the employer violated Section 8(a)(5) by eliminating the bargaining unit position. The employer filed a petition for review of the Board’s order and the Board filed an application for enforcement. The legal standard. An employer’s discipline of an employee for strike conduct constitutes an unfair labor practice if: (1) "the discharged employee was at the time" of the alleged misconduct "engaged in a protected activity"; (2) the employer knew the employee was engaged in a protected activity; (3) the alleged misconduct during that protected activity provided the basis for discipline; and (4) the "employee was not, in fact, guilty of that misconduct." Not all misconduct is sufficient to disqualify a striker from the Act’s protection. However, under the Board’s standard articulated in Clear Pine Mouldings, 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. "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." An employer need not "countenance conduct that amounts to intimidation and threats of bodily harm." Suspended employees. With respect to the two suspended employees, the D.C. Circuit found that substantial evidence supported the Board’s conclusion that one employee’s actions in blocking the egress of a company van were not the type of seriously coercive or intimidating behavior that forfeits a worker’s protection under the NLRA. Similarly, with respect to the second suspended employee, substantial evidence supported the Board’s determination that two instances of alleged misconduct during the strike were not severe enough to warrant his suspension. In one incident, the striker came into contact with a non-striker’s car but caused no damage. In the second incident, he made an obscene gesture towards a non-striker. Given the rough-and-tumble nature of picket lines and the fleeting nature of the employee’s offensive misconduct, the appeals court could not conclude that the Board erred in its assessment of the objective impact of this particular conduct. Discharged employees. However, the Board’s determination that one of the discharged employees did not engage in misconduct punishable under the Act rested on a misapplication of the Clear Pine Mouldings standard. In the first two incidents, the employee drove her car at a slow pace to impede the progress of the non-striking employees who were trailing in their cars. Substantial evidence supported the Board’s conclusion that such conduct did not warrant discharge. A third incident, however, was more problematic. The employee was accused of repeatedly cutting off a company truck on a four-lane public highway, with vehicles traveling at speeds of 45 to 55 mph, and with uninvolved third-party vehicles in the area. Although it occurred away from any of the picketing sites, geography by itself is not dispositive of whether conduct is strike-related. Rather, the central consideration is whether the employee undertakes the conduct for a purpose related to or in furtherance of the strike—and the employee’s conduct fell comfortably within the zone of strike-related activity. The central legal question before the Board was whether the employee’s driving behavior "may reasonably tend to coerce or intimidate" the employer’s employees. By stressing the "absence of violence," the NLRB misapplied the standard, the court said, and committed reversible error. Moreover, the Board compounded the error by holding that any ambiguity as to whether the employee’s conduct was serious enough to forfeit the protection of the Act should be resolved in favor of the employee. Those legal errors required the appeals court to grant the employer’s petition for review of that portion of the Board order. Concurrence. Judge Millett wrote separately to convey her concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. According to Judge Millett, time and again the Board’s decisions have given short shrift to gender-targeted behavior, the message of which is calculated to be sexually derogatory and demeaning. The Board’s rulings have been equally unmoved by racially derogatory and demeaning epithets and behavior, she pointed out.
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