Consolidated Communications, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 4, 2016 Decided September 13, 2016

No. 14-1135

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

Consolidated with 14-1140

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.

2

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 for the Court filed by Circuit Judge MILLETT.

Concurring opinion filed by Circuit Judge MILLETT.

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

3

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

4

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

5

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

1

The Union and Consolidated separately settled their dispute over

Weaver’s termination, so Consolidated does not seek review of that

aspect of the Board’s decision.

6

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).

7

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

8

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.

9

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.

10

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,

11

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,

12

Fetchak acknowledged that “the reason [Maxwell] leaned his

elbow on the van could have been because he was hit by the

van on his hip.” Id. at 587 (conceding that this “could be an

explanation” for the contact).

Importantly, both Fetchak and Maxwell indicated that

Maxwell’s encounter with the van was fleeting, not for “an

extended period of time,” J.A. 30, as Consolidated alleges.

See id. at 575 (Fetchak testifying that Maxwell leaned on the

hood “15 seconds or so. * * * It was less than a minute.”); id.

at 343 (Maxwell testifying it was “a minute at the most” from

when he first saw Flood to when Flood pulled out of the

driveway). There is also no evidence whatsoever that

Maxwell ever “struck” the van; in fact, Fetchak’s testimony

indicates otherwise. See id. at 580 (testifying that he did not

see Maxwell raise his arm to strike the van); id. at 586

(“[Maxwell] didn’t hit the van. * * * I don’t think he struck it.

* * * The definition of strike is making a striking motion, no,

I don’t believe he did that.”). Thus, it was not “hopelessly

incredible, self-contradictory, or patently unsupportable,”

Cadbury Beverages, 160 F.3d at 28 (internal quotation marks

omitted), for the ALJ to credit Maxwell’s account and find

that Flood hit him. See also E.N. Bisso & Sons, Inc. v. NLRB,

84 F.3d 1443, 1444–1445 (D.C. Cir. 1996) (“[C]redibility

determinations may not be overturned absent the most

extraordinary circumstances such as utter disregard for sworn

testimony or the acceptance of testimony which is on its

fac[e] incredible.”) (quoting Amalgamated Clothing and

Textile Workers Union v. NLRB, 736 F.2d 1559, 1563 (D.C.

Cir. 1984)).

Accepting those fact findings as supported by substantial

evidence, the Board did not err in concluding that Maxwell’s

actions were not the type of seriously coercive or intimidating

behavior that forfeits a worker’s protection under the National

13

Labor Relations Act. See, e.g., Consolidated Supply Co., Inc.

& Successor Consol. Supply of Madison, Inc., 192 NLRB

982, 988–989 (1971) (blocking a company truck

“momentarily” is “the sort of trivial, rough incident[] which

[is] to be expected during a long, contested strike where an

employer attempts to continue operating with nonstrikers”);

Medite of New Mexico, Inc. v. NLRB, 72 F.3d 780, 791 (10th

Cir. 1995) (a “brief incident” in which several picketers

gathered around a vehicle, called the driver a “scab,” and

struck the car with picket signs, “does not amount to the type

of serious conduct that would intimidate nonstriking

employees from crossing the picket line and exercising their

Section 7 rights”).

By contrast, the cases on which Consolidated relies all

involved more extreme or violent contact with and obstruction

of non-strikers’ vehicles than Maxwell was found to have

engaged in here. 2

2

See Siemens Energy & Automation, Inc., 328 NLRB 1175, 1176

(1999) (upholding discharge of striker that kicked a car passing

through the picket line and threw roofing tacks onto the roadway at

a vehicular entrance to the employer’s plant); GSM, Inc., 284

NLRB 174, 174–175 (1987) (“Conduct such as kicking, slapping,

and throwing beer cans at moving vehicles is intimidating enough

in and of itself,” and constitutes “violent conduct which may

reasonably tend to coerce or intimidate employees in the exercise of

their rights protected under the Act.”); Teamsters Local 812 (Pepsi-

Cola Newburgh), 304 NLRB 111, 115–117 (1991) (“The blocking,

hitting and kicking of vehicles by pickets” constituted picket line

misconduct, as did a “Family Day” in which striking employees

and their families carried out mass picketing, and placed themselves

and their small children in front of company trucks as they

attempted to leave.); CalMat Co., 326 NLRB 130, 135 (1998)

(denying reinstatement for striker who “use[d] himself as a barrier

14

Because substantial evidence supports the Board’s

finding that Maxwell did not engage in misconduct justifying

suspension, we deny that portion of Consolidated’s petition

and enforce the Board’s order as it applies to Maxwell.

B. Williamson

Eric Williamson, a switchman at Consolidated, was

suspended for two separate incidents during the strike.

Substantial evidence supported the Board’s determination that

neither instance of alleged misconduct was severe enough to

warrant his suspension.

One evening during the strike, Williamson and other

strikers stood along the driveway of the Rutledge Building

parking lot waving signs and chanting. At around 5:00 p.m.,

non-striking employee Dawn Redfern drove her car as part of

a slow caravan of vehicles leaving the parking lot. According

to Redfern, she was turning right out of the parking lot when

she heard a loud smack and immediately stopped her car.

Turning her interior light on and rolling down her car

window, she noticed that the passenger-side mirror was

folded in. Redfern addressed a group of picketers, yelling,

“you just hit my car.” J.A. 611. Williamson purportedly

responded, “No, you hit me.” Id. at 612. A Huffmaster

security guard came over and instructed Redfern to put her

window up and keep driving, which she did. Redfern’s

husband later pushed the mirror back to its normal position.

The car was not damaged.

so the driver would have no choice but to stop,” and then proceeded

to jump up onto the company truck, tear off the door handle, and try

to assault the driver and damage the truck as security guards and

police officers struggled to restrain him).

15

Williamson offered a different account of the incident.

He acknowledged that he had been standing near Redfern’s

car as she pulled out, and that he “made sure she [had] seen

[his] sign” and “tried to yell ‘scab.’” J.A. 443. Williamson

claimed that Redfern’s passenger-side mirror “grazed [his]

whistle on [his] chest,” and “flexed in and flexed back.” Id.

Redfern then allegedly “hammered on her brakes[,] rolled her

window down” and accused Williamson of breaking her

mirror. Id. Williamson responded that she had hit him, and

then he turned and walked away. He asked a Mattoon Police

Department officer at the picket line if the officer had seen

what had happened; the officer advised Williamson that he

had done nothing wrong. During his testimony, Williamson

repeatedly denied striking or pushing the mirror.

Williamson continued to picket at the Rutledge Building

the following day. Non-striker Tara Walters testified that, as

she arrived for work in the morning, Williamson looked

towards her, grabbed his crotch, and “lifted up as a mean,

hateful gesture.” J.A. 629–630. Williamson denied grabbing

his crotch, claiming that he just yelled “scab” at Walters. Id.

at 440–441.

Consolidated accused Williamson of “threatening and

intimidating a female * * * employee by striking her vehicle

while * * * standing on the picket line,” and of “sexual

harassment” in “making inappropriate gestures toward a

female * * * employee while she was parking her vehicle,”

J.A. 40. Williamson was suspended for violations of the

“handbook/workplace violence policy” and the

“handbook/sexual harassment policy.” Id. at 31–32.

The Board found no factual basis for Consolidated’s

conclusion that Williamson intentionally struck Redfern’s car

mirror. That decision is amply supported by the record—or,

16

more accurately, the utter lack of any record evidence that

Williamson intentionally struck Redfern’s mirror as she drove

by. Redfern herself conceded that she did not see “who did

it,” J.A. 619, or have any basis for concluding that

Williamson acted with intentionality to damage her mirror.

Video footage of the picket line around that time only shows

Redfern’s car driving by a group of strikers, with no footage

of anyone at all coming into contact with the mirror.

Accordingly, we uphold the Board’s determination that

Williamson did not engage in any misconduct with respect to

Redfern.

With respect to the Tara Walters incident, the Board

discredited Williamson’s testimony and found that he did

engage in misconduct by grabbing his crotch and making an

obscene gesture toward Walters. The Board also held,

however, that Williamson’s actions were not sufficiently

egregious to warrant suspension.

Consolidated argues (Br. 51) that the Board improperly

“inferred a legal standard of violence” as necessary to permit

discipline. That misreads the decision. The Board, in fact,

acknowledged that Williamson’s gesture was “totally uncalled

for, and very unpleasant,” but nonetheless concluded that his

actions could not objectively be perceived “as an implied

threat” of the kind that would coerce or intimidate a

reasonable employee from continuing to report to work during

the strike. J.A. 13. Given the rough-and-tumble nature of

picket lines and the fleeting nature of Williamson’s offensive

misconduct, we cannot conclude that the Board erred in its

assessment of the objective impact of this particular conduct

in this instance. See Allied Indus. Workers, 476 F.2d at 879

(“‘Impulsive behavior on the picket line is to be expected

especially when directed against nonstriking employees or

strike breakers.’”) (quoting Montgomery Ward & Co., 374

17

F.2d at 608 ); NMC Finishing v. NLRB, 101 F.3d 528, 532

(8th Cir. 1996) (noting the “rough and tumble economic

activity permitted by the policies established by Congress

through the NLRA”). 3

C. Hudson

At the time of the strike, Patricia Hudson was an Office

Specialist in the fleet department of Consolidated. In one day,

she purportedly participated in three back-to-back incidents of

driving her car in a manner that obstructed and trapped

vehicles in which non-striking workers were driving.

Concluding that Hudson had engaged in “harassing,

intimidating, threatening and reckless behavior” towards non-

strikers with “extremely dangerous vehicular activity on the

strike line and on the public roads,” J.A. 52, Consolidated

discharged Hudson for violation of the “handbook/workplace

violence and/or employee conduct and work rules policies,”

id. at 41.

The Board ruled that Hudson did not engage in any

misconduct that would warrant discharge. The Board was

two-thirds correct. Substantial evidence supports its findings

3

The Board ruled in the alternative that, even if Williamson’s

conduct had been serious enough to forfeit the protection of the

Act, Consolidated failed to meet its “burden” under Wright Line,

251 NLRB 1083 (1980), “to establish that it would have suspended

Williamson solely on the basis of the Tara Walters incident.” J.A.

13. That is a complete misstatement of the law. The Wright Line

test applies “when an employer has discharged (or disciplined) an

employee for a reason assertedly unconnected to protected

activity.” Shamrock Foods, 346 F.3d at 1135. It has no application

to striker misconduct cases. We accordingly do not credit the

Board’s alternative ground for its disposition.

18

that Hudson’s conduct toward non-strikers Sarah Greider and

Kurt Rankin was not misconduct. But in analyzing the

incident involving non-striker Troy Conley, the Board

misapplied the governing legal standard.

1. The Greider and Rankin Incidents

On the morning of December 10, 2012, Hudson and

Brenda Weaver walked the picket line at the Rutledge

Building. At around 10:00 a.m., Hudson and Weaver decided

to drive over to corporate headquarters to join the picket line

there. Hudson and Weaver drove separately, with Hudson in

front and Weaver behind.

Non-striker Sarah Greider left the Rutledge Building

parking lot at about that same time. Greider claims that, as

she approached the parking lot exit and prepared to turn onto

17th Street, Hudson pulled in front of her and Weaver pulled

up behind, blocking her in. Greider testified that Hudson

drove slowly and stopped and started several times, while

Weaver followed immediately behind so that Greider could

not back up. With parked cars and picketers on both sides of

the roadway, 17th Street had been reduced to one lane, so

Greider could not get around Hudson. After approximately

135–165 feet, Greider turned into the parking lot of an

automobile dealership and cut across to a parallel street.

Weaver did not follow her.

Greider called the Command Center and reported that

Hudson and Weaver had “blocked [her] in.” J.A. 653. She

later completed an incident report claiming that Hudson had

“refused to move or moved very slowly” in front of her car.

Id. at 47–49.

Jonell Rich, another non-striker who witnessed the

incident, testified that Hudson was in front of Greider going

19

“very slow, stopping, starting” on 17th Street, “and it stayed

that way until [Greider] was able to turn into the [auto

dealership] lot.” J.A. 689. Immediately after the incident,

Rich texted Greider: “I just saw what Pat Hudson did to

you.” Id. at 691.

Later that morning, Hudson and Weaver returned to the

Rutledge Building, with Hudson driving her car and Weaver

in the backseat. Around that time, manager Kurt Rankin

drove his car toward an exit of the Rutledge parking lot.

Rankin testified that Hudson’s car was parked to the side of

the road and surrounded by people, but that as soon as he

came up to the exit, “everybody turn[ed] around and got her

vehicle moving in front of [him]” by “motioning” her toward

the right. J.A. 312–313. A Huffmaster guard held Rankin up

as Hudson passed the exit. Rankin then turned right onto 17th

Street behind Hudson, who was driving very slowly.

Rankin testified that Hudson “stop[ped] the brakes,

move[d], stop[ped] the brakes,” so that he was continually

moving very slowly as Hudson “controll[ed] the speed at

which [he] could exit and get out of there.” J.A. 320. Hudson

testified, however, that she was driving slowly because there

were “picketers, cars parked on the side of the road, people

crossing the road, [and] people coming in and out of [the auto

dealership].” Id. at 529. When Rankin tried to speed up and

go around Hudson, she allegedly swerved over into the left

lane to prevent him from passing. As soon as he got past the

vehicles parked along the road, Rankin put his truck into four-

wheel drive and went around Hudson on the left by driving

through a ditch. Rankin later filled out incident reports about

the encounter.

Three non-striking employees—Tara Walters, Jonell

Rich, and Bernice Dasenbrock—witnessed the incident,

20

testifying that Hudson proceeded very slowly in front of

Rankin and moved to the left when Rankin tried to pass.

The Board ruled that there was no misconduct by Hudson

in either incident. The Board found that on both occasions

Hudson’s car ended up in front of the non-strikers by

coincidence due to the actions of the Huffmaster guard

directing traffic leaving the parking lot. The Board also found

that Hudson was driving slowly because of activity and

congestion on the road, not to harass or annoy Greider or

Rankin. Finally, the Board found that Hudson did not

repeatedly start and stop in the road in front of Greider and

Rankin. In so finding, the Board dismissed the witnesses’

testimony as inconsistent or motivated by animus towards

Hudson, and relied in part on the fact that neither the non-

strikers nor Consolidated reported the incidents to the

Mattoon Police Department.

Once again, substantial evidence supports the Board’s

conclusions. Video footage of the picket line shows

Huffmaster personnel directing cars out of the parking lot, and

in both incidents, a guard holds up the non-striker’s car as

Hudson’s car drives by on 17th Street. In addition, record

evidence supports the Board’s finding that Hudson’s slow

pace was due to all the activity and congestion in the roadway

rather than an intentional effort to harass or block Greider and

Rankin. For example, Police Chief Jeffrey Branson testified

that 17th Street is a “very well traveled road,” and that when

he first arrived at the Rutledge Building that morning, he

“was upset because the road was so congested.” J.A. 370–

371. Chief Branson also observed “a large crowd in the

roadway,” id. at 372, and noted that cars leaving the facility

were “taking care, driving slow, and they were all back to

back,” going “[t]wo miles an hour” “because the crowd was

so close,” id. at 373–374.

21

Similarly, Union representative Brad Beisner testified

that 17th Street was significantly narrowed during the strike

due to picketers parking along both sides of the road, and

people getting in and out of their cars to stay warm and dry.

Beisner also testified that members of the public and strikers

were “driving slowly” on 17th Street during the strike, and

that he would go five to ten miles an hour. J.A. 191. Video

footage of the area during the strike shows picketers walking

up and down the road holding signs and getting close to cars.

The Board also found no credible evidence that Hudson

had started and stopped repeatedly in front of Greider and

Rankin. Greider made no mention of Hudson stopping and

starting in her incident report, and there is no record of her

making such a claim to Consolidated managers at the

Command Center at the time. The video footage of the

Greider Incident, though limited, also does not show any

evidence of stopping and starting. Rich’s testimony was

inconsistent as to whether and how often Hudson stopped in

front of Greider. Compare J.A. 689 (testifying that she did

not know if Hudson stopped more than once or whether

Hudson actually came to a complete stop), with id. at 700–702

(testifying that she saw Hudson come to a complete stop in

front of Greider twice).

Rankin testified that Hudson would “stop the brakes,

move, stop the brakes,” J.A. 320, but only noted Hudson “at

some time totally stopp[ing]” in one incident report. Video

footage of the incident shows Hudson’s car slowing down

after Rankin’s truck turns behind it, and the two vehicles get

very close to each other as they drive up 17th Street, but

Hudson’s car does not ever fully stop within view of the

camera. Other testimony about the incident offered equivocal

support at best for Rankin’s version of events. Walters

testified that she did not see Hudson start and stop in front of

22

Rankin, and Rich mentioned the two vehicles coming to a

complete stop only when Rankin attempted to go around

Hudson at some point. 4

The Board also found conflicting evidence regarding

Rankin’s claim that Hudson moved to the left of the road to

prevent him from passing. The allegation was not in Rankin’s

incident reports, and Rankin never told Consolidated prior to

Hudson’s discharge that she swerved or that he twice tried to

pass her. To be sure, Walters and Rich testified that they saw

Hudson move to the left in front of Rankin, but the general

reliability of their testimony was undermined by noteworthy

gaps or inconsistencies. For example, neither Walters nor

Rich remembered any vehicles passing Hudson and Rankin

going south on the other side of 17th Street—something about

which Rankin, Weaver, and Hudson all testified.

When confronted with competing versions of evidence,

we defer to the Board’s credibility determinations absent the

starkest error. See NLRB v. Augusta Bakery Corp., 957 F.2d

1467, 1477 (7th Cir. 1992). We therefore hold that

4

Consolidated complains that the Board improperly imposed a

duty on the employer to contact the police about these incidents.

Such contact, while certainly not dispositive, can be a factor

relevant to witness credibility and the seriousness of the misconduct

in question. See, e.g., Precision Window Mfg., Inc. v. NLRB, 963

F.2d 1105, 1108 (8th Cir. 1992) (threatened employer’s call to

police was evidence of the threat); Axelson, Inc., 285 NLRB 862,

865 (1987) (the “threatening, intimidating character” of striker’s

statement was apparent where non-striker felt threatened enough to

report the incident to the police). Anyhow, the Board’s reliance on

that factor was limited in the Greider and Rankin incidents, and

substantial evidence would exist even without consideration of that

factor.

23

substantial evidence underlay the Board’s determinations that

Hudson did not engage in misconduct in the Greider and

Rankin incidents.

2. The Conley Incident

Between the Greider and Rankin Incidents, as Hudson

and Weaver were en route in separate cars to picket at

Consolidated’s corporate headquarters, Hudson noticed a

company truck on Route 16, a four-lane highway in Mattoon.

Manager Troy Conley was driving, and replacement worker

Larry Diggs was a passenger. Hudson testified that she

decided to follow the truck to see if it was traveling to a

commercial worksite where striking employees could set up

an ambulatory picket. Weaver followed her. What happened

next is strongly disputed.

Conley testified that he was driving east in the right lane

on Route 16, when he heard honking and saw Weaver drive

up in the left lane beside him with a picket sign in her

passenger seat. She went past Conley’s truck, signaled and

moved into the right lane in front of him. Less than a minute

later, Conley saw Hudson drive up in the left lane, pass him,

and proceed parallel to Weaver. Conley then “saw some hand

motioning going on by Pat [Hudson], and they immediately

slowed both cars down.” J.A. 537.5 Conley did not know

5

Hudson and Weaver testified that they had not previously

discussed following company vehicles, and were not able to

communicate with each other during the drive because Hudson did

not have a cell phone. Hudson had decided on her own to follow

Conley when she saw him turning onto Route 16. Weaver testified

that she followed without initially knowing what Hudson was

doing, but eventually noticed the company truck and assumed

24

how fast any of the cars were traveling, and he conceded that

Weaver and Hudson could have been driving the speed limit

while in front of him. 6

Conley testified that he slowed down, signaled, and went

into the left lane behind Hudson to see if she would let him

pass. She did not. Conley then moved back into the right

lane behind Weaver. At some point, three cars came up

behind Hudson in the left lane, and she moved in to the right

lane ahead of Weaver to allow them to pass her. Conley

signaled left and moved into the left lane behind the third car,

but again could not pass because Hudson moved back into the

left lane, intentionally cutting him off. Conley slowed down

and moved back into the right lane behind Weaver.

Conley subsequently turned off of the road, even though

it was not the most direct route to the job site, because he

“was feeling very harassed” and “was trying to avoid

conflict.” J.A 540. As a result, Conley had to drive a longer

route to his destination. Once he reached the job site, Conley

called the Command Center to report what had happened, and

later filled out an incident report.

Diggs, Conley’s passenger, testified that he saw one car

come speeding up beside their truck, stop and look for a

moment, and then pull in front of the truck. He testified that a

second car then pulled up beside the first car and “both of

them slowed down at a fairly fast pace.” J.A. 591. Diggs

explained that, “after [other] cars started stacking up behind

Hudson was following it to see if it was going to a commercial

worksite.

6

The speed limit on Route 16 in that area generally ranges from 45

to 55 mph.

25

[the truck],” he “saw some motion between the two cars that

were in front of us.” Id. at 592. The car in the left lane

(Hudson) pulled in front of the car in the right lane (Weaver)

to let the stacked cars come through. But when Conley

attempted to pass, the two cars “pulled back, paralleling each

other, and continued to block us from going at the normal

speed that we were trying to travel at.” Id. Diggs did not

know whether Hudson and Weaver were driving at the speed

limit and conceded that they could have been, but added that

“they were traveling much slower than everyone else was

traveling prior to them pulling in front of us.” Id. at 597.

Weaver and Hudson had a different recollection from

Conley and Diggs. According to Weaver, she had decided to

pull up beside the truck to “see who was driving * * *, so that

if we followed him to a site where we could picket, we could

report it back to the Union.” J.A. 413. She also said that she

wanted to find out if the driver was someone with “the

credentials to drive the type of truck he[] [was] driving to do

the work,” such as a commercial driver’s license, id., although

she conceded that she was unaware of any special

requirements to drive a pickup truck. 7 Weaver testified that

she was driving at “normal speed—the speed limit,” J.A. 403,

and that Hudson did not cut Conley off.

Hudson testified that she had no idea why Weaver passed

Conley or “what her intentions were,” but she also passed

Conley in order to “stay with Brenda [Weaver].” J.A. 481,

516–518. Hudson denied that she and Weaver paralleled their

vehicles in front of Conley to create a rolling blockade or that

she ever cut off Conley. Instead, Hudson said she just passed

Conley in the left lane and then pulled into the right lane

7

Conley testified to driving a four-wheel drive Chevy truck that did

not require a commercial driver’s license.

26

between Weaver and Conley. She also did not recall Conley

ever changing lanes or trying to pass.

Hudson and Weaver did not follow Conley after he

turned off of the road because they could not turn their cars

around at that point in the highway. Hudson and Weaver also

testified that, because Conley turned off, they each assumed

he was heading to a residential, not a commercial, location,

where strikers could not picket.

Consolidated argues that the Conley Incident, which

occurred on a public highway approximately three miles away

from the picket line, should not have been subject to the

striker misconduct standard at all, but instead should have

been evaluated as ordinary employee misconduct.

Consolidated also argues that, even under the striker

misconduct standard, Hudson’s behavior was sufficiently

serious to forfeit the protection of the National Labor

Relations Act. We reject Consolidated’s first argument, but

conclude that the Board committed reversible legal error in

evaluating Hudson’s misconduct.

On the question of whether the Conley incident qualified

as strike-related behavior, the General Counsel bears the

burden of showing that Hudson’s conduct occurred “in the

course of” the strike. Shamrock Foods, 346 F.3d at 1136;

Burnup & Sims, 379 U.S. at 23. Conduct need not occur at

the picket line to be “in the course of protected activity.”

Confrontations between striking and non-striking employees

are typically treated as strike-related conduct even when they

occur miles away from the picket line or strike site. See, e.g.,

Consolidated Supply Co., 192 NLRB at 988–989 (following

company truck onto roadway, forcing it to drive slowly, and

blocking it); Axelson, 285 NLRB at 865 (following non-

striker home, cruising slowly past his house, and parking

27

close enough to see and be seen); Gibraltar Sprocket Co., 241

NLRB 501, 501–502 (1979) (following non-striker’s car);

Otsego Ski-Club-Hidden Valley, Inc., 217 NLRB 408, 413

(1975) (same); Federal Prescription Serv., Inc., 203 NLRB

975, 993 (1973) (same).

For example, in Detroit Newspaper Agency d/b/a Detroit

Newspapers v. NLRB, 342 NLRB 223, 236–237 (2004), a

striker had parked in front of a Cracker Barrel Store along

with his wife and two young children when he noticed a

company van parked nearby. The striker and his family

engaged in a confrontation with the driver in which they

repeatedly called him a “scab” and slapped the driver’s van.

Id. at 236. The employer discharged the striker, reasoning

that, “because there was no picket line or any strike-related

activity going on in the vicinity,” the striker-misconduct

analysis should not be applied. Id. The Board disagreed,

finding that the striker “was on strike at the time of this

incident, which involved his attempt to remonstrate with an

employee concerning his status as a strike replacement, and

that in doing so he was exercising rights protected by the

Act.” Id. The Board further explained that, to obtain

protection under the striker-misconduct standard, “[t]here is

no requirement that” the employee “be a part of some kind of

formal strike-related activity.” Id. The Board also noted “that

the [employer] considered [the discharged employee] to be a

striker, and that it handled the matter according to the

procedures it had set up for reporting, investigating, and

taking action on incidents of alleged misconduct by striking

employees.” Id.

In other words, geography by itself is not dispositive of

whether conduct is strike related. The central consideration

instead is whether the employee undertakes the conduct for a

purpose related to or in furtherance of the strike. See Burnup

28

& Sims, 379 U.S. at 23–24. Moreover, Consolidated’s

reliance on location is particularly inapt here because the

company had facilities in multiple locations and worksites in

still more.

Accordingly, Hudson’s conduct falls comfortably within

the zone of strike-related activity covered by the National

Labor Relations Act. The Conley incident took place when

Hudson was traveling between picket sites and was scoping

out potential alternative locations for ambulatory pickets.

Moreover, Consolidated itself must have understood that

strike-related purpose because it treated the Conley Incident

as striker misconduct, dealing with Hudson through its

established procedures for such conduct. 8

However, we vacate the Board’s determination that

Hudson did not engage in misconduct punishable under the

Act because the Board’s determination rests on a

misapplication of the Clear Pine Mouldings standard and the

Burnup & Sims burden of proof.

The central legal question before the Board was whether

Hudson’s driving behavior—on a public highway with

vehicles traveling at speeds of 45 to 55 mph, and with

uninvolved third-party vehicles in the area—“may reasonably

tend to coerce or intimidate” Consolidated employees like

Conley and Diggs. Clear Pine Mouldings, 268 NLRB at

1046. The burden of proof on that question rests squarely on

the General Counsel’s shoulders. The General Counsel must

establish either that no misconduct occurred, or that the

8

Accordingly, the distinction Consolidated attempts to draw

between following Conley and being in front of Conley on Route 16

is irrelevant, since Hudson was engaged in conduct related to the

strike either way.

29

misconduct was not of sufficient severity to forfeit the law’s

protection of striker activity. See Axelson, 285 NLRB at 864;

Schreiber Mfg., 725 F.2d at 416.

The Board misapplied that standard here. The Board

decision stressed the “absence of violence.” J.A. 12; see id. at

9–10. But that asked the wrong question. The legal test to be

applied is straightforwardly whether the striker’s conduct,

taken in context, “reasonably tended to intimidate or coerce

any nonstrikers.” Batesville Casket Co., 303 NLRB 578, 581

(1991); see Clear Pine Mouldings, 268 NLRB at 1045–1046

(expressly rejecting a requirement of violence and instead

adopting an “objective test” of “whether the misconduct is

such that, under the circumstances existing, it may reasonably

tend to coerce or intimidate employees in the exercise of

rights protected under the Act”) (emphasis added) (internal

quotation marks and citations omitted). While violence or its

absence can be relevant factors in that reasonableness

analysis, the Board had to take the next analytical step. It had

to 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. See,

e.g., Oneita Knitting Mills, Inc. v. NLRB, 375 F.2d 385, 392

(4th Cir. 1967) (strikers who drove their car in front of a non-

striker’s car, would not permit the non-striker to pass, and

shouted obscene remarks and names had engaged in

misconduct “which was calculated to intimidate the non-

strikers, and which was inherently dangerous in that it

involved obstruction of the public highway”); International

Paper Co., 309 NLRB 31, 36 (1992) (striker engaged in

“hazardous driving designed * * * to intimidate replacement

employees and other of Respondent’s personnel,” including

following non-strikers cars “dangerously close” with his

truck, driving and weaving alongside them closely, and “after

30

passing them, driving at a speed designed to assure only a

small separation between the two vehicles thus creating a

danger of collision”), enf’d sub nom. Local 14, United

Paperworkers Int’l Union v. NLRB, 4 F.3d 982 (1st Cir. 1993)

(Table).

Compounding its error, the Board held that “any

ambiguity as to whether [Hudson’s misconduct] was serious

enough to forfeit the protection of the Act should be resolved

against [Consolidated].” J.A. 13. That improperly shifted the

burden of proof from the General Counsel to Consolidated.

Because the General Counsel bears the burden of proving that

the misconduct is shielded by the Act, any ambiguity or

equivocation in the evidence on the question of the conduct’s

seriousness “must be resolved in favor of the employer[.]”

Axelson, 285 NLRB at 864. 9

Those legal errors in application of the striker misconduct

standard require that we grant this portion of Consolidated’s

petition for review, vacate the Board’s decision on Hudson’s

discharge, and remand for further proceedings. 10

IV

9

That the Board had articulated the burden of proof properly earlier

in the decision, J.A. 13, is of no help when the law is flatly

misstated in the dispositive analysis of a specific argument.

10

We take the Board at its word that, on remand, it will not “rely

on the [ALJ’s] speculation as to what might have motivated Troy

Conley’s testimony,” given the total absence of record evidence

that could support the ALJ’s findings of bias, anger, or a desire to

see Hudson terminated. J.A. 1 n.2.

31

Consolidated argues lastly that the Board failed to make

the necessary findings of fact and provided no legal analysis

in determining that Consolidated violated Sections 8(a)(5) and

(1) of the Act, 29 U.S.C. §§ 158(a)(5) & (1), in unilaterally

eliminating the Office Specialist-Facilities position. That

claim has no merit.

It is well-established that an employer commits an unfair

labor practice if it makes a unilateral change in a term or

condition of employment involving a mandatory subject of

bargaining without bargaining to impasse. See Brewers and

Maltsters, Local Union No. 6 v. NLRB, 414 F.3d 36, 41–42

(D.C. Cir. 2005); Litton Financial Printing Div. v. NLRB, 501

U.S. 190, 198–199 (1991). The elimination of bargaining-

unit jobs is a mandatory subject of bargaining within the

meaning of Section 8(a)(5) of the Act. See Finch, Pruyn &

Co., Inc., 349 NLRB 270, 277 (2007) (“The Board has long

held the elimination of unit jobs, albeit for economic reasons,

is a matter within the statutory phrase ‘other terms and

conditions of employment’ and is a mandatory subject of

bargaining[.]”) (citation omitted); Regal Cinemas, Inc. v.

NLRB, 317 F.3d 300, 310–312 (D.C. Cir. 2003) (company

violated Section 8(a)(5) in eliminating bargaining-unit

positions and transferring work to managers without first

bargaining with union).

Here, the Board specifically found that Consolidated

decided in January or February 2014 not to fill Brenda

Weaver’s job as the Office Specialist in the Facilities

Department, and assigned some of the duties of that position

to another position. The Board also found that Consolidated

did not provide the Union with advance notice or an

opportunity to bargain about its decision to eliminate the

position, which reduced the size of the bargaining unit.

32

Because Consolidated had a duty under settled law to

notify and bargain with the Union before reassigning job

duties and eliminating the Office Specialist-Facilities

position, the Board properly concluded that Consolidated

violated Section 8(a)(5). Those essential facts are all that is

necessary to find a violation of the duty to bargain. See

Finch, Pruyn & Co., 349 NLRB at 277 (“It is undisputed that

the [employer] never bargained with [the union] over the

elimination of the [unit] position. The [employer]’s unilateral

action and failure to fulfill its bargaining obligation is thus

plainly established on the record before us.”).

Consolidated argues that the parties stipulated that

Weaver’s position of Office Specialist was never

“eliminated,” and that Consolidated continues to employ

Office Specialists in the bargaining unit. But that misreads

the stipulation. It does not say that the Office Specialist-

Facilities position was preserved. The stipulation instead

reiterates that Consolidated planned to abandon filling the

position and to transfer Weaver’s duties to other employees. 11

That Consolidated continues to employ Office Specialists

elsewhere in the company is beside the point. The bargaining

unit is still down by one if Weaver’s position is eliminated.

11

See J.A. 55 (“February 26, 2013 was the first time the Employer

informed the Union of the decision not to fill one of the vacated

Office Specialist positions.”); id. at 56 (Consolidated later

attempted to “discuss/bargain over not filling Weaver’s position”

and “offered several options regarding the Office Specialist duties

that Weaver previously performed, including 1) paying the Office

Specialist who was performing new duties a premium; 2) diffusing

the duties even further and sharing with other Office Specialists; or

3) moving the duties to a Company affiliate.”).

33

Consolidated also contends that it has responded and

agreed to the Union’s request for bargaining. Perhaps. But

that was only after Consolidated had already decided to

eliminate the Office Specialist-Facilities position. That does

not suffice. The bargaining must come before the position is

eliminated. See Brewers and Maltsters, 414 F.3d at 42 (“[A]n

employer’s unilateral change in a term or condition of

employment without first bargaining to impasse violates

section 8(a)(5) and (1).”) (emphasis added); International

Ladies’ Garment Workers Union v. NLRB, 463 F.2d 907, 919

(D.C. Cir. 1972) (“[N]o genuine bargaining * * * can be

conducted where [the] decision has already been made and

implemented.”) (citation omitted) (alterations in original).

V

For the foregoing reasons, we grant Consolidated’s

petition for review and deny the Board’s application for

enforcement with respect to Consolidated’s discharge of

Patricia Hudson. We deny the petition for review and enforce

the Board’s order in all other respects, and remand for further

proceedings on the Hudson discharge consistent with this

opinion.

So ordered.

1

MILLETT, Circuit Judge, concurring: As the opinion

explains, our deferential standard of review and the record in

this case support the conclusion that Eric Williamson’s

offensive, but fleeting and isolated, obscene gesture did not

amount to striker misconduct so egregious that it forfeited the

protection of the National Labor Relations Act.

I write separately, though, to convey my substantial

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. The sexually and racially disparaging conduct

that Board decisions have winked away encapsulates the very

types of demeaning and degrading messages that for too much

of our history have trapped women and minorities in a

second-class workplace status.

While the law properly understands that rough words and

strong feelings can arise in the tense and acrimonious world

of workplace strikes, targeting others for sexual or racial

degradation is categorically different. Conduct that is

designed to humiliate and intimidate another individual

because of and in terms of that person’s gender or race

should be unacceptable in the work environment. Full stop.

Yet 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.

According to Board precedent, such conduct was supposedly

not extreme enough to constitute a “threat.” For example, in

Calliope Designs, 297 NLRB 510 (1989), the Board ruled that

a striker calling a non-striker a “whore” and a “prostitute,”

2

and adding that she was “having sex with [the employer’s]

president,” was not “serious misconduct” and thus was not

sanctionable, id. at 521. That same striker repeatedly called a

second female employee “a ‘whore’ and told [her] she could

earn more money by selling her daughter, another nonstriker,

at the flea market.” Id. Completely protected, the Board

decision said.

Similarly, in Gloversville Embossing Corp., 297 NLRB

182 (1989), the Board’s ruling deemed it acceptable for a

striker to yell at female non-strikers to come see “a real man”

and then to “pull[] down his pants and expose[] himself,” id.

at 193–194. And in Robbins Company, 233 NLRB 549

(1977), the Board’s order required the reinstatement of a

striker who “made crude and obscene remarks and

suggestions regarding sex, including an invitation to ‘make

some extra money at his apartment that night’” to a female

employee, id. at 557. See also Nickell Moulding, 317 NLRB

826, 828 (1995), enforcement denied, NMC Finishing v.

NLRB, 101 F.3d 528, 532 (8th Cir. 1996) (reinstating striker

who targeted a non-striker by carrying on the picket line a

homemade sign reading “Who is Rhonda F [with an X

through F] Sucking Today?”).

The Board’s rulings have been equally unmoved by

racially derogatory and demeaning epithets and behavior.

See, e.g., Airo Die Casting, Inc., 347 NLRB 810, 811–812

(2006) (protecting a striker who raised both middle fingers

and shouted “fuck you nigger” at an African-American

security guard); Cooper Tire & Rubber Co. and United Steel,

Paper and Forestry, Rubber Manufacturing, Energy, Allied

Industrial and Service Workers International Union, 363

NLRB No. 194 (2016) (requiring reinstatement of picketer

who called out: “Did you bring enough KFC for everybody?”

and “Hey, anybody smell that? I smell fried chicken and

3

watermelon,” in reference to African-American replacement

workers).

Nothing in the Board’s decisions has offered any

plausible justification, and I can conceive of none, for

concluding that the rights of workers—all workers—are

protected by turning picket lines into free zones for sexually

or racially abusive and demeaning conduct. Instead, the

Board’s rulings dismiss such abhorrent behavior as

“unpleasantries” that are just part and parcel of the

contentious environment and heated language that ordinarily

accompany strike activity. Gloversville, 297 NLRB at 194

(“[N]onstriking employees and replacement workers must be

prepared to contend with some unpleasantries in a strike

situation. * * * [The striker’s] conduct, while censurable, is

within the bounds of permissible picket line misconduct[.]”);

see also Airo Die Casting, Inc., 347 NLRB at 812 (“[The

striker’s] conduct on the picket line, the use of obscene

language and gestures and a racial slur, standing alone

without any threats or violence, did not rise to the level where

he forfeited the protection of the Act.”); Polynesian

Hospitality Tours, 297 NLRB 228, 252 (1989) (“While one

can sympathize with [the female manager] because of the

rudeness and vulgarity demonstrated toward her, * * * [none

of the activity] ever reached the level that it would * * * even

come close to removing an employee from the protection of

the Act * * * [since no misconduct] went beyond the use of

epithets, vulgar words, profanity, vulgar gestures, and the

like.”).

There is no question that Emily Post rules do not apply to

a strike. “[S]ome types of impulsive behavior must have been

within the contemplation of Congress when it provided for the

right to strike.” Allied Indus. Workers, AFL-CIO Local Union

No. 289, 476 F.2d 868, 879 (D.C. Cir. 1973). Accordingly,

4

when looking at the “rough and tumble of an economic

strike,” NMC Finishing v. NLRB, 101 F.3d 528, 531 (8th Cir.

1996), the Board can quite appropriately make allowance for

“a trivial rough incident,” Milk Wagon Drivers Union v.

Meadowmoor Dairies, Inc., 312 U.S. 287, 293 (1941), and

can certainly leave room for the “normal outgrowths of the

intense feelings developed on picket lines,” NLRB v. Wichita

Television Corp., 277 F.2d 579, 585 (10th Cir. 1960). See

also Old Dominion Branch No. 496, Nat’l Ass’n of Letter

Carriers v. Austin, 418 U.S. 264, 272–273 (1974) (noting that

federal labor policies “favor[] uninhibited, robust, and wide-

open debate in labor disputes,” and that “freewheeling use of

the written and spoken word * * * has been expressly fostered

by Congress and approved by the [Board]”); id. at 283

(“Federal law gives a union license to use intemperate,

abusive, or insulting language without fear of restraint or

penalty if it believes such rhetoric to be an effective means to

make its point.”).

So giving strikers a pass on zealous expressions of

frustration and discontent makes sense. Heated words and

insults? Understandable. Rowdy and raucous behavior?

Sure, within lawful bounds. But conduct of a sexually or

racially demeaning and degrading nature is categorically

different. Calling a female co-worker a “whore” or exposing

one’s genitals to her is not even remotely a “normal

outgrowth[]” of strike-related emotions. In what possible way

does propositioning her for sex advance any legitimate strike-

related message? And how on earth can calling an African-

American worker “nigger” be a tolerated mode of

communicating worker grievances?

Such language and behavior have nothing to do with

attempted persuasion about the striker’s cause. Nor do they

convey any message about workplace injustices suffered,

5

wrongs inflicted, employer mistreatment, managerial

indifference, the causes of employee frustration and anger, or

anything at all of relevance about working conditions or

worker complaints. Indeed, such behavior is flatly forbidden

in every other corner of the workplace because it is

dangerously wrong and breathes new life into economically

suffocating and dehumanizing discrimination that we have

labored for generations to eliminate. Brushing that same

behavior off when it occurs during a strike simply legitimates

the entirely illegitimate, and it signals that, when push comes

to shove, discriminatory and degrading stereotypes can still be

a legitimate weapon in economic disputes.

Tellingly (and thankfully), it seems to be an isolated few

who undertake such abusive behavior. The overwhelming

majority of those involved in strikes are able to effectively

communicate their grievances and viewpoints without resort

to racial- or gender-based attacks. That just proves that there

is no legitimate communicative or organizational role for such

misconduct.

And by the way, the Board is supposed to protect the

rights of all employees covered by the Act. See Rights We

Protect, National Labor Relations Board,

https://www.nlrb.gov/rights-we-protect (last visited Aug. 17,

2016) (“The National Labor Relations Board protects the

rights of most private-sector employees to join together, with

or without a union, to improve their wages and working

conditions.”). Holding that such toxic behavior is a routine

part of strikes signals to women and minorities both in the

union and out that they are still not truly equals in the

workplace or union hall. For when the most important

labor/management battles arise and when the economic

livelihood of the employer and the employees is on the line,

the Board’s decisions say that racial and misogynistic

6

epithets, degrading behavior, and race- and gender-based

vilification are once again fair game.

We have cautioned the Board before against assuming

that “the use of abusive language, vulgar expletives, and

racial epithets” between employees “is part and parcel of the

vigorous exchange that often accompanies labor relations.”

Adtranz ABB Daimler-Benz Transp., N.A., Inc. v. NLRB, 253

F.3d 19, 24 (D.C. Cir. 2001) (internal quotation marks

omitted). It is both “preposterous” and insulting to ensconce

into labor law the assumption that “employees are incapable

of organizing a union or exercising their other statutory rights

under the National Labor Relations Act without resort to

abusive or threatening language” targeted at a person’s gender

or race. Id. at 26; see also id. (expressing concern about a

Board decision indicating that “it is perfectly acceptable to

use the most offensive and derogatory racial or sexual

epithets, so long as those using such language are engaged in

union organizing or efforts to vindicate protected labor

activity”).

In this case, the Board also reasoned that crotch-grabbing

must be condoned because it was not a threat to the female

employee that Williamson targeted. Maybe not in this

instance given the absence of record evidence documenting an

adverse effect on Walters. But the problem is that the Board’s

decisions seem in too many cases to answer that question

from the perpetrator’s perspective, oblivious to the dark

history such words and actions have had in the workplace

(and elsewhere). See, e.g., Airo Die Casting, Inc., 347 NLRB

at 812 (finding testimony from management officials about

the reaction of a security guard targeted with a racial slur—

“visibly shaken and offended”—to be “somewhat

exaggerated” because “anyone examining the actual [video]

recording of [the striker’s] activity would be hard pressed to

7

see any threatening or aggressive conduct”); Polynesian

Hospitality Tours, 297 NLRB at 252 (“[W]hile * * * one must

concede that employees’ conduct was somewhat rude and

vulgar, it seems scarcely surprising * * * that some of them

became angry at [the manager], referred to her as a ‘bitch,’

and that some of them yelled that she should be fired[.] * * *

[T]he actions of the employees in this case [are] valid protests

of a supervisor’s illegal actions against them.”); Cooper Tire

& Rubber Co., 363 NLRB No. 194 (finding that, “even

though [the picketer’s] statements were offensive and racist,

and certainly may have been disrespectful to the dignity and

feelings of African-American replacement workers, there is

no evidence to establish that the statements contained overt or

implied threats, that they coerced or intimidated employees in

the exercise of their rights protected under the Act, or that

they raised a reasonable likelihood of an imminent physical

confrontation”).

Nor do the Board’s decisions grapple with the enduring

effects in the workplace of such noxious language and

behavior. The assumption that such gender- and race-based

attacks can be contained to the picket line blinks reality. It

will often be quite hard for a woman or minority who has

been on the receiving end of a spew of gender or racial

epithets—who has seen the darkest thoughts of a co-worker

revealed in a deliberately humiliating tirade—to feel truly

equal or safe working alongside that employee again. Racism

and sexism in the workplace is a poison, the effects of which

can continue long after the specific action ends. Cf. Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (“‘One can

readily envision working environments so heavily polluted

with discrimination as to destroy completely the emotional

psychological stability of minority group workers[.]’”)

(quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971),

cert. denied, 406 U.S. 957 (1972)); Harris v. Forklift Sys.,

8

510 U.S. 17, 22 (1993) (“A discriminatorily abusive work

environment, even one that does not seriously affect

employees’ psychological well-being, can and often will

detract from employees’ job performance, discourage

employees from remaining on the job, or keep them from

advancing their careers.”).

Accordingly, if the Board’s decisions insist on letting the

camel’s nose of racial and gender discrimination into the

work environment, the Board should also think long and hard

about measuring the “threats” associated with such sexually

or racially degrading behavior from the perspective of a

reasonable person in the target’s position, and how nigh

impossible it is to cabin racism’s and sexism’s pernicious

effects. Cf. Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 81 (1998) (Under Title VII, “the objective severity of

harassment should be judged from the perspective of a

reasonable person in the plaintiff’s position, considering ‘all

the circumstances.’”) (quoting Harris, 510 U.S. at 23).

To be sure, employees’ exercise of their statutory rights

to oppose employer practices must be vigorously protected,

and ample room must be left for powerful and passionate

expressions of views in the heated context of a strike. But

Board decisions’ repeated forbearance of sexually and racially

degrading conduct in service of that admirable goal goes too

far. After all, the Board is a component of the same United

States Government that has fought for decades to root

discrimination out of the workplace. Subjecting co-workers

and others to abusive treatment that is targeted to their gender,

race, or ethnicity is not and should not be a natural byproduct

of contentious labor disputes, and it certainly should not be

accepted by an arm of the federal government. It is 2016, and

“boys will be boys” should be just as forbidden on the picket

line as it is on the assembly line.