NLRA Is a Dead End for Reckless Driver

 

By Roger Achille November 6, 2019
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​A union striker who engaged in dangerous vehicular activity on a highway with drivers who weren't on strike was not entitled to the protections under the National Labor Relations Act (NLRA) and therefore was lawfully fired, the 7th U.S. Circuit Court of Appeals ruled.

In December 2012, Consolidated Communications was negotiating with Local 702, International Brotherhood of Electrical Workers, AFL-CIO, after the expiration of a collective bargaining agreement. When negotiations stalled, the union ordered a strike. 

On the morning of Dec. 10, 2012, a union member who had worked for Consolidated for 39 years was driving to the Consolidated facility to participate in picketing when she saw a company truck. She decided to follow the truck so that she could set up an ambulatory picket at the jobsite as encouraged by the union. 

The union member was followed by another striking employee in a second vehicle. Both employees pulled in front of the truck and drove parallel to each other in front of the truck. Traffic began to stack up, so the union member accelerated, passed the other employee and pulled into the right lane to allow traffic to pass. 

At this time, the Consolidated truck switched lanes and joined the line of passing cars in the left lane. Before it could pass the cars driven by the striking employees, however, the union member changed lanes and intentionally blocked the truck from passing.

Afterward, the truck returned to the right lane behind the employees, where it remained for approximately a mile before it exited to avoid any further incident. The entire incident took place at highway speeds. On Dec. 17, 2012, the union member was fired for her dangerous vehicular activity in connection with the strike.

The union claimed that Consolidated violated the NLRA by firing the employee for protected conduct. The union contended 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 the union member did not intend to impede or intimidate but only follow so she could set up an ambulatory picket at the jobsite.

However, the National Labor Relations Board (NLRB) found that her actions were "calculated to intimidate the non-striking employees," "inherently dangerous" and "sufficiently egregious" to lose protection under the NLRA.

The 7th Circuit examined whether the NLRB's decision was "based on substantial evidence and if its legal conclusions have a reasonable basis in law." The court labeled the conduct as sufficient to forfeit NLRA protection, noting that she was traveling on a major thoroughfare at a high rate of speed, purposely impeding the truck's progress, and only relented when the truck exited the highway and she was no longer able to pursue.

[SHRM members-only toolkit: Preparing for the Possibility of Union Organizing]

The appeals court also considered that the Consolidated driver testified that he felt unsafe and how, in an effort to avoid further incident or danger, he exited the highway and took an alternate route to the jobsite. Despite the union's insistence that the employee's conduct was not intended to intimidate or endanger the employees and that she only intended to follow them to set up an ambulatory picket, the court emphasized the fact that she was following them from the front and purposely impeded their progress.

Local 702, IBEW, AFL-CIO v. NLRB, 7th Cir., No. 18-3322 (Aug. 9, 2019).

Professional Pointer: Employees who engage in serious misconduct in the course of a strike, as well as other work-related union activity, may be disciplined. This can include the refusal to reinstate strikers to their former jobs.

Roger Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I. 

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