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International Brotherhood of Electrical Workers, AFL-CIO v. National Labor Relations Board

United States Court of Appeals, Seventh Circuit

August 9, 2019

Local 702, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner,
v.
National Labor Relations Board, Respondent, and Consolidated Communications, doing business as Illinois Consolidated Telephone Company, Intervening-Respondent.

          Argued May 16, 2019

          Petition for Review of an Order of the National Labor Relations Board. Nos. 14-CA-094626 and 14-CA-101495.

          Before Bauer, Hamilton, and St. Eve, Circuit Judges.

          Bauer, Circuit Judge.

         Pat Hudson was a long time employee of Consolidated Communications ("Consolidated"), who was discharged due to strike-related misconduct. Following an appeal to the D.C. Circuit Court, the National Labor Relations Board (the "Board") issued a supplemental decision concluding that Consolidated did not violate § 8(a)(3) of the National Labor Relations Act (the "Act"), as codified at 29 U.S.C. § 158(a)(3). For the reasons that follow, we affirm.

         I. BACKGROUND

         In December, 2012, Consolidated was negotiating with Local 702, International Brotherhood of Electrical Workers, AFL-CIO (the "Union"), after the expiration of a collective-bargaining agreement. When negotiations stalled, the Union ordered a strike. Hudson, who had worked for Consolidated for 39 years, was a Union member and participated in the strike.

         A. The Offending Conduct

         On the morning of December 10, 2012, Hudson was driving to the Consolidated facility to participate in the picketing of its corporate headquarters when she saw a company truck on Route 16. She decided to follow the truck so she could set up an ambulatory picket at the job site as encouraged by the Union. Hudson was followed by another striking employee, Brenda Weaver, in a second vehicle.

         When they caught up with the Consolidated truck, Weaver passed Hudson and the truck in the passing lane before pulling in front of the truck. Next, Hudson pulled alongside the truck and drove in the passing lane parallel to the truck until she accelerated and drove parallel to Weaver who was in front of the truck. After some time, traffic began to stack up behind Hudson who was driving parallel to Weaver.

         Hudson accelerated, passed Weaver and pulled into the right lane to allow traffic to pass. At this time the Consolidated truck switched lanes, joined the line of passing cars and attempted to overtake Weaver and Hudson. Before it could pass Hudson, she changed lanes and intentionally blocked the Consolidated truck from passing. Afterwards, the Consolidated truck returned to the right lane behind Weaver where it remained for approximately a mile before it exited Route 16 to avoid any further incident. The entire incident took place at highway speeds.

         On December 13, 2012, after the strike ended, Hudson was suspended pending an investigation of her conduct on December 10, and for two other strike-related incidents-neither of which are at issue here. On December 17, 2012, at a meeting between her and Consolidated where her Union representative was present, she was terminated for her dangerous vehicular activity in connection with the strike.

         B. NLRB Hearing and Appeal

         Following Hudson's dismissal, the Union filed a claim alleging Consolidated violated the Act by terminating Hudson for protected conduct. The Board's Acting General Counsel filed a complaint and an administrative law judge ("ALJ") held a hearing. The ALJ agreed with the Union and determined that none of the conduct cited warranted Hudson's discharge. The ALJ further found that Hudson's highway conduct was not egregious enough ...


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