Consolidated Communications d/b/a Illinois Consolidated Telephone Company

National Labor Relations Board - Board Decisions

Oct 2, 2018

367 NLRB No. 7 (N.L.R.B. 2018)

367 NLRB No. 7
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Consolidated Communications d/b/a Illinois Consoli-
dated Telephone Company and Local 702, Inter-
national Brotherhood of Electrical Workers,
AFL–CIO. Cases 14–CA–094626 and 14–CA–
101495
October 2, 2018
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
This case is before us on remand from the United States
Court of Appeals for the District of Columbia Circuit. On
July 3, 2014, the National Labor Relations Board issued a
Decision and Order adopting Administrative Law Judge
Arthur J. Amchan’s decision finding, in part, that the Re-
spondent violated Section 8(a)(3) and (1) of the National
Labor Relations Act by discharging Patricia Hudson on
December 17, 2012, for her strike-related activity. 360
NLRB 1284 (2014). In reaching that conclusion, the
Board adopted the judge’s finding that Hudson did not en-
gage in misconduct warranting forfeiture of the Act’s pro-
tection when driving at highway speed proximate to a
company truck occupied by two of the Respondent’s man-
agers.1
The Respondent petitioned the United States Court of
Appeals for the District of Columbia Circuit for review.
On September 13, 2016, the court denied enforcement of
the Board’s Order with respect to Hudson’s discharge.
Consolidated Communications Inc. d/b/a Illinois Consol-
idated Telephone Co. v. NLRB, 837 F.3d 1 (D.C. Cir.
2016). The court rejected the Board’s determination that
Hudson’s conduct did not lose statutory protection, find-
ing that the Board had erroneously focused exclusively on
“the absence of violence.” The court described the
Board’s erroneous reasoning as follows:
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 [nonstrikers Troy] Con-
ley and [Lawrence] Diggs. The burden of proof on
that question rests squarely on the General Counsel’s
shoulders. The General Counsel must establish either

1 Specifically, the judge found that “[i]f [Hudson] engaged in miscon-
duct with regard to Conley, by preventing him from passing her, even if
this was for 1-1/2 minutes and for 1-1/2 miles, this conduct was not egre-
gious enough to warrant her termination, particularly in light of the fact
that no misconduct occurred, or that the misconduct
was not of sufficient severity to forfeit the law’s pro-
tection of striker activity.
The Board misapplied that standard here. The
Board decision stressed the “absence of violence.”
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 in-
timidate or coerce any nonstrikers.” While violence
or its absence can be relevant factors in that reasona-
bleness analysis, the Board had to take the next ana-
lytical step. It had to consider, consistent with prece-
dent, all of the relevant circumstances, and evaluate
the objective impact on a reasonable non-striker of
misconduct committed on a high-speed public road-
way with third-party vehicles present.
Id. (emphasis in original) (internal citations omitted).
The court vacated the Board’s determination that Hud-
son’s discharge was unlawful and remanded the case for
the Board to apply the analysis set forth in Clear Pine
Mouldings2 and to ascertain whether, under “all of the rel-
evant circumstances,” Hudson’s strike-related conduct
“reasonably tended to intimidate or coerce any nonstrik-
ers.” Consolidated Communications, 837 F.3d at 18 (em-
phasis in original). Consistent with its determination that
the General Counsel bears the burden of proof, the court
instructed that any ambiguity in the evidence was to be
resolved in the Respondent’s favor. Id. at 19.
On March 10, 2017, the Board notified the parties that
it had accepted the remand and invited them to file posi-
tion statements. The Respondent, the General Counsel,
and the Charging Party each filed a position statement.
The Board has delegated its authority in this proceeding
to a three-member panel.
Having carefully considered the record and the position
statements—and after properly examining all of the rele-
vant circumstances and placing the burden of proof on the
General Counsel, as directed by the District of Columbia
Circuit and required by our precedent—we conclude that
Hudson’s misconduct was of sufficient severity to lose the
Act’s protection. Accordingly, we will dismiss the com-
plaint allegation relating to her discharge.
Facts
During a December 2012 strike in support of union bar-
gaining demands, striker Hudson, with fellow striker
Brenda Weaver in a separate car behind her, spotted a
that she was a 39-year employee with no prior disciplinary record.” Id.
at 1295. The Board adopted this finding without comment.
2 Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984), enfd. 765 F.2d
148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1986).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
company truck travelling on Route 16 in Mattoon, Illinois.
Route 16 is a 4-lane divided highway, two lanes in each
direction, where the speed limit ranges from 45 to 55 miles
per hour. Hudson, with Weaver joining, decided to follow
the company truck to see if it would lead to the location of
a commercial worksite where the Union could also picket
(an “ambulatory picketing” site, in Board parlance). Driv-
ing the company truck was Troy Conley, a manager based
in Mattoon. Lawrence Diggs, a manager from Texas, was
a passenger in the truck. Both were working in the field
to cover for strikers.
Once the strikers caught up to the company truck,
Weaver used the left lane to pass both Hudson and the
company truck and then returned to the right lane in front
of the company truck. Hudson then also passed the com-
pany truck on the left, but remained in the left lane, trav-
elling alongside Weaver at approximately the speed limit.
By driving side by side, Hudson and Weaver prevented
any cars from passing. After cars queued up behind Hud-
son in the left lane, she moved to the right lane in front of
Weaver to allow them to pass. Conley, who recognized
the strikers when they passed, began to transition into the
left lane in an attempt to follow the other cars that had
passed the strikers. At that point, with Conley, Weaver,
and Hudson all moving at highway speeds, Hudson re-
turned to the left lane and again began driving next to
Weaver, in what could only be an intentional move to
block the company truck. After braking, Conley returned
to the right lane, where he had no choice but to stay behind
Hudson and Weaver for approximately one mile until he
was able to exit off of Route 16 in order to take a different,
longer way to the worksite.
Discussion
The sole issue to be resolved on remand is whether Hud-
son, in the course of strike-related activity, engaged in
misconduct that lost the Act’s protection.3 Nothing in our
statute gives a striking employee the right to maneuver a
vehicle at high speed on a public highway in order to im-
pede or block the progress of a vehicle driven by a non-
striker, even if the maneuver is executed at or below the
speed limit. Indeed, the Board has repeatedly held that the
conduct of strikers blocking or impeding nonstrikers in ve-
hicles proceeding (presumably at much lesser speeds) into
or out of a company entrance is unprotected or, if attribut-
able to a union, unlawfully coercive. There is no apparent

3 The court agreed with the prior Board decision that Hudson was en-
gaged in protected ambulatory strike activity when following the com-
pany truck and did not engage in other misconduct of which she had been
accused. Consolidated Communications, 837 F.3d at 18. Thus, these
matters are established as the law of the case. We also do not address
the separate issue whether Weaver’s driving behavior went beyond the
Act’s protection. In the underlying decision, the Board found that
reason why the result should be different for blocking or
impeding nonstrikers on a public highway. In this respect,
the court’s remand opinion in this case quoted with ap-
proval the Board’s statement in Clear Pine Mouldings that
“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 exam-
ple, to threaten those employees who, for whatever reason,
have decided to work during the strike, [or] to block access
to the employer’s premises.”4
Therefore, even though Hudson’s actions were other-
wise protected, the totality of circumstances in this case
requires the Board to find that the Act’s protection was
lost because of her serious misconduct. Specifically, re-
garding the “ultimate issue” that governs this case, it is
beyond doubt that Hudson’s actions “would reasonably
tend to coerce or intimidate employees in the exercise of
Section 7 rights, including the right to refrain from strik-
ing.”5
It is readily apparent that Hudson’s driving would rea-
sonably cause Conley and Diggs to fear for their safety.
Two cars, driven at highway speeds by employees partic-
ipating in a labor dispute with their common employer,
passed the company truck and then drove side by side,
with Hudson’s car blocking the truck and any other vehi-
cle from properly passing in the left lane. When traffic
backed up, Hudson moved over to let other cars pass be-
fore deliberately returning to the left lane and blocking
Conway’s attempt to pass. By these actions, Hudson sent
a clear message to Conley and Diggs that she was inten-
tionally using her vehicle to obstruct or impede their pas-
sage. In other words, her actions would not only reasona-
bly be viewed as intimidating, they were calculated to in-
timidate and cannot possibly be excused as some momen-
tary emotional response in the context of a strike’s height-
ened tensions. Not only was preventing the truck from
passing in the wake of other cars dangerous, it would rea-
sonably raise concern about what Hudson might do next.
Any employees would reasonably fear that Hudson’s next
maneuver could cause a collision that would jeopardize
their lives or the lives of other motorists on the highway.
Our finding here is consistent with the Fourth Circuit’s
analysis of similar misconduct in Oneita Knitting Mills,
Inc. v. NLRB, 375 F.2d 385 (4th Cir. 1967), where the
Weaver’s discharge violated Sec. 8(a)(3) and (1), 360 NLRB at 1296.
As the court noted, the Respondent settled the Weaver allegation with
the Union. 837 F.3d at 6 fn. 1. In any event, a determination that Weaver
did not engage in serious misconduct would not affect our finding that
Hudson did.
4 837 F.3d at 8, quoting from 268 NLRB at 1047.
5 Universal Truss, Inc., 348 NLRB 733, 735 (2006).
CONSOLIDATED COMMUNICATIONS D/B/A ILLINOIS CONSOLIDATED TELEPHONE COMPANY 3
court reasoned that the Respondent could lawfully deny
reinstatement to strikers who slowly drove their car in
front of a nonstriker in a manner that prevented her from
passing because (1) the misconduct “was calculated to in-
timidate,” and (2) “obstruction of the public highway” was
“inherently dangerous.” Id. at 392.6 Hudson’s conduct
was more egregious than that of the Oneita strikers. Like
them, she obstructed the public highway with driving that
was calculated to intimidate, but she did so at highway
speed and with a maneuver that actually cut off the non-
strikers from passing in their truck.7 Causing nonstrikers
to reasonably fear for their safety is all that is necessary to
lose protection under Clear Pine Mouldings, and the Gen-
eral Counsel failed to prove Hudson did not do so.
Thankfully, Hudson’s maneuvers did not cause an acci-
dent. However, it is inherently dangerous to make such
moves at highway speeds in the presence of other vehicles
and to obstruct or impede their progress. It is also of no
consequence that Hudson’s highway-speed maneuvers
and obstruction of the company truck was relatively brief,
lasting only a minute or so until Conley chose to avoid
continued intimidation by turning onto an alternate route
to his destination. In the circumstances presented here, a
miscalculation by anyone during that minute—though oc-
curring in an instant—could have caused multiple fatali-
ties or serious injuries.8
In 2017, more than 40,000 Americans died on our na-
tion’s roadways,9 and more than 1,000 automobile fatali-
ties occurred in Illinois alone.10 We believe the Board
must interpret our Act in light of the public safety interests

6 The court discussed this as “the Glisson incident.” It noted that the
Oneita strikers involved shouted obscene remarks at the nonstriker driv-
ing a car and called her a scab, but in finding the strikers’ conduct un-
protected the court relied solely on the fact it “involved obstruction of
the public highway.” Id.
7 It does not matter that Hudson was driving within legal speed limits
and that Conley may have sought to exceed those limits in attempting to
pass. Sec. 7 does not confer police authority on strikers to enforce traffic
laws.
8 Cases where the Board has found that employees did not lose the
Act’s protection involved much different circumstances than present
here. In Batesville Casket Co., 303 NLRB 578 (1991), the judge discred-
ited the manager’s testimony that strikers “boxed in” his company van
and instead found that the strikers were merely traveling on the same
road, often at a distance from the van, to return to the employer’s facility
and “did nothing to impede the progress of the van.” Id. at 580. Here,
by contrast, Hudson deliberately blocked the company truck with her
highway-speed maneuvers. Moreover, simply following nonstrikers at a
safe distance, as employees did in Altorfer Machinery Co., 332 NLRB
130 (2000), and MGM Grand Hotel, 275 NLRB 1015 (1985), plainly
does not have a similar objective tendency to intimidate or coerce non-
strikers. Gibraltar Sprocket Co., 241 NLRB 501 (1979)—a case involv-
ing strikers following a fast-driving nonstriker and once pulling along-
side to motion the nonstriker to pull over—predated the Board’s decision
in Clear Pine Mouldings, supra, where the Board first adopted the rea-
sonable tendency to coerce or intimidate standard applicable here and
at stake here. The protected right to strike does not confer
immunity on employees who engage in high-speed ma-
neuvering on public highways in a manner that interferes
with other vehicles and puts targeted nonstrikers as well
as innocent third-party drivers in fear of becoming a fatal-
ity statistic.
ORDER
The complaint allegation that the Respondent unlaw-
fully discharged employee Patricia Hudson is dismissed.
Dated, Washington, D.C. October 2, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
Patricia Hudson was a 39-year employee with an un-
blemished work record when she was fired by her em-
ployer for strike-related conduct. Two of the three inci-
dents cited by the employer as lawful grounds for her dis-
charge have now been definitively rejected by the Board
and the U.S. Court of Appeals for the District of Columbia
Circuit.1 Left to consider, after the court’s remand of the
rejected that violence is required to lose protection. As the Board in Gi-
braltar Sprocket was not applying the same standard that we apply here,
that decision has no bearing on this case even if it purported to make a
finding under all of the circumstances presented there.
There are cases where the Board found more extreme reckless driving
unprotected. See International Paper Co., 309 NLRB 31, 36 (1992)
(weaving alongside and almost bumping nonstrikers off the road and
driving in front in a manner that risked causing a rear-end collision),
enfd. sub nom. Local 14, United Paperworkers International Union v.
NLRB, 4 F.3d 982 (1st Cir. 1993); Teamsters Local 812 (Pepsi-Cola
Newburgh Bottling Co.), 304 NLRB 111, 111, 117 (1991) (almost caus-
ing an accident by braking in front of a nonstriker); PRC Recording Co.,
280 NLRB 615, 663–664 (1986) (braking and zigzagging in front of non-
strikers, causing one to swerve into the median). Nothing in this prece-
dent suggests that anything less reckless would not reasonably tend to
intimidate or coerce a targeted nonstriker.
9 Adrienne Roberts, U.S. Road-Death Rates Remain Near 10-Year
High, Wall St. J. (Feb. 15, 2018), https://www.wsj.com/articles/death-
rates-on-u-s-roads-remain-near-10-year-high-1518692401.
10 Illinois Department of Transportation, Illinois Fatal Crash Data for
2017: A Snapshot View, http://apps.dot.illinois.gov/Fa-
talCrash/Home/CrashData/2017 (last viewed June 7, 2018).
1 Consolidated Communications, Inc. v. NLRB, 837 F.3d 1, 14–15
(D.C. Cir. 2016) (finding substantial evidence supporting the Board’s
conclusion that Hudson did not engage in the misconduct alleged).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
case, is a highway-driving incident during which Hudson
prevented a manager’s company truck from breaking the
speed limit to pass her, by staying in the left lane for a mile
or less and for not more than 1 minute.2
As framed by the court, the “central legal question be-
fore the Board [is] 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’
… employees” like those in the manager’s truck.3 The
burden of proof was on the 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.”4 Here, the court explained, the issue is
whether Hudson’s “conduct, taken in context, ‘reasonably
tended to intimidate or coerce any nonstrikers,’”and the
Board must “consider, consistent with precedent, all of the
relevant circumstances.”5
Reversing the administrative law judge, the majority
now determines that Hudson’s conduct was unprotected.
But its conclusion is based on a failure to carefully con-
sider all of the record evidence, as the Board is required to
do. Instead, the majority focuses narrowly on the fact that
the driving incident took place at highway speeds, adopt-
ing what approaches a per se rule that strike-related con-
duct on the highway is “inherently dangerous” and so al-
ways unprotected. While Hudson’s conduct may have an-
noyed or frustrated managers, it never posed any genuine
danger to them, and it had no reasonable tendency to in-
timidate or coerce them.
I.
Hudson’s contested conduct arose during a December 6
to December 13, 2012 strike, which occurred after negoti-
ations for a successor collective-bargaining agreement had
stalled. On December 10, Hudson and fellow striker
Brenda Weaver6 were driving separate cars to the em-
ployer’s headquarters on Route 16 in Mattoon, Illinois,
where they planned to picket. Route 16 runs between Mat-
toon and Charleston, Illinois, and in certain sections wid-
ens to a 4-lane divided road lined by businesses and inter-
spersed with traffic lights.
En route to headquarters, Hudson noticed a company
truck traveling east on Route 16, away from the Mattoon

2 In the underlying decision (I did not participate), the Board had
adopted the judge’s finding that the employer unlawfully discharged
Hudson for her strike-related conduct, finding that her actions remained
protected under the Act. Consolidated Communications, 360 NLRB
1284 (2014). On appeal, the court agreed that Hudson’s conduct was
strike-related activity, 837 F.3d at 17–18, but found that the Board erro-
neously focused solely on an “absence of violence” when concluding that
Hudson’s conduct did not lose the Act’s protection. Id. at 18. The court
remanded the case to the Board to instead apply the “all of the circum-
stances” analysis in Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984),
facility. Heeding her union’s advice that strikers could
conduct ambulatory picketing at the Respondent’s com-
mercial worksites, Hudson followed the truck to deter-
mine if it was going to a location where the union could
picket. Weaver, who could not communicate with Hud-
son, assumed that Hudson had decided to follow the truck
to see where it was going. The company truck, driven by
Director of Network Engineering Troy Conley, with pas-
senger Lawrence Diggs (a manager from Texas), was trav-
eling from Mattoon to Charleston to repair a commercial
cell tower.
After following Conley for about 1-½ miles, Hudson
and Weaver caught up with the company truck, and
Weaver passed Hudson and Conley. Without lingering,
Weaver signaled, and moved safely into the right lane
ahead of Conley. Hudson passed Conley soon thereafter
and was momentarily parallel to Weaver’s vehicle. There
is no evidence that Hudson or Weaver traveled below the
speed limit at any time. While Conley and Diggs testified
that Hudson and Weaver may have slowed down in front
of them, Conley conceded that they could have been trav-
eling at the speed limit and was not sure if he put on his
brakes. As posited by the judge, any slowdown may have
been the result of reduced speed limits at an approaching
stoplight or the fact that Conley, to this point, had been
driving considerably above the posted speed limit—up to
69 miles per hour in the 45 or 55 mile-per-hour zones.
Hudson next moved into the right lane in front of
Weaver to allow cars behind her to pass. Conley began to
transition into the left lane to pass Hudson, but before he
could do so, Hudson moved back into the left lane. The
judge determined that when changing lanes, Hudson did
not “cut [Conley] off” or cause him to slam on his brakes.
Instead, Conley returned to the right lane and soon exited
onto County Road 1200 E to take an alternative route to
the jobsite. As the judge determined, in all, Hudson “pre-
vented Conley from passing [her] by staying in the left
lane, for a mile or less and not more than 1 minute.” Con-
ley did not see Hudson and Weaver after he exited Route
16.
Following these events, Conley called Sam Jurka, the
employer’s manager of field operations to report the inci-
dent. Conley thereafter completed an incident report,
enfd. 765 F.2d 148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1986), to
determine whether Hudson’s conduct lost the protection of the Act. Id.
at 19.
3 837 F.3d at 18.
4 Id.
5 Id. (emphasis in original).
6 The employer also discharged Weaver for her part in these events.
In the underlying decision, the Board found that Weaver’s discharge vi-
olated Sec. 8(a)(3) and (1), 360 NLRB at 1296. The employer settled the
Weaver allegation with the union. 837 F.3d at 6 fn. 1.
CONSOLIDATED COMMUNICATIONS D/B/A ILLINOIS CONSOLIDATED TELEPHONE COMPANY 5
which the employer presented to Hudson at her termina-
tion meeting on December 17.
II.
As the District of Columbia Circuit observed, the
Board’s seminal decision in Clear Pine Mouldings, supra,
establishes the legal test to be applied in determining
whether an employee has engaged in “serious strike mis-
conduct,” i.e., misconduct “such that, under the circum-
stances existing, it may reasonably tend to coerce or in-
timidate employees in the exercise of the rights protected
under the [National Labor Relations] Act.”7 Although
Clear Pine Mouldings involved verbal threats,8 the Board
has applied its test to many kinds of asserted strike mis-
conduct, including conduct involving motor vehicles. The
Board’s prior decisions in that area, which appropriately
turn on their particular facts, do not dictate a result here.
Carefully considered in light of precedent, however, the
record evidence makes clear that Hudson did not engage
in serious strike misconduct.
The Board has found that certain conduct involving mo-
tor vehicles did, indeed, amount to serious strike miscon-
duct––but this case is easily distinguishable. In Interna-
tional Paper Co.,9 for example, a striker lost protection
where he tailgated striker replacements dangerously close,
weaving his car alongside them, and placing them in dan-
ger of being forced off the road or into oncoming traffic.
The Board adopted the judge’s finding that this driving
behavior, which ultimately resulted in a criminal charge
for driving to endanger, ‘‘exceed[ed] the bounds of peace-
ful and reasoned conduct’’ and had a reasonable tendency
to coerce and intimidate the strike replacements. 309
NLRB at 36. Here, there is no evidence at all that the
managers’ truck was in any danger of being forced off the
road or into oncoming traffic, and no suggestion that Hud-
son engaged in anything like criminal behavior.
Nor is this a case where a striker’s braking created a
dangerous situation for other employees.10 When Hudson
changed into the left lane in front of the managers’ truck,
she did so with enough space that she did not cut off Con-
ley, cause him to slam on the brakes, or otherwise risk
causing an accident. And because Hudson continued at
the speed limit when she was in front of Conley, there was

7 268 NLRB at 1045–1046.
8 The Clear Pine Mouldings Board rejected what it characterized as
the Board’s prior “per se rule that words alone can never warrant [loss of
statutory protection] … in the absence of physical acts.” Id. at 1046.
9 309 NLRB 31, 36 (1992), enfd. sub nom. Local 14, United Paper-
workers International Union v. NLRB, 4 F.3d 982 (1st Cir. 1993). The
District of Columbia Circuit here cited International Paper as illustrative
of “misconduct committed on a high-speed public roadway with third-
party vehicles present.” 837 F.3d at 18.
10 See Teamsters Local 812 (Pepsi-Cola Newburgh Bottling Co.), 304
NLRB 111, 117 (1991) (finding that a union violated Sec. 8(b)(1)(A)
no impediment to the flow of traffic that could have en-
dangered less attentive drivers behind Conley and Hud-
son. Hudson’s driving was potentially frustrating, but it
was also fleeting: she prevented Conley from passing for
no more than a mile and no longer than a minute. This
fact, says the majority, is “of no consequence” because “a
miscalculation by anyone during that minute … could
have caused multiple fatalities or serious injuries.” There
is no actual evidence, however, supporting such dire spec-
ulation. Simply put, on this record, there was no even re-
motely close call here––and certainly nothing that would
have reasonably suggested to the managers that Hudson
was engaged in reckless or deliberately dangerous driving
threatening them with harm, conduct that would have
tended to coerce or intimidate them (as opposed to merely
annoying them).
Finally, the situation here is unlike that presented in
Oneita Knitting Mills,11 a Fourth Circuit decision, issued
before Clear Pine Mouldings, in which the court disagreed
with the Board’s determination that strikers had not lost
the Act’s protection. There, the Board’s trial examiner
(today, administrative law judge) explained that the non-
striking employee, Glisson, had testified that she drove
home for lunch during her 30-minute lunch break and that
[two strikers] would pull their car in front of hers and not
let her pass, adding, “they just crept along and they would
turn around and laugh and call me scab.” They also used
words which, according to Glisson, a lady would not care
to repeat. She did not state which of the two was the
driver. There was never any physical contact between the
cars and Glisson was unable to state whether other cars
were in the area.
Oneita Knitting Mills, Inc., 153 NLRB 51, 62 (1965).
Reversing the Board, the Fourth Circuit determined that
the two strikers “repeatedly drove their car in front of [the
nonstriker’s] car and would not permit her to pass, and that
[the strikers] shouted obscene remarks and called her a
‘scab.’”12 The court concluded, as a matter of law, “that
this misconduct … was calculated to intimidate the non-
strikers and … was inherently dangerous in that it in-
volved obstruction of the public highway.”13 Here, in con-
trast, Hudson did not “repeatedly” drive her car in front of
when a striker repeatedly braked in front of a non-striker in a manner that
almost caused an accident); PRC Recording Co., 280 NLRB 615, 663–
664 (1986) (finding serious misconduct where a striker passed two non-
striker vehicles and, while in front of them, applied his brakes and zig-
zagged, forcing one vehicle to swerve into the median) enfd. 836 F.2d
289 (7th Cir. 1987).
11 Oneita Knitting Mills, Inc. v. NLRB, 375 F.2d 385 (4th Cir. 1967).
The District of Columbia Circuit here cited Oneita Knitting as illustra-
tive. 837 F.3d at 18.
12 Id. at 392.
13 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
the managers’ truck, and she shouted no obscenities or in-
sults. Nor can she fairly be said to have engaged in “ob-
struction of the public highway.” Unlike the Oneita Knit-
ting strikers, Hudson did not “creep along” (in the non-
striker’s phrase): she drove at the speed limit. The major-
ity insists that Hudson “was intentionally using her vehicle
to obstruct or impede [the managers’] passage”––but this
would be meaningfully true only if the managers had some
legitimate need to exceed the speed limit.
Against the weight of the record evidence, then, the ma-
jority insists that Hudson’s driving was “calculated to in-
timidate”––a baseless conclusion that the administrative
law judge, who saw and heard the witnesses in this case,
most certainly did not draw. Rather, this case fits com-
fortably with prior Board decisions finding that striker
conduct involving motor vehicles did not lose the Act’s
protection.14 Had Hudson cut off the managers’ truck, had
she persisted in driving in front of them for longer than she
did, had she violated traffic laws, had her driving been ac-
companied by threatening words or gestures, had road
conditions been hazardous, had she had prior hostile en-
counters with the managers––add some or all of these cir-
cumstances, and this would be a different, more difficult
case. But these factors are missing from the record, and
citing alarming statistics about roadways death (as the
majority does) is no proper substitute for analyzing the ev-
idence with care, as we are required to do.
In Clear Pine Mouldings, the Board rejected an earlier
per se rule that strikers’ verbal threats could never be seri-
ous strike misconduct. In this case, the District of Colum-
bia Circuit similarly rejected the Board’s original sugges-
tion that the absence of “violence” was the single disposi-
tive factor here. Now, ironically, the majority seemingly
makes the same sort of error––focusing on the “inherent
danger” of highway driving to the practical exclusion of
the other circumstances present.
Hudson’s driving incident may not have been admira-
ble, or even advisable, but considering “all the circum-
stances”––as the Court of Appeals has instructed us to do–
the General Counsel proved that it was not misconduct se-
vere enough to cost Hudson the protection of the Act and
so her job. Because substantial evidence simply does not
support the majority’s contrary conclusion, I dissent.
Dated, Washington, D.C. October 2, 2018
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD

14 For example, in Batesville Casket Co., 303 NLRB 578, 580–581
(1991), the Board adopted the judge’s finding that a striker did not en-
gage in serious misconduct when he pulled up alongside a company van
at a stop light, deliberately pulled in front of it, and continued in this
position for a short distance until the van detoured to avoid him. Ac-
knowledging that vehicles might be used in some situations by strikers
to intimidate non-strikers, the judge looked to the context in which the
incident occurred and found that the incident was very short in duration,
the striker did not impede the progress of the van, and there was no evi-
dence that he or other strikers operated their vehicles “in any reckless,
unsafe, or threatening manner so as to conclude that their actions reason-
ably tended to intimidate or coerce any nonstrikers.” Id. at 581, citing
MGM Grand Hotel, 275 NLRB 1015 (1985).
Similarly, the Board found that strikers did not lose the protection of
the Act where, in the course of strike activity, they followed another
driver, see Altorfer Machinery Co., 332 NLRB 130, 142–143 (2000), or
pulled up alongside a car at a high rate of speed and motioned for the
nonstriker to pull over, Gibraltar Sprocket Co., 241 NLRB 501, 502
(1979). Gibraltar Sprocket pre-dates Clear Pine Mouldings, but the
Board applied a standard that aligns closely with the present standard––
explaining that “each incident of alleged misconduct must be assessed in
light of the surrounding circumstances, including the severity and fre-
quency of the involved employee’s actions,” 241 NLRB at 501–502
––and so the case remains instructive.