NLRB Finds That Employer Improperly Disciplined Employee Who Obscenely Grabbed His Crotch in Front of Female Co-Worker

On July 3, 2014, the National Labor Relations Board (NLRB) handed down a decision in the case of Consolidated Communications d/b/a Illinois Consolidated Telephone Co. and Local 702, Int'l Brotherhood of Electrical Workers, AFL-CIO, Case Nos. 14-CA-094626 and 14-CA-101495, which challenged the suspension of two union employees (janitor Michael Maxwell and switchman Eric Williamson) and the discharge of two other union employees (office specialists Brenda Weaver and Pat Hudson) for their mid-strike misconduct. The NLRB affirmed the decision of the Administrative Law Judge and determined that all four employees' disciplinary actions violated the National Labor Relations Act. 

The employer, Consolidated Communications d/b/a Illinois Consolidated Telephone Co. (Illinois Consolidated), is a multi-state telecommunications company. All worksites relevant for purposes of this case are located in Illinois. The union, Local 702 of the International Brotherhood of Electrical Workers, and Illinois Consolidated were parties to a collective bargaining agreement for approximately 175 bargaining unit employees. The agreement expired on November 15, 2012, and several weeks later the union voted to strike. During the strike, unit employees picketed worksites and Illinois Consolidated hired security guards. Non-striking employees were advised to file police reports for any property damage and to call local police if they had any problems driving to alternate locations.

The Union offered to return to work unconditionally on the evening of December 11, and most strikers returned to work two days later. Upon an unconditional offer to return to work, former economic strikers are entitled to reinstatement to their former or substantially equivalent positions, unless the employer has a good faith belief that a former striker engaged in strike misconduct that "may reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights, including their right to refrain from striking or from supporting the strikers."

Following the strike, Illinois Consolidated suspended Maxwell, Williamson, Weaver and Hudson for misconduct related to the strike. Weaver and Hudson were subsequently discharged on December 17. 

As follows is a brief summary of the misconduct analyzed in the NLRB's decision:

• Striking Non-Unit Employee's Car and Making Obscene Gesture Toward Non-Unit Employee. Williamson was suspended for two days for hitting a non-unit employee's car mirror (the car did not sustain any damage) as the employee left company premises and for making an obscene gesture at a non-unit employee. More specifically, when the non-unit employee looked at Williamson, he "grab[bed] his crotch." Williamson denied doing so but admitted yelling the word "scab" at the employee. Illinois Consolidated suspended Williamson for two days for "workplace violence" and "sexual harassment."
  
  While the Board found that Williamson engaged in misconduct with his obscene gesture, it also determined that a two-day suspension was unwarranted. The NLRB noted that while Williamson's gesture was "totally uncalled for, and very unpleasant," it was not a form of actionable sexual harassment under Title VII, did not carry an implied threat of violence or future mistreatment toward a non-unit employee, and likely did not discourage her from reporting to work during the strike.

• Harassing and Intimidating Non-Unit Employees with Operation of Motor Vehicles. Union employees Hudson and Weaver were discharged for three instances of "harassment" and "intimidation" of non-unit employees involving workplace violence and/or violation of company conduct and work rules policies. All three instances involved claimed conduct towards non-unit employees while operating either private or company-owned motor vehicles. Because of conflicting statements about the incidents, the NLRB weighed witness testimony and made a number of credibility determinations. The NLRB ultimately concluded that there was no evidence of misconduct by Weaver, and the only potential evidence of misconduct by Hudson was by preventing a non-unit employee from passing her on the road for one and a half minutes (approximately 1.5 miles). This was not, said the NLRB, enough to warrant her termination in light of the fact that she was a 39-year employee with no prior disciplinary record. 
  
  The NLRB also noted that following of a non-unit employee in a company van to determine whether he was traveling to a commercial worksite (and thus whether they should picket there) was a form of protected activity.

• Impeding Non-Unit Employee from Leaving Company Premises. Maxwell was also disciplined for impeding a non-unit employee, Leon Flood, as he left a company garage. When Flood stopped his van in front of the picket line, Maxwell made contact with the van, gave Flood the finger, and yelled an obscenity. Maxwell's write-up indicated that he was suspended for violation of Illinois Consolidated workplace violence policy. The NLRB affirmed the ALJ's finding that Maxwell did not commit workplace violence, and only briefly impeded Flood's progress in leaving the company garage. The NLRB also noted that, had the company talked to a particular non-unit employee, it would have determined that Maxwell did not intentionally hit the van and there was no reason to believe that Maxwell threatened Flood.
  
  In sum, the NLRB ordered, among other things, the reinstatement of Weaver and Hudson, the rescission of Maxwell and Williamson's suspensions, along with making the four employees whole for loss of earnings and other benefits.

Bottom Line

In Consolidated Communications, the NLRB closely analyzed a number of instances of mid-strike misconduct. Ultimately, conflicting testimony, varying levels of witness credibility, lack of police reports and long-term employees' clean disciplinary records led the NLRB to determine that either the mid-strike misconduct did not occur as claimed or did not support the discipline issued. Employers should take note of the NLRB's considerations in Consolidated Communications before disciplining or discharging an employee for mid-strike misconduct to give the particular employment action a better chance of surviving NLRB scrutiny.

A copy of this NLRB decision is available to the public on the NLRB Board Decisions web page.