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.