Seyfarth Synopsis: Though the NLRA provides robust protections for striking employees, the Board’s decision in Consolidated Communications demonstrates some of the limits of those protections. On October 2, 2018, the NLRB held that inherently dangerous acts calculated to intimidate do not fall within the broad scope of the NLRA’s protections.

The National Labor Relations Board, in a recent decision, has provided further guidance on the limits of protections for strike-related activities. In Consolidated Communications, Cases 14-CA-094626, 14-CA-101495 (NLRB Oct. 2, 2018), the Board found that striking employees’ use of vehicles to intentionally obstruct non-striking employees traveling on the road was an “inherently dangerous” activity calculated to intimidate non-strikers, and thus forfeited the National Labor Relation Act’s protections.

The facts underlying the case arose while the company was engaged in a contentious strike with its union, IBEW Local 702. During the course of the strike, two striking employees, Hudson and Weaver, were traveling on a highway when they spotted and approached a company vehicle driven by two managers. The striking employees drove alongside each other in front of the company truck in order to prevent it from passing. After some time, a queue of vehicles grew behind one of the blocking employees, who then decided to transition into the lane in front of the company truck to allow cars to pass. The company truck attempted to pass as well, but Hudson returned to the left lane to intentionally block its path. As a result, one of the managers driving the truck filed a complaint and Hudson was fired for her actions.

Initially, the Board adopted the Administrative Law Judge’s determination that Hudson’s activities were protected by Section 8(a)(3) of the Act, focusing on the fact that her actions were nonviolent. The D.C. Circuit reversed the Board’s decision, explaining that while the absence of violence was relevant, the Board failed to focus on the central legal question of whether the strikers’ actions may reasonably tend to coerce or intimidate. The D.C. Circuit remanded the case to the Board for further proceedings.

On remand, the Board held in a 2-1 decision that Hudson’s actions were unprotected under the Act. The Board found that Hudson and Weaver sent a clear message to the managers that they were intentionally using their vehicles to obstruct or impede passage. From those acts, the Board reasoned, Hudson and Weaver’s actions were calculated to intimidate the two managers. Further, the Board concluded that intentionally obstructing a public highway jeopardized the lives of all motorists driving on the highway at that time, and was therefore “inherently dangerous.” Because Hudson and Weaver’s actions were both inherently dangerous and calculated to intimidate, their actions were not protected by the NLRA.