In the

United States Court of Appeals

For the Seventh Circuit

No. 18-3322

LOCAL 702, INTERNATIONAL

BROTHERHOOD OF ELECTRICAL

WORKERS, AFL-CIO,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

and

CONSOLIDATED COMMUNICATIONS,

doing business as Illinois

Consolidated Telephone Company,

Intervening-Respondent.

Petition for Review of an Order of the

National Labor Relations Board.

Nos. 14-CA-094626 and 14-CA-101495. 
2 No. 18-3322

ARGUED MAY 16, 2019 — DECIDED AUGUST 9, 2019

Before BAUER, HAMILTON, and ST. EVE, Circuit Judges.

BAUER, Circuit Judge. Pat Hudson was a long time employee

of Consolidated Communications (“Consolidated”), who was

discharged due to strike-related misconduct. Following an

appeal to the D.C. Circuit Court, the National Labor Relations

Board (the “Board”) issued a supplemental decision concluding that Consolidated did not violate § 8(a)(3) of the National

Labor Relations Act (the “Act”), as codified at 29 U.S.C.

§ 158(a)(3). For the reasons that follow, we affirm.

I. BACKGROUND

In December, 2012, Consolidated was negotiating with

Local 702, International Brotherhood of Electrical Workers,

AFL-CIO (the “Union”), after the expiration of a collectivebargaining agreement. When negotiations stalled, the Union

ordered a strike. Hudson, who had worked for Consolidated

for 39 years, was a Union member and participated in the

strike.

A. The Offending Conduct

On the morning of December 10, 2012, Hudson was driving

to the Consolidated facility to participate in the picketing of its

corporate headquarters when she saw a company truck on

Route 16. She decided to follow the truck so she could set up

an ambulatory picket at the job site as encouraged by the

Union. Hudson was followed by another striking employee,

Brenda Weaver, in a second vehicle.
No. 18-3322 3

When they caught up with the Consolidated truck, Weaver

passed Hudson and the truck in the passing lane before pulling

in front of the truck. Next, Hudson pulled alongside the truck

and drove in the passing lane parallel to the truck until she

accelerated and drove parallel to Weaver who was in front of

the truck. After some time, traffic began to stack up behind

Hudson who was driving parallel to Weaver.

Hudson accelerated, passed Weaver and pulled into the

right lane to allow traffic to pass. At this time the Consolidated

truck switched lanes, joined the line of passing cars and

attempted to overtake Weaver and Hudson. Before it could

pass Hudson, she changed lanes and intentionally blocked the

Consolidated truck from passing. Afterwards, the Consolidated truck returned to the right lane behind Weaver where it

remained for approximately a mile before it exited Route 16 to

avoid any further incident. The entire incident took place at

highway speeds.

On December 13, 2012, after the strike ended, Hudson was

suspended pending an investigation of her conduct on December 10, and for two other strike-related incidents—neither of

which are at issue here. On December 17, 2012, at a meeting

between her and Consolidated where her Union representative

was present, she was terminated for her dangerous vehicular

activity in connection with the strike.

B. NLRB Hearing and Appeal

Following Hudson’s dismissal, the Union filed a claim

alleging Consolidated violated the Act by terminating Hudson

for protected conduct. The Board’s Acting General Counsel

filed a complaint and an administrative law judge (“ALJ”) held
4 No. 18-3322

a hearing. The ALJ agreed with the Union and determined that

none of the conduct cited warranted Hudson’s discharge. The

ALJ further found that Hudson’s highway conduct was not

egregious enough to warrant her termination and that any

ambiguity as to the severity of the conduct should be resolved

in her favor.

Following the Board’s decision, Consolidated filed a

petition for review with the U.S. Court of Appeals for the D.C.

Circuit; the Board cross-appealed for enforcement and the

Union intervened. While the D.C. Circuit largely agreed with

the Board’s decision, it did disagree with the Board’s analysis

of the high-speed driving incident. On remand, the court

instructed the Board to consider all the circumstances surrounding the incident as well as the objective impact on a

reasonable non-striker, not just the absence of violence.

The Board accepted the D.C. Circuit’s remand and invited

the parties to file position statements. Reexamining Hudson’s

conduct in light of the D.C. Circuit’s opinion, the Board found

that Hudson’s actions were calculated to intimidate the nonstriking employees and were inherently dangerous. Therefore,

her acts were sufficiently egregious to lose protection of the

Act. Ultimately, they dismissed the complaint against Consolidated.

Now, the Union appeals arguing that: the Board’s decision

creates a per se rule about highway conduct and that the

Board’s decision was unsupported by substantial evidence and

ignored contrary evidence. We disagree.
No. 18-3322 5

II. ANALYSIS 

The Court gives “substantial deference to both [the Board’s]

findings of fact and its interpretations of the [Act, but] we must

still determine whether the Board’s decision is supported by

substantial evidence and whether its legal conclusions have a

reasonable basis in law.” Columbia Coll. Chicago v. Nat’l Labor

Relations Bd., 847 F.3d 547, 552 (7th Cir. 2017) (internal quotations omitted citing Roundy’s Inc. v. N.L.R.B., 674 F.3d 638,

645–46 (7th Cir. 2012). “We defer to the Board’s interpretation

of the [Act] unless its legal conclusions are irrational or

inconsistent with the Act.” Id.

First, the Union argues that the Board’s decision creates a

per se rule that highway driving is inherently dangerous and

any strike-related conduct at highway speeds necessarily costs

the striker the protection of the Act. While we do not agree

with this characterization of the Board’s decision, the Union

failed to raise it before the Board; therefore, we are jurisdictionally precluded from considering it. 29 U.S.C. § 160(e) (“No

objection that has not been urged before the Board, its member,

agent, or agency, shall be considered by the court, unless the

failure or neglect to urge such objection shall be excused

because of extraordinary circumstances.”).

A. The Board’s Decision was Based on Substantial

Evidence

Next, we look to see if the Board’s decision was based on

substantial evidence and if its legal conclusions have a reasonable basis in law. See Jam Prods., Ltd. v. Nat’l Labor Relations Bd.,

893 F.3d 1037, 1042 (7th Cir. 2018). “Both standards are

deferential; the Board’s factual conclusions are supported by
6 No. 18-3322

substantial evidence when they are based on “such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. at 1042–43.

The D.C. Circuit ordered the Board to evaluate Hudson’s

conduct and “consider, consistent with precedent, all of the

relevant circumstances, and evaluate the objective impact on

a reasonable non-striker of misconduct committed on a highspeed public roadway with third-party vehicles present.”

Consol. Commc'ns, Inc. v. Nat’l Labor Relations Bd., 837 F.3d 1, 18

(D.C. Cir. 2016) (emphasis in original) (citing Oneita Knitting

Mills, Inc. v. N. L. R. B., 375 F.2d 385 (4th Cir. 1967); Int’l Paper

Co., 309 NLRB 31, 36 (1992)). On remand, the Board did just

that.

The Union argues that the Board’s decision is not supported by substantial evidence and, to come to its conclusion,

it relied on impermissible assumptions and inferences while

ignoring contravening evidence. They suggest that the incident

with the Consolidated Driver was brief, lasting only a moment

or two; that neither driver was in any danger; that the conduct

did not meaningfully impede the driver’s progress; and that

Hudson did not intend to impede or intimidate but only follow

so she could set-up an ambulatory picket at the job site.

Moreover, the Union argues that the Board improperly

inferred that the conduct was intentionally intimidating and

assumed that highway driving was inherently dangerous.

In Oneita Knitting, striking employees followed non-striking

employees and, in some instances, drove recklessly or hurled

eggs or tomatoes. 375 F.2d at 391-392. In Int’l Paper Co., a

striking employee followed replacement employees as they
No. 18-3322 7

drove home, tailgating, harassing, and making obscene

gestures. Here, the conduct may be less severe, but it is still

sufficient to forfeit the Act’s protection.

It is uncontested that Hudson was traveling on a major

thoroughfare at a high rate of speed. She pulled in front of

Consolidated’s vehicle and purposely impeded their progress,

only relenting when the Consolidated truck exited the highway

and she was no longer able to pursue. The Consolidated driver

testified that he felt unsafe and, in an effort to avoid further

incident or danger, he exited the highway and took an alternate route to the job site.

While the Union argues that Hudson’s conduct was not

intended to intimidate or endanger the Consolidated employees and that she only intended to follow them to set up an

ambulatory picket, that suggestion is belied by the fact that she

was following them from the front and purposely impeded

their progress. These acts illustrate a thorough plan to do more

than follow the work vehicle and are not “animal exuberance”

which the Board can and does excuse. Advance Indus. Div.

Overhead Door Corp. v. N.L.R.B., 540 F.2d 878, 882 (7th Cir. 1976)

(“Trivial rough incidents or moments of animal exuberance

must be distinguished from misconduct so violent or of such

a serious character as to render the employee unfit for further

service.”).

III. CONCLUSION

Because the Board based their decision on substantial

evidence and a reasonable application of the law, we AFFIRM.