Consolidated Communications d/b/a Illinois Consolidated Telephone Company

National Labor Relations Board - Administrative Judge Opinions

Nov 19, 2013

14-CA-094626 (N.L.R.B. Nov. 19, 2013)

JD–86–13
Mattoon, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CONSOLIDATED COMMUNICATIONS d/b/a
ILLINOIS CONSOLIDATED TELEPHONE
COMPANY
and Cases 14-CA-094626
14-CA-101495
LOCAL 702, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO
Paula B. Givens, Esq., for the General Counsel.
David C. Lonergan, Esq., and Robert T. Dumbacher, Esq.,
(Hutton Williams LLP), Dallas, Texas and Atlanta, Georgia,
for the Respondent.
Christopher N. Grant, Esq. (Schuchat, Cook & Werner),
St. Louis, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Mattoon, Illinois
from August 19-23 and on September 17, 2013. IBEW Local 702, the Charging Party, filed the
charge in case number 14-CA-094626 on December 11, 2012, an amended charge on December
17, and the charge in 14-CA-101495 on March 28, 2013. The General Counsel issued a
consolidated complaint on May 30, 2013.
The Charging Party Union went on strike on the evening of Thursday, December 6, 2012.
The Union offered to return to work unconditionally on the evening of December 11. Most
strikers returned to work on Thursday, December 13. On December 13, Respondent,
Consolidated Communications (CCI), suspended four employees indefinitely for alleged
misconduct related to the strike. On December 17, it terminated the employment of 2 of these
unit employees, Office Specialists Brenda Weaver and Pat Hudson. It suspended the other two
employees, Janitor Michael Maxwell and Switchman Eric Williamson for two days. The
General Counsel alleges that Respondent violated Section 8(a)(3) and (1) in imposing this
discipline on all four employees.
JD–86–13
2
Hudson had worked for Respondent for 39 years and had received no prior disciplinary
action. Weaver had worked for Respondent for 13 years and had not received any prior
discipline. Hudson and Weaver were terminated for alleged misconduct in three incidents on
December 10, 2010. The first incident was allegedly harassing and intimidating non-unit
employee Sarah Greider by trapping her in her car between their cars as she left Respondent’s 5
premises. The second was harassing and intimidating non-unit employee Troy Conley in his
work van with their vehicles on the highway while he drove to a work assignment. The third
incident was allegedly intimidating and harassing non-unit employee Kurt Rankin as he left
Respondent’s premises. The reasons given for termination in documentation presented to
Hudson and Weaver were workplace violence and/or violation of company conduct and work 10
rules policies.
Maxwell was suspended for impeding, harassing and intimidating non-unit employee
Leon Flood as he left Respondent’s Taylorsville, Illinois garage on December 8. Eric
Williamson was suspended for 2 days for allegedly striking non-unit employee Dawn Redfern’s 15
car mirror as she left Respondent’s premises on the evening of December 10 and making an
obscene gesture directed at non-unit employee Tara Walters on the morning of December 11.
In March 2013 Respondent eliminated the job previously held by Brenda Weaver and
distributed her duties to employees in other positions. The General Counsel alleges that 20
Respondent violated Section 8(a)(3),(4),(5), and (1) in doing so.
The legal principles generally applicable to these disciplinary measures are that the Board
must first consider whether the Respondent proved that it had an honest belief that the
disciplined employee engaged in strike misconduct of a serious nature. If the Respondent meets 25
this burden the Board will find the discipline lawful unless the General Counsel shows that the
striker did not engage in the alleged misconduct or that the conduct was not serious enough for
the employee to forfeit the protection of the Act. Clear Pine Mouldings, 268 NLRB 1044, 1046
(1984); Universal Truss Inc., 348 NLRB 733 (2006) and cases cited therein.1
30
The case law does not require much for the Respondent to meet its burden. Thus, in this
case the critical issues are whether the disciplined employees actually engaged in the alleged
conduct, whether their actions in fact rise to the level of misconduct and whether their
misconduct was serious enough to warrant discharge in the cases of Hudson and Weaver or a 2-
day suspension in the cases of Maxwell and Williamson.35
On the entire record,2 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and the Charging Party
Union, I make the following
40

1 Respondent argues that these principles do not apply to Hudson and Weaver’s conduct on the
highway in the Conley incident. That argument will be addressed herein.
2 The statement at Tr. 120, lines 3-5, is mistakenly attributed to this judge.
JD–86–13
3
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is a telecommunications company. It operates in several 5
states. This case involves its facilities in Mattoon, Illinois, which is located approximately half-
way between St. Louis and Indianapolis. Respondent derives gross revenues in excess of
$250,000. It purchases and receives goods valued in excess of $50,000 at its Illinois facilities
directly from places outside of Illinois. Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the 10
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Union and Respondent had a collective bargaining agreement that expired on 15
November 15, 2012, covering approximately 175 unit employees.3 Contract negotiations
continued after the expiration of the agreement. On December 5, a company proposal was
rejected by a vote of bargaining unit employees, apparently due to dissatisfaction with the
proposal relating to health insurance issues. The next day, which was the 22nd bargaining
session, Respondent informed the Union that there would be no further bargaining sessions 20
unless the Union made concessions on pension issues. That evening bargaining unit members
voted to strike.
Friday December 7, was the first full day of the strike. The Union picketed 10 locations
consistently. However, only 3 of these locations have any relevance to this case. The 25
Taylorsville garage, the Rutledge building in Mattoon and the corporate headquarters in
Mattoon.4
The Michael Maxwell incident at the Taylorsville Garage on Saturday, December 8
30
On Saturday morning, December 8, about six employees picketed Respondent’s garage in
Taylorsville, Illinois. The pickets walked back and forth across the entrance to the driveway of
the garage parking lot. Sometime in the mid-morning, Leon Flood, one of Respondent’s IT
systems analysts, left the garage building in a company van. Frank Fetchak, a network engineer
called in from Pennsylvania to work during the strike, rode in the passenger seat.35
40

3 Respondent and the Union reached agreement on a new contract on March 28, 2013 after the events
pertaining to this case.
4 The Rutledge Building is more formally known as the Mattoon service center or general warehouse.
Respondent has two offices on Route 16, Charleston Avenue, which are about a mile and a half from
Rutledge. The corporate office is at Rt. 16 and 17th Street. The central office (CO) is at Rt. 16 and 15th
St. (the 1501 Building).
JD–86–13
4
As the van approached the street it stopped briefly in front of the pickets, who were moving back
and forth. Then Flood inched forward and his van hit Michael Maxwell, one of the pickets.5 Maxwell
was moving when the van hit him. He fell forward and braced himself by putting his forearm on the
hood. As Maxwell tried to regain his balance he was pushed towards the driver’s side of the van. He
gave Flood the finger and yelled, “Fuck You!” at Flood.5
Leon Flood apparently completed a CCI incident report on December 8 and then spoke with Gary
Patrem, CCI Senior Director of Central Services, on December 10. The immediate supervisors of three of
the disciplined employees in this case, Maxwell, Hudson and Weaver report to Patrem. Patrem instructed
Flood to fill out a Huffmaster6 incident report, which he did on December 11, 2012.10
On December 12, Anna Bright, a human resources manager, informed union representative Brad
Beisner via email that the company would be issuing disciplinary actions to Maxwell, Pat Hudson and
Brenda Weaver on December 13. Beisner immediately emailed Bright requesting all pertinent
information used by CCI in investigating the three employees including, but not limited to, written 15
statements, video, pictures, identity of eye witnesses and police reports, G.C. Exh. 11.
On December 13, Patrem met with Maxwell and union representatives. Patrem provided the Union
with none of the documentation it requested. He informed Maxwell that he had been accused of
impeding, threatening, intimidating and harassing CCI employees. Specifically Patrem told Maxwell he 20
struck a company vehicle, proceeded to the front of the vehicle and leaned on the hood for an extended
period of time and then proceed to the driver’s window and verbally harassed him, G.C. Exh. 23.
Maxwell told Patrem that Flood drove aggressively and had hit him.
CCI suspended Maxwell indefinitely. On December 16, CCI informed Maxwell that he had been 25
suspended for two days and that he should report to work on Monday, December 17. On December 17,
Patrem gave Maxwell a document stating that he had been suspended for violating Respondent’s policy
regarding workplace violence, G.C. Exhs. 12(a)—(c). At the December 17 meeting Patrem told Maxwell
that he had threatened and intimidated Leon Flood and that he had impeded the progress of Flood’s
vehicle. Respondent suspended Maxwell for violating its workplace violence policy.30
Maxwell did not threaten anyone or commit any acts of violence on December 8, 2012. He briefly
impeded Flood’s progress in leaving the Taylorsville garage. However, he did so no more than the other
five picketers and was not suspended for failing to move out of the way when Flood approached the
picket line. Since Respondent suspended Maxwell for offenses he did not commit, I find it violated 35
Section 8(a)(3) and (1) as alleged.
Sunday, December 9, 2012
On Sunday, December 9, Respondent held a meeting for individuals who would be 40
working during the strike with representatives from the Huffmaster Security Company. The
meeting was held at the Rutledge Building located at 2116 S. 17th street in Mattoon, in which
Respondent set up a command center for the strike. Attendance was not taken but many
management employees and supervisors from Mattoon, company workers called in from other

5 Flood, who continues to work for Respondent, did not testify in this proceeding. The incident report
completed by Flood on December 11, 2012 is hearsay evidence and to the extent, if any, that it contradicts
Maxwell, I do not credit it. Frank Fetchak did not contradict Maxwell’s testimony in any material way;
thus I credit Maxwell’s account of the incident.
6 Huffmaster is the security company hired by Respondent during the strike.
JD–86–13
5
locations, and non-unit employees were at the meeting, including some of the 27 customer
service representatives who work in Mattoon.
A Huffmaster representative instructed the attendees as to how to conduct themselves
during the strike. The representative told the attendees that Huffmaster guards would be 5
stationed at the picket lines and they should follow the guards’ instructions in crossing the picket
lines. He also told employees to approach picket lines slowly and to keep their windows rolled
up. Respondent distributed Huffmaster’s written instructions, Exh. G.C. 21, to the individuals
who attended the meeting; others received the instructions via email.
10
The Huffmaster written instructions advised these workers to report any damage to their
vehicles to the police and to file a police report. The instructions advised employees who are
followed when leaving company property to drive directly to the nearest police facility or return
to company property if it is closer (G.C. 21, page CCI-0020). These instructions also advised
CCI personnel to watch for cars that may be following them when parking at a remote location. 15
Huffmaster told employees who thought they were being followed to drive the nearest police
department or drive back to the parking location. The instruction also stated:
If you encounter any problems during the course of your normal day, contact the local
police department and Huffmaster security personnel for instructions. File a report. Id., 20
at CCI page 0019.
In none of the instances in which the striking employees were disciplined, did anyone
contact the Mattoon Police Department or file a report with the police.
25
Monday, December 10, 2010
On Monday, December 10, numerous pickets began arriving at the Rutledge site prior to
7:30 a.m. They gathered near the north exit to the parking lot leading to South 17th Street, which
runs north to south. The south entrance to the lot was barricaded, so that traffic had to enter and 30
exit the Rutledge parking lot at the north exit. The pickets were making a lot of noise by yelling
and with air horns (deafening noise according to Police Chief Branson) and some were shaking
picket signs at people entering the parking lot to report for work. Between 7:30 and 8:30 a.m.,
Jeffrey Branson, the Chief of the Mattoon Police Department, arrived at Rutledge. He found that
picketers were congregating in the roadway on 17th street. He informed the picketers and/or 35
union officials that they could not do that; the picketers complied and got out of the roadway.
He also cautioned a picketer who Respondent alleges was Eric Williamson, about getting too
close to cars.7

7 Chief Branson also testified about talking to a picket, who was a “hothead.” It is not at all clear to
me that this was Williamson. The Chief’s description of this individual at Tr. 558 does not comport with
the picture of Williamson in Exh. R-10. The Chief described the hothead as almost bald. In the photo of
Williamson in R-10, from which Branson identified Williamson, he is wearing a San Francisco 49ers cap
and a hood. It was cold on December 10, about 30 degrees Fahrenheit, and there is no evidence that
Williamson took his cap and hood off at any time that day. My recollection of Williamson, who
testified, is that he is not almost bald. Indeed, I have skepticism as to the accuracy of Chief Branson’s
testimony at Tr. 1113, identifying Williamson as the person he spoke to on December 10.
I find that there is no probative value to the testimony of police officer Eric Finley. Finley did not see
JD–86–13
6
Several Huffmaster security guards were stationed at the north entrance/exit and were
controlling traffic into and out of the Rutledge parking lot and were stopping traffic on 17th street
to allow cars to exit the CCI lot . Branson went into the Rutledge Building and met with Sam
Jurka and Michael Croy, two senior managers based in Mattoon. Croy called the Mattoon Police
frequently on Monday, Tr. 420. Croy is the direct supervisor of Pat Hudson and Brenda Weaver, 5
the two employees whose discharges are at issue in this case. There were a number of people
inside the building who were very upset. Branson observed several female employees who were
crying. Croy was so angry that Branson tried to avoid talking to him; preferring to speak with
Jurka instead. Croy complained to Branson about the speed at which cars were driving down
17th street. Respondent conducted a meeting for workers at the Rutledge Building at about 8:30 10
a.m. because many were very upset and angry about the behavior of the pickets, Tr. 999-1000.
Pat Hudson/Brenda Weaver and the Sarah Greider incident
Non-striker Sarah Greider is an employee communications coordinator. She normally 15
works at a corporate building at 121 South 17th Street. However, during the strike she reported
to the Rutledge Building. She attended the Huffmaster briefing on December 9.
At about 10 a.m. on December 10, Greider left the Rutledge Building to go to an 11:00
a.m. personal appointment in Champaign, Illinois. As she exited the Building, Greider called her 20
husband and put her phone on speaker, Tr. 1087. She rolled down her car windows a bit and told
her husband that she wanted him to listen to the pickets. As Greider approached 17th street, a
Huffmaster guard briefly stopped her car to allow Pat Hudson to pass by the exit in her car, Tr.
1067. Then the guard put his hand up and stopped Brenda Weaver, who was behind Hudson, to
allow Greider to exit the parking lot, Exh. R-1, Tr. 309-11, 1067-68, 1075-77. Then the guard 25
allowed Weaver to proceed. For a distance of 135 to 165 feet, Greider’s car was between
Hudson’s and Weaver’s.
There is absolutely no basis for questioning the testimony of Hudson and Weaver that
they were on their way from Rutledge to the corporate building to picket at the latter site. There 30
is absolutely no basis for concluding that Greider’s car ended up between Hudson and Weaver’s
vehicles other than by coincidence and the traffic control actions of the Huffmaster guard. There
is no basis for concluding that Hudson and Weaver intentionally blocked Greider’s car in.8
As soon as Greider noticed Weaver behind her, she became angry and said to her 35
husband, “You are not going to believe what these bitches are doing to me,” Tr. 1079. Pickets
were next to Greider’s car on both sides of 17th Street and further north, Tr. 1081. 17th Street,
which is 22 feet wide and whose pavement is unmarked, had been reduced to one lane. Greider
could not pass Hudson safely on 17th. Hudson was driving very slowly. There is no evidence
that she did so to harass or annoy Greider. Greider put on her turn signal and turned left into the 40

the incident for which Williamson was disciplined. Williamson testified that he spoke to Officer Scott
Robison after the incident. Officer Robison did not testify. Moreover, the individual Finley identified as
the person to whom he spoke, in Exhibit R-10 (a) and (b), Tr. 1104, is not Mr. Williamson.
8 Greider conceded that Hudson may have been waiting for Weaver, Tr. 1056-57.
JD–86–13
7
first entrance to the parking lot of the Pilson Automobile dealership, 135 to 165 feet from where
she turned onto 17th Street. Greider was afraid Weaver was going to follow her, but noticed that
Weaver did not turn into Pilson’s.
After cutting through the Pilson’s lot, Greider turned right onto Land Lake Boulevard 5
(aka Rt. 121/45) and drove to Charleston Avenue (Rt. 16), the main road between Mattoon and
Charleston, Illinois. On Charleston Avenue she turned right towards the East and Interstate 57,
which is a North-South Highway. Greider turned north on I-57 and proceeded to Champaign.
On Charleston Avenue, Hudson and Weaver passed Greider driving east before Greider 10
reached the Interstate. Although she testified that she did not know whether Hudson and Weaver
saw her, Greider told her husband that the two unit employees had followed her or caught up to
her.
Greider called Respondent’s command center and reported that Hudson and Weaver 15
blocked her in, as soon as she got off the phone with her husband, Tr. 1059. Greider’s co-
worker, Jonell Rich, also a non-striker, texted Greider that she saw what Hudson did to her.
When Greider returned from her appointment in Champaign, between 12:30 and 1:00 p.m. Gary
Patrem asked her to fill out an incident report, G.C. Exh. 16. She described what happened to a
group of people in the command center including Patrem and Ryan Whitlock, Respondent’s 20
Director of Employee and Labor Relations on December 10, Tr. 428-29,1063. 9 The next day,
Greider also spoke to Respondent’s Chief Executive Officer, Robert Curry. Greider told Curry
that she was blocked in for a minute, for about 100 feet, and may have told Curry that she
thought she was being followed, Tr. 1063-64, 1077. She did not tell Curry that Hudson was
starting and stopping in front of her.25
Greider filled out a Huffmaster incident form on December 12, G.C. Exh. 12. She listed
Jonell Rich as a witness to this incident. Nobody from management talked to Rich about the
Greider incident until February 14, 2013.10 In her report, Greider stated that, “Pat refused to
move or moved very slowly.” She did not allege that Hudson was stopping and starting as she 30
did at Tr. 1057. There is no evidence that Greider made such a claim at the command center in
front of Gary Patrem and Ryan Whitlock either, Tr. 283-87; 428-29. I find there is no credible
evidence that Hudson was stop/starting while in front of Greider, see Exh. R-1 (a video), Tr. 309-
16. To the contrary, I find that the testimony of Greider and Jonell Rich to this effect is solely
the result on their animus towards Hudson, arising at least in part from the strike. 35
Finally, as Respondent notes in footnote 25 at page 47 of its brief, the conduct with which
Hudson and Weaver are accused is, according to the Mattoon Police Chief, a police matter.

9 At Tr. 1062-63, Greider indicated that she had discussions with Whitlock when she returned to the
Rutledge building on December 10. At Tr. 1073-74, she testified that Whitlock was in the area when she
was describing the incident to others. This comports with Whitlock’s testimony.
10 I give no weight to Rich’s testimony regarding the Greider incident. In addition to the fact that she
was first interviewed 2 months after the incident, her testimony is inconsistent on material matters. It is
also clear that with respect to the Greider incident and the Rankin incident, Rich’s recollection is either
inaccurate or incomplete. As to inconsistency, at Tr. 1120, Rich testified that she did not know if Hudson
came to a complete stop in front of Greider, Tr. 1120, and then changed her testimony at Tr. 1135-37.
JD–86–13
8
Despite this, neither Respondent nor Greider reported the incident to the Mattoon police, even
though Mike Croy called the city police several times the same morning, Tr. 420.
I also rely on the fact that Bernice Dasenbrock, a witness called by Respondent, testified
that she saw Greider “in the road, and she turned left and went into Pilson’s parking lot,” Tr. 5
1202. Her testimony as to how much of the incident she observed is somewhat ambiguous, Tr.
1184, but she certainly did not notice Hudson or Weaver harassing Greider, or anything else
unusual.
In summary, I find that the record establishes there was absolutely no misconduct by10
either Hudson or Weaver with regard to Greider. In so finding, I also rely in part of the fact that
Greider did not file a police report as she had been instructed prior to this incident.
Hudson/Weaver and the Troy Conley incident
15
Prior to December 10, the Union advised the strikers that they could picket at commercial
sites at which replacement employees were performing work. This was described to the
employees as “ambulatory picketing.” After Sarah Greider turned into the Pilson’s Auto lot,
Hudson, with Weaver behind her, drove by a park where they believed some company work
trucks were parked. Not seeing any company vehicles they drove down 14th street with the 20
intention of picketing the central office, the 1501 building, at Charleston Avenue and 15th Street.
This is about a mile and a half from Rutledge. Hudson then noticed a company van driving east
on Charleston Avenue. She decided to turn right and follow the van rather than turn left towards
Respondent’s central office. Weaver followed Hudson in her automobile.
25
Hudson testified that she intended to follow the truck to determine whether it was going
to a commercial worksite. If so, she testified that she intended to inform union officials so that
they could decide whether or not to picket at that site.
Once Hudson and Weaver turned east onto Charleston Avenue, after another mile and a 30
half they passed Greider. Shortly thereafter they passed under I-57 and caught up to the van
which was driven by Troy Conley, Respondent’s Director of Network Engineering, near a BP
gas station. Conley and his passenger, Larry Diggs, a manager from Texas, were on their way to
repair a commercial wireless tower in Charleston. The parties stipulated that it is about three
miles from the BP station to the Road 1200 E, where Conley testified he turned south off of 35
Route 16.
Since this is the only incident by which Respondent could possibly justify the discharge
of Hudson and Weaver, it is important to analyze the testimony of the four individuals with first-
hand knowledge, particularly where it conflicts. While I recognize that the testimony of Hudson 40
and Weaver is self-serving and thus should be approached with some degree of caution, the same
is also true with regard to Troy Conley, and to some extent Larry Diggs.
Respondent asserts that the fact that neither Hudson nor Weaver made any statements in
their defense at the suspension and termination meetings in December should be weighed against 45
JD–86–13
9
them in making credibility determinations.11 Despite the fact that Respondent provided little in
the way of specifics at the suspension meetings, I question whether it was wise for Hudson and
Weaver to remain silent. However, their silence has very little relevance in resolving credibility.
The credibility issues can be resolved largely on the basis of the testimony of Respondent’s
witnesses, their consistency with the contemporaneous reports they filed and the consistency of 5
Respondent’s witnesses with each other.
Conley is a manager who understands that his employer terminated Hudson and Weaver
and that his employer would very much like them to remain terminated. Moreover, it is quite
clear that many of Respondent’s managers were very angry about the strike and the conduct of 10
the strikers at Rutledge. Conley is likely to have been angry about the fact that Hudson and
Weaver were following him.
Witness testimony and credibility resolutions
15
Conley testified that he first noticed Weaver, who had passed Hudson, three quarters to a
half-mile east of the BP station which is located just east of I-57, at the intersection of Rt. 16 and
Miller Road. However, he also testified that it was a half a mile or less than that, Tr. 874-75.
This is about a mile and a half from where Hudson and Weaver began to follow him.
20
Where Conley first saw Weaver is significant in determining how far and for how long he
was “trapped” behind Hudson, or alternatively, merely prevented from passing Hudson and
Weaver (assuming this was the case). Both Hudson and Weaver testified that they passed
Conley near the Sarah Bush Hospital or even further east on Charleston Avenue.12 If Conley did
not see Weaver for ¾ or a half a mile and then a minute passed before he saw Hudson, as he 25
testified at Tr. 877-78, this would indicate that Hudson and Weaver’s testimony is more accurate
than Conley’s. I credit Hudson and Weaver that Hudson passed Conley in the area of the Sarah
Bush Hospital or further east.
Conley testified that Weaver honked at him, signaled and then got into the right lane in 30
front of him. He noticed a picket sign in her car. According to Conley, Weaver did not loiter
next to him and got into the right lane at a safe distance in front of him.13 At this time, Conley
did not see Hudson, Tr. 877. This leads me to conclude that he could have passed Weaver at

11 Weaver denied noticing Grieder’s car in front of her at her termination meeting on December 17. I
credit that testimony because there was no reason for her to notice which car the Huffmaster guard let out
of the parking lot in front of her.
12 Hudson’s and Weaver’s testimony differs from Conley’s regarding the location where
they passed Conley. They both testified, as did Conley, that they caught up to Conley’s truck
near the BP station at Miller Road. Both testified that Weaver passed Conley near Sarah Bush
Hospital or further east, Tr. 613, 780. The Airport entrance and Sarah Bush are located fairly
close to one another about 1 ½ miles east of the BP station; one half mile west of Loxa Road
(County Road 1100 E) and a mile and a half west of County Road 1200 E. The Airport entrance
is on the right as one drives east; Sarah Bush is on the left.
13 When testifying Conley apparently abandoned his contention that Weaver “cut in front” of him as
he wrote in his Huffmaster statement. Alternatively, when he used the word “cut” in that statement he
meant nothing more than Weaver and Hudson changed lanes in front of him, G.C. Exh. 16, Tr. 877.
JD–86–13
10
this point, if he chose to do so. Charleston Avenue at this point is a divided highway with two
lanes in each direction, see Jt. Exh. 9A & B.
Conley testified that less than a minute later, Hudson passed him, Tr. 877-78, motioned to
Weaver and that both Hudson and Weaver slowed down. Conley stated he moved into the left 5
lane but that Hudson stayed in the left lane and thus he could not pass. Then he went back into
the right lane behind Weaver. Conley does not know the speed at which any of the cars were
travelling. He conceded that Weaver and Hudson could have been travelling at the speed limit.
The speed limit on Rt. 16 east of I-57 is 55 mph in most places, but is 45 or 50 mph near a stop
light at Loxa Road (which might explain why Hudson and Weaver slowed down), Tr. 322. 10
Conley is not sure that ever put on his brakes at this point, Tr. 882. At one point on Rt. 16,
Conley was driving at 69 miles per hour; 14 mph over the speed limit. Thus, it is possible that
Hudson was driving at the speed limit or over it when Conley slowed down behind her, if he did
so, Tr. 583-84.
15
On cross-examination, Conley was somewhat tentative about where Hudson first pulled
parallel to Weaver. In response to the General Counsel, Conley testified that he did not think
this occurred as far east as the Sarah Bush Hospital, which would be about 1 ½ at most from
where he testified that he turned south (Tr. 881-83, 888). However, if Conley was boxed in west
of Sarah Bush, he could have avoided travelling behind Hudson and Weaver by turning north 20
into the road leading to Sarah Bush, south into the Airport Road or a little further east on Loxa
Road, either north or south, Tr. 905-12.
At some point, according to Conley, three cars came up behind Hudson in the left lane
and she moved into the right lane to allow them to pass her. Conley testified that he signaled 25
left, moved back into the left lane, but could not pass because Hudson moved back into the left
lane. She denies this, Tr. 780-86. Hudson testified that she passed Conley and Weaver and then
moved into the right lane in front of Weaver. Further, she testified that she did not move back
into the left lane and that Conley did not try to pass her before he turned south. I credit Conley
to the extent that at some point he was in the left lane on Route 16 behind Hudson.30
Conley testified he applied his brakes when getting behind Hudson in the left lane, but
did not slam them on. He does not recall whether or not Hudson signaled before moving back
into the left lane, Tr. 892. Conley did not believe Hudson nearly caused an accident when she
moved back into the left lane.35
Conley’s passenger, Lawrence Diggs testified that when Hudson pulled back into the left
lane, Conley had not begun to try to pass Weaver, Tr. 966-67. This corroborates the testimony
of Hudson and Weaver that Hudson never “cut off” Conley. I credit Hudson that she did not do
so.40
JD–86–13
11
Conley testified that he got back into the right lane prior to Loxa Rd. (County Road 1100)
and turned right (south) on Road 1200 E.14 He did not see Hudson or Weaver after that.
Conley does not know how long he was in the left lane behind Hudson, Tr. 888.
Similarly, Lawrence Diggs did not offer any testimony as to how long or for what distance 5
Conley was behind Hudson in the left lane or was prevented from passing. Diggs also did not
corroborate (or refute) Conley’s testimony that Conley had to drive an extra 4.97 miles to reach
the jobsite. However, if, as Conley testified, he got back into the right lane prior to Loxa Road,
Conley could have turned right or left (north or south) on Loxa rather than continue on Rt. 16 for
another mile to County Road 1200 E, as he testified.10
Conley completed a Huffmaster report, Exh. 16. Unlike the other Huffmaster reports in
this record, Conley’s is undated. Conley testified that he “believes” he was directed to fill out
this report on December 11.15 In that report, he states:
15
Traveling eastbound on Hwy 16 between Mattoon and Charleston car # 1 (Plate Weave
9) approached in passing lane honking horn (pick sign on passenger side seat) and cut in
front of company truck and slowed speed. Another car approached (Driver Pat Hudson)
and paralled (sic) the first car, both slowing. I proceeded to pass with other traffic and
(Pat Hudson) car # 2 cut back in front of me slowing down creating a blockade to the 20
front. After several miles, I turned south on county road and rerouted to Charleston.16

14 I take judicial notice of Google Maps, which were introduced and relied upon by Respondent, Tr.
868, Resp. Exh. 6. Google Maps, which are much clearer than the one introduced as Resp. Exh. 6 show
that Loxa Road is also County Road 1100. They also show that Old State Rd. intersects with County
Road 1100 south of Rt. 16 and that one can drive to back to Rt. 1 6 and towards Charleston by going
south on Loxa and then heading to the northeast on Old State Road.
Google Maps also show that one can turn left at County Road 1050E that leads to Sarah Bush
Hospital and then turn right on Dewitt Avenue (County Road 800N) to get to Loxa Road north of Rt. 16.
A driver would then have to turn south on Loxa to return to Rt. 16 or drive further south to pick up Old
State Road to Charleston.
There is also an airport road on the south side of Rt. 16, which would allow a driver to essentially
pass a bottleneck on Rt. 16 at some points and come out further east on Rt. 16. Thus, there was no need
for Conley to remain boxed in by Hudson and Weaver if Hudson got into the left lane much west of Sarah
Bush.
Weaver testified as Conley did, that he turned south on county road 1200, Tr. 659-62; Hudson
testified Conley turned at Loxa, Tr. 789. Respondent’s GPS records might show which is correct, Tr.
384. Regardless, I find there is no credible evidence that Conley was stuck behind Hudson and Weaver
for several miles.
15 I have doubts as to when Conley filled out his Huffmaster report. Conley “believes” he did so on
December 11, Tr. 894. Patrem “believes:” he directed Conley to fill out the report, Tr. 329, but also
testified that he did not interview, or talk to Conley directly, Tr. 305-06, 317-19. Patrem is also unaware
of any other manager speaking to Conley, Tr. 330.
Conley testified that he believes that Jurka, who did not testify, told him to fill out the report on
December 10, Tr. 895. Conley’s incident report was presented to Hudson, Weaver and the Union at the
termination meetings on December 17.
16 In this account, Conley did not contend that Weaver and Hudson drove parallel to each other “for
some time” as asserted in Respondent’s brief at page 30, or by Conley in response to a leading question at
Tr. 865-66. He also did not assert that he tried to pass Hudson twice as he did at Tr. 866. Diggs testified
JD–86–13
12
In this account Conley did not specify on which county road he turned south. Similarly there
nothing in his statement about driving 4.97 miles out of the way to get to the cell tower. I find that
Hudson prevented Conley from passing him by staying in the left lane, for a mile or less and not more
than one minute. If Conley had been blocked in for any significant period of time, Lawrence Diggs
would remember this. The fact that he does not leads me to credit Hudson and Weaver that they did not 5
block Conley in for any significant distance or period of time.
A major reason I credit Hudson and Weaver over Conley is the fact that Conley did not bother to
report this incident to the police as he had been instructed. Conley testified that he called Sam Jurka after
the incident on the telephone, Tr. 871-72. Thus, Conley could have called the police or had Diggs call the 10
police if Hudson and/or Weaver were doing anything dangerous or illegal. In making credibility
resolutions regarding this incident, it is very significant that Conley did not contact the police. Jurka did
not testify and there is no evidence as to what Conley told Jurka. Jurka apparently did not take any notes.
It is also significant that Jurka did not call the police. The fact that he did not do so is notable because he
was working the morning of December 10 with Mike Croy, who called the police on numerous occasions. 15
If Conley related to Jurka that Hudson and Weaver were endangering him and/others on Highway 16; one
would think Jurka or Conley would call the Mattoon police since they had Hudson and Weaver’s license
plate numbers, G.C. 16.
Conley also testified that he spoke to Gary Patrem twice about the incident twice prior to Hudson and 20
Weaver’s discharge, Tr. 894-5. Patrem testified that he never discussed the incident with Conley or
Diggs, Tr. 317-18. This raises some doubt as to the recollections and/or credibility of one or the other, or
both. If Conley did discuss the incident with Patrem, there is no evidence as to what was said.
Conley and HR Director Whitlock had a discussion about this incident apparently prior to 25
Hudson and Weaver being discharged, Tr. 900-903, 430-38. Whitlock’s account, which appears
to be inaccurate in at least so far as Larry Diggs’ presence is concerned, contains nothing about
how long or how far the incident lasted, which road Conley turned off onto and the route Conley
took to get to the worksite. There is no written record of any communication between Whitlock
and Conley. Nobody apparently advised Conley to contact the police per the Huffmaster 30
instructions.
Lawrence Diggs’ testimony
Lawrence Diggs, a manager from Texas, was Conley’s passenger. Diggs returned to 35
Texas on Friday, December 14. He testified that he spoke to nobody in management about the
incident between December 10, 2012 and late July or August 2013, Tr. 959-60, 968-69. This
contradicts Ryan Whitlock’s testimony at Tr. 428. Diggs never saw Conley’s incident report,
which lists him as a witness, nor was he present if Conley spoke to Gary Patrem and Ryan
Whitlock in December. The fact that nobody from management interviewed Diggs or took a 40

to only one attempt by Conley to pass Hudson, Tr. 957, 964-68. I do not credit Conley’s testimony that he
tried to pass Hudson twice.
Lawrence Diggs also had no recollection of how long it was before Hudson pulled in front of Weaver
in the right lane. I do not credit Conley’s s testimony regarding the period of time that Hudson and
Weaver were parallel to each other.
JD–86–13
13
statement from him undercuts Respondent’s contentions as to how serious it considered the
alleged misconduct of Hudson and Weaver.
Diggs did not testify about the most disputed facts regarding this incident, which are
where on Rt. 16 Conley was prevented from passing, how long he was prevented from passing 5
and where he turned south to get off of Rt. 16. I find this very significant in making a credibility
resolution between Conley on the one hand and Weaver and Hudson on the other. If something
very usual happened, such as Weaver and Hudson driving for a mile and a half in a manner that
Conley could not pass them, I would think that Diggs, a witness favorably disposed to
Respondent would remember it. Thus, I conclude that this did not happen.10
There is also probative value to Diggs’ testimony in that he did not recall seeing
Weaver’s brakes lights when she pulled into the right lane in front of Conley and his concession
that Weaver and Hudson may have been driving at the speed limit.
15
In summary, this record establishes that Weaver engaged in absolutely no misconduct
with regard to Conley. Assuming there was misconduct, it was, insubstantial: honking, passing
Conley and switching into the right lane in front of him. Similarly, misconduct by Hudson, if
any, provides no justification for Hudson’s discharge. Neither Hudson nor Weaver committed an
act of violence, nor has Respondent demonstrated that either violated any company policy 20
regarding employee conduct.
Hudson/Weaver and the Kurt Rankin Incident
After Hudson and Weaver lost sight of Conley they returned to the corporate building. 25
Weaver parked and got into the back seat of Hudson’s car. Another employee got into the front
passenger seat. Hudson then drove south on 17th Street past the Rutledge Building waving and
greeting the pickets at that site. She then turned around and headed north.
As Hudson drove north, at about 11:36 a.m., Kurt Rankin, Respondent’s Director of 30
Network Operations, was approaching the north exit of the Rutledge parking lot in his vehicle.
He had just left a meeting at Rutledge and was on his way to 1501 Charleston, where he
normally works.
Huffmaster guards were controlling traffic in and out of the lot and on 17th street near the 35
exit. A Huffmaster guard held Rankin up while Hudson passed the exit. Then Rankin turned
right behind Hudson, who was driving very slowly. There were pickets on both sides of 17th
street with barely enough room for two cars abreast. There were also people on the roadway on
17th street. A four-wheel drive vehicle with picketers in the back approached Hudson from the
north and stopped beside Rankin’s vehicle as he drove north.40
There is no evidence that Rankin could not have turned into the Pilson’s lot and cut
through to Landlake Boulevard as Greider had done about an hour previous to this incident.
Instead he drove past two entrances to the lot and then sped past Hudson on her left on 17th
Street.45
JD–86–13
14
On December 10, Rankin returned to the Rutledge Building and requested a Huffmaster
incident report. He filled it out, and then reviewed it with Phillip Donahue of Huffmaster on
December 12. He did not talk to anyone in management about the incident.
On the cover of the incident report, Exh. G.C. 16, Rankin listed two suspects, Hudson 5
and Weaver. The latter was mentioned because he saw Weaver in the back seat of Hudson’s
vehicle. Contrary to Respondent’s assertion in discharging Weaver, it is 100% certain that she
was not in a vehicle behind Rankin.17 Rankin’s description of the incident in his Huffmaster
report, which is the only evidence relied upon by Respondent in terminating both employees in
part for this event is as follows:10
When pulling out of company parking lot a vehicle pulled in front of my vehicle and a
vehicle was behind me blocking me on a one lane path unable to pull forward or
backwards. The vehicle proceeded to move very very slow and at some times stopped
when strikers continued to yell, scream and whistle. I was unable to pass the vehicle in 15
order to get out of the compromising situation. I felt totally threatened, vulnerable and
trapped. It was only when there were no vehicles on the side of the roadway that I was
able to pass the vehicle.
At trial Rankin added some details not contained in his statement. He testified that 20
strikers signaled to Pat Hudson to get in front of him, a contention for which there is no evidence
other than his testimony. I find this to be untrue. It is clear that Hudson was in front of Rankin
only because the Huffmaster guard prevented him from turning onto 17th street in front of her.
Rankin testified that Hudson moved to the left of the road to block him from passing. 25
This is also an allegation not contained in his statement, which I do not credit as a result. On the
other hand, Rankin’s testimony that he passed Hudson’s vehicle only when there were no cars on
the side of the street supports her testimony that she was driving very slowly because of the
parked cars and people in the street; not to harass Rankin.
30
The record establishes that neither Hudson nor Weaver committed any act of workplace
violence regarding Rankin, nor did they violate any CCI policy regarding employee conduct. In
so finding, I rely in part of the fact that no police reports were filed for their conduct, such as
stop/starting in front of vehicles, which is clearly illegal.
35
Respondent’s other witnesses to the Rankin incident
Tara Walters, Jonell Rich and Bernice Dasenbrock testified that they observed this
incident from the second floor of the Rutledge Building, Tr. 1028, 1122-22, 1178. Walters did
not see Hudson swerve, Tr. 1049. Assuming Hudson’s car moved laterally there is no basis for 40
concluding she did so to harass Rankin. It is just as likely that she did so to avoid hitting cars,

17 Quite surprising for witnesses who wish to be credited, both Gary Patrem and Ryan Whitlock
testified that they still believe that Weaver was in an automobile behind Rankin, Tr. 238-39; 444.
None of Respondent’s other witnesses to this incident saw any vehicle behind Rankin. Respondent’s
witness Tara Walters, testified that she did not see Hudson stop/start as alleged by Rankin, Tr. 1032. Exh.
R-1, the Huffmaster video, doesn’t show this either although it cuts off while Rankin was still behind
Hudson on 17th street, Tr. 242, 252, 277.
JD–86–13
15
people or in reaction to the truck coming towards her from the north. Neither Walters nor Jonell
Rich saw anything that prevented Rankin from turning into the Pilson’s lot, as Greider did an
hour earlier to avoid travelling behind Hudson, Tr. 1035, 1137-38.
However, neither Walters, nor Rich nor Dasenbrock, are particularly reliable witnesses as 5
to what transpired. Not one of them remembered the truck or car passing Hudson and Rankin
going south. Rankin, Weaver and Hudson all testified that this occurred while Rankin was
behind Hudson or trying to pass, Tr. 466-67, 622, 790. Dasenbrock’s testimony that Hudson
stopped and blocked Rankin at the exit to the parking lot, Tr. 1186-89, is clearly inaccurate. The
video evidence, Exh. R-1, clearly shows this did not occur. Dasenbrock and Rich’s testimony 10
regarding the Rankin incident is inconsistent in several material respects.
Moreover, Rich was not interviewed about by anyone until February 14, 2013, and then
only about the Greider incident, Tr. 1144. In fact there is no credible evidence as to when
anyone discussed the Rankin incident with any one of the three women. This raises doubt in my 15
mind as to what they actually remember or observed about the Rankin incident. Gary Patrem’s
testimony is that he discussed the Greider incident with Rich, Walters and Dasenbrock; there is
no evidence as to when anybody from management first discussed the Rankin incident with
them, Tr. 351-53, 441-42.
20
Rankin did not identify any witnesses to his encounter with Hudson on his Huffmaster report,
whereas Greider identified Rich. Rankin also did not orally identify Walters, Rich or
Dasenbrock as witnesses to the incident, Tr. 457-58. In the termination meeting for Weaver on
December 17, Gary Patrem discussed Rich as a witness to the Greider incident, not the Rankin
incident, G.C. Exh. 23. His testimony indicates that he only relied on Rankin’s Huffmaster 25
report in factoring in the Rankin incident in determining that Hudson and Weaver had engaged in
misconduct regarding Rankin, Tr. 353. Ryan Whitlock’s testimony also indicates that
Respondent’s information about the Rankin incident as of December 17, was limited to Rankin’s
Huffmaster report and Huffmaster’s video recording of part of the incident, Tr. 442.
30
Dasenbrock’s testimony at Tr. 1200-01, that she spoke to Patrem about the Rankin incident
in the presence of Tara Walters on December 10 is not corroborated by any other of
Respondent’s witnesses. I do not credit this testimony. The Charging Party’s brief at page 23 is
incorrect in stating that Tara Walters testified that she spoke to Gary Patrem about the Rankin
incident. To the contrary, Walters testified that she spoke about it, “just with the girls in my 35
pod,” Tr. 1028.
In its January 4, 2013 response to the Union’s information request of December 17,
Respondent did not identify any witnesses to any of the incidents other than those identified in
the Huffmaster reports, Exhs. U-1 and 2.40
Gary Patrem told the Union at the suspension or termination meetings that Rich, Walters and
Dasenbrock were witnesses to the Greider incident, and apparently did not mention that they witnessed
the Rankin incident, Tr.. 288-89.. However, Walters testified that she did not see the Greider incident,
and Dasenbrock testified she only saw part of it and never spoke to Patrem about it, Tr. 1028; 1184, 1203.45
JD–86–13
16
It is not uncommon for witness to testify about events that occurred months previously.
However, Walters, Rich and Dasenbrock were not participants in the Rankin incident, which
lasted for a very brief period and it did not affect them personally. Many of the customer service
representatives were very upset about the conduct of the strikers. Rich was certainly one of
those, give her assumptions about Pat Hudson’s motives while driving in front of Greider and 5
Rankin. By the time of anyone talked to Walters about the Rankin incident, she certainly was
upset about her encounter with Eric Williamson on December 11.
Incidents for which Eric Williamson was suspended for two days
10
Contact with Dawn Redfern’s car mirror
Eric Williamson is a switchman who had been working for CCI for 12 years prior to
December 2012. Respondent had not disciplined him prior to December 13, 2012. During the
strike, Williamson picketed every day for 12 hours 6:30 a.m. to 6:30 p.m., except Sunday,15
December 9, when he was on the picket line for about 7 hours. On Friday, he picketed at the
corporate headquarters, but on subsequent days he was picketing at the Rutledge Building.
On the evening of December 10, workers at the Rutledge Building were advised to leave
the parking lot in a caravan. Customer Service Representative Dawn Redfern was 5th in line 20
when the caravan started to pull out of the parking lot at about 5:00 p.m. Picketers were standing
very close to the cars as they exited the lot.
As Redfern turned right onto 17th Street, she heard a loud smack. Redfern stopped,
turned on the interior light and rolled down the window. She noticed that the mirror on the 25
passenger side of her car had folded in.
She addressed a picket, later identified as Eric Williamson, and said that he had hit her
car. Williamson responded that Redfern had hit him. It is not clear whether Williamson moved
closer to the car as Redfern turned, or whether Redfern turned more sharply than other cars. In 30
any event, there is no evidence that Williamson intentionally struck the mirror. Redfern never
told anyone that she thought that Williamson struck her mirror intentionally. In fact, she testified
that Williamson could have come in contact with her mirror accidently.
A Huffmaster Guard advised Redfern to continue driving. She called her supervisor and 35
a co-worker about the incident and they agreed to meet at a CITGO gas station. At the gas
station, Redfern checked her car for damage and saw none. When she arrived at her house,
Redfern’s husband folded the mirror back into place.
Redfern’s supervisor advised her to call management at the Rutledge Building. She did 40
so and spoke to Sam Jurka, who advised her to report the incident to the police. Redfern did not
do so. On December 11, Redfern met Gary Patrem, who drove her to work. They discussed the
mirror incident. Redfern told Patrem that there was no damage to her car.
45
JD–86–13
17
Obscene gesture
On Tuesday, December 11, Tara Walters, another customer service representative,
arrived at work at about 7:20 a.m. She looked towards a group of picketers and saw Eric
Williamson grab his crotch.18 Williamson was facing her but far enough away that Walters5
could not tell if he made eye contact with her, Tr. 1038.
Walters did not report the incident to management. She did mention it to coworkers on
Tuesday. On Wednesday, December 12, Walters’ supervisor, Mary Beth White asked Walters if
she wished to fill out an incident report. Walters answered affirmatively. She filled out a 10
Huffmaster report in which she stated “Eric Williamson, a picketer, grabbed his crotch towards
me.” Walters also filled out a CCI report stating that Williamson turned and grabbed his crotch,
G.C. Exh. 13.
Walters’ testimony at trial was somewhat inconsistent as whether Williamson was 15
intentionally making an obscene gesture directed towards her.
At Tr. 1024, Walters testified that Williamson “grabbed himself, lifted up as a mean,
hateful gesture.” She testified further that she thought so because “it was the demeanor. It was a
big handful of crotch, and the way he lifted it up. He wasn’t shifting it to the side.”20
However, on redirect by Respondent’s counsel, Walters backed off from her testimony on
direct:
Q. You understand all the questions about looked at, looked towards, looked in the 25
direction?
A. Yes.
Q. Do you understand, do you see a distinction between the three?30
A. No, because I can say we did not make eye contact.
Q. Okay.
35
A. I know that for sure. He was looking in my direction. I was the only one out there, so
I would say he was looking at me, but he could have been looking past me.
Q. Okay.
40
Q by Judge Amchan: Are you sure that the gesture was directed at you?
A. I cannot be positive, but I was the only one in my area where he was looking at.

18 Williamson denies doing so. He testified that he yelled scab when Walters parked and that is all,
Tr. 712-16. Williamson and Walters were casual acquaintances outside of work. I find that Walters did
not make this incident up and she saw Williamson move his hand to his crotch.
JD–86–13
18
Tr. 1048-49.
Nevertheless, since Williamson testified that he addressed the epithet “scab” at Walters, I
find that he grabbed his crotch as a hostile gesture directed at her.
5
On December 18, Respondent informed Williamson that he was receiving a 2-day
suspension for workplace violence and sexual harassment.
Alleged Section 8(a)(5) violation: unilaterally combining the position of Office Specialist
in the Fleet Department (Hudson’s position) with the position of Office Specialist in the 10
Facilities Department (Weaver’s position)19
In January or February 2013, Respondent decided to fill Pat Hudson’s job as Office
Specialist in the Fleet Department, but not Weaver’s job in the Facilities Department. A unit
employee, Heather Winkleblack, was awarded the job in the Fleet Department. The Union was 15
not notified until February 26 that Respondent was not filling the position of Office Specialist in
the Facilities Department. Respondent assigned some of the duties formerly performed by
Weaver to Winkleblack. Respondent did not provide the Union with advance notice or an
opportunity to bargain about its decision not to fill Weaver’s position, which reduced the number
of bargaining unit members by one. The collective bargaining agreement that expired in 20
November 2012 did not require Respondent to replace a terminated employee.
On March 1, the Union demanded in writing a return to the status quo and bargaining
over the change , Jt. Exh. 2. On April 18, 2013, Respondent advised the Union that it was
transferring some of Weaver’s former duties outside the bargaining unit on June 19.25
Respondent concedes at page 64 of its brief that it must return Brenda Weaver to her
prior or similar position if her termination is found to violate the Act. In light of the fact that I do
find that her termination violated the Act, I find it unnecessary to rule on whether Respondent
otherwise violated the Act in not filling her position and transferring her duties to other 30
employees.
Legal Analysis
Upon unconditional offers to return to work, former economic strikers are entitled to 35
reinstatement to their former or substantially equivalent positions. One exception to this rule is
that an employer may refuse to reinstate a former striker if the employer has a good-faith belief
that the 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, Clear Pine Mouldings, 268 NLRB 1044 (1984), affd. 40
765 F.2d 148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1986).
Initially, the General Counsel must show that employee was a striker and that the
employer took action against the employee for conduct related to the strike, Avery Heights, 343
NLRB 1301, 1302 (2004). The burden has been met with regard to the all the allegations in this 45

19 This is also alleged as a Section 8(a)(3) and (4) violation.
JD–86–13
19
case. While there is no issue in this regard concerning Maxwell and Williamson, there may be
with regard to Hudson and Weaver. However, I credit their testimony that they followed Troy
Conley in order to determine whether he was going to perform bargaining unit work at a
commercial site, so that the Union could decide whether to picket that worksite.
5
While it is peculiar that Hudson and Weaver would get ahead of Conley if they were
following him to a worksite, they were keeping track of him in their rear view mirrors. I
conclude that their conduct was strike related and protected, International Brotherhood of
Teamsters, Local Union 807 (Schultz Refrigerated Service, Inc.) 87 NLRB 502 (1949).
10
Respondent argues that the conduct of Hudson and Weaver was not strike-related and is
outside of the Board’s purview. However, the fact that Respondent did not contact the police
but rather dealt with this incident only through the procedures that it had established to deal with
strike misconduct (filing a report with Huffmaster) belies this assertion. Finally, I would note
that the Board has analyzed alleged driver conduct away from the picket line no differently than 15
alleged misconduct at the picket line in a number of cases, including Consolidated Supply Co.,
Inc., 192 NLRB 982, 988-89 (1971); Otsego Ski-Club, 217 NLRB 408 (1975); Gibraltar
Sprocket Co., 241 NLRB 501, 502 (1979)20 and Federal Prescription Service, Inc. 203 NLRB
975, 993 (1973), which are discussed in more detail below.
20
Once the General Counsel has shown that an employee or employees have been
disciplined for strike-related conduct, the burden shifts to the employer to demonstrate that it had
a honest belief that that the employee engaged in misconduct. As noted in Avery Heights, supra,
at 1303, Board precedent establishes “a relatively low threshold” for the employer on this issue.
Basically, any information linking the misconduct to the accused employee will satisfy the 25
employer’s burden. It need not even interview that employee. It is also not clear whether the
employer must show that it had an honest belief that the misconduct was serious enough to
warrant the discipline imposed. I need not spend a lot of time on this issue because with regard
the all the instances in this case I find that the misconduct either did not occur, or was not
sufficiently egregious to warrant the discipline imposed.30
However, there are serious issues as to whether Respondent had an honest belief that
Weaver engaged in any misconduct. It did not even interview Rankin, who would have told
management that Weaver was a passenger in the car in front of him; not the driver of any car
which might have been behind him. Had it examined its own video evidence, it would have 35
determined that Weaver was behind Greider because the Huffmaster guard stopped Weaver
before Greider exited the parking lot. Had it interviewed Conley and Diggs, management would
have known that Weaver did nothing more than pass Conley and pull into the right lane.
With regard to Williamson and the mirror incident, Respondent could easily have 40
determined by interviewing Dawn Redfern that she had no reason to believe that Williamson
contacted her car mirror intentionally.

20 Cited in the Union’s brief as Advanced Pattern and Machine Corporation.
JD–86–13
20
With regard to Maxwell, had Respondent bothered to talk to its employee Frank Fetchak,
it would have determined that there was no reason to conclude that Mike Maxwell intentionally
struck Leon Flood’s van and no reason to believe that Maxwell threatened Flood.
Finally, one can question whether Respondent had a good faith belief that the conduct of 5
Hudson and Weaver warranted discipline in inhibiting the travel of Greider and Rankin for a
distance of a couple of hundred feet. There is no evidence of harassment in the Huffmaster
videos, or in the Huffmaster statements of Greider and Rankin, which is all Respondent relied
upon in disciplining the two women for these incidents.
10
Assuming that Respondent met its burden of showing an honest good faith belief as to all
these instances of misconduct, I find that the General Counsel met its burden of proving that the
misconduct either did not occur or was insufficiently egregious to forfeit the protections of the
Act, to wit:
15
Mike Maxwell did not intentionally strike Leon Flood’s vehicle and did not threaten or
intimidate Leon Flood. Flood inched forward and struck Maxwell. While Maxwell impeded
Flood’s exit from the Taylorsville parking lot for a very short period of time, he did not engage
in the conduct for which he was suspended.
20
Brenda Weaver engaged in no misconduct at all. She was behind Greider only because
the Huffmaster guard held her up to allow Greider to exit the Rutledge parking lot. Weaver’s
only involvement in the Rankin incident was sitting in the back seat of Hudson’s car, which was
in front of Rankin. Her involvement in the Conley incident was following him on Route 16,
Charleston Boulevard, passing him and moving into the right lane in front of him. There is no 25
credible evidence that she did anything threatening or dangerous. While Conley may have been
intimidated by the fact that strikers were following him to his worksite, they had a protected right
to do so. The Board has held, in circumstances far more egregious than the instant matter, that
simply following a nonstriker, in the absence of violence, is an insufficient to deprive a striker of
the protections of the Act, Gibraltar Sprocket Co., 241 NLRB 501, 502 (1979).30
In Gibraltar Sprocket the striker followed a non-striker from the employer’s plant, pulled
alongside the non-striker’s car and motioned to him to pull over. The non-striking employee
called the police who came and talked to him. When he left the police officer, the non-strikers
followed him again. On the way back to the employer’s facility, the striker threw an empty beer 35
can in the direction of the car of the employer’s vice-president, which missed. The Board found
that the striker’s misconduct was not sufficiently serious to warrant his termination and the
employer’s refusal to reinstate him. The Board noted that the record did not indicate that the
striker drove dangerously close to the non-striker or attempted to force him off the road. It also
emphasized the lack of violent action on the part of the striker.40
A similar case is Otsego Ski-Club, 217 NLRB 408, 409n.4, 410, 413 (1975). Strikers in
that case followed a supervisor’s car on two days, honking the horn. There was a dispute as to
how close they came to the supervisor’s car, but they never drove alongside it or forced it off the
road. Like Hudson’s conduct, the strikers’ conduct may have been annoying, but the Board 45
found it was insufficiently aggravated to warrant their discharge for misconduct. Indeed,
Member Fanning wrote a concurring opinion in part to emphasize this point.
JD–86–13
21
In Federal Prescription Service, Inc. 203 NLRB 975, 993 (1973), the Board at page 976,
note 4, agreed with the Judge that two employees, who followed a non-striker away from the
strike line and to her home, did not engage in conduct that rendered them unfit for further
employment.
5
In Consolidated Supply Co., Inc., 192 NLRB 982, 988-89 (1971) the Board concluded
that following an employer’s truck or blocking it momentarily did not forfeit the protection of
the Act, where as in the instant case, the striker did not endanger non-striking employees.
Pat Hudson engaged in no misconduct with regard to Greider or Rankin. If she engaged 10
in misconduct with regard to Conley, by preventing him from passing her, even if this was for a
minute and a half and for a mile and a half, this conduct was not egregious enough to warrant her
termination, particularly in light of the fact that she was a 39-year employee with no prior
disciplinary record.
15
Moreover, Respondent terminated Hudson for three incidents; not solely the Conley
incident. With regard to the Greider and Rankin incidents I find there was absolutely no
misconduct by Hudson. Even assuming some degree of misconduct by Hudson in the Conley
incident, any ambiguity as to whether it was serious enough to forfeit the protection of the Act
should be resolved against Respondent.20
Williamson engaged in no misconduct by coming into contact with Dawn Redfern’s
mirror. He did engage in misconduct by grabbing his crotch and making an obscene gesture
directed at Tara Walters.
25
Once the Employer has established a good faith belief of striker misconduct, the burden
shifts to the General Counsel to show that the striker did not engage in the misconduct or that it
was not serious enough to deny the discriminatee the protection of the Act, Clear Pine
Mouldings, supra. I also conclude that the General Counsel may prove that although misconduct
occurred, it was not serious enough to warrant the level of discipline imposed.30
The instances in which the Board has found that strikers have forfeited the protection of
the Act in almost all cases involve violent acts or threats of violent acts, which may reasonably
tend to coerce or intimidate employees in the exercise of their Section 7 rights. In Clear Pine
Mouldings strikers carried clubs, tire irons, baseball bats and ax handles. One striker in fact 35
swung a club at a non-striker. In Detroit Newspapers, 340 NLRB 1019, 1028, 1030 (2003), the
employer was found to have legally discharged one employee for vandalizing its property and
another for taking part in an assault.
On the other hand the Board has found employee misconduct not sufficiently egregious 40
to forfeit the protection of the Act by hitting a foreman’s car with cardboard picket signs in a
brief incident not resulting in damage, Medite of New Mexico, Inc., 314 NLRB 1145-47 (1994).
There is no case that supports a discharge for the type of conduct engaged in by the
discriminatees in this case. Even Williamson’s gesture does not justify his suspension. The 45
Board’s decisions in Briar Crest Nursing Home, 333 NLRB 935, 937-938 (2001); Callope
Designs, 297 NLRB 510, 521 (1989); Universal Truss, 348 NLRB 733, 780-81 (2006); and
JD–86–13
22
General Chemical Corp. 290 NLRB 76, 83 (1988), lead to the conclusion that for a striking
employee to forfeit the protection of the Act, an implied threat of bodily harm must accompany a
vulgar or obscene gesture. Williamson’s gesture certainly does not meet this standard.21
Williamson is an outside switchman and Walters is an office-bound customer service 5
representative. While his gesture was totally uncalled for, and very unpleasant, it is difficult to
see how it could have been perceived as an implied threat of violence or even future
mistreatment (whatever that means) or have discouraged Walters from continuing to report to
work during the strike. The cases cited by Respondent, Romal Iron Works Corp., 285 NLRB
1178, 1182 (1987) and Bonanza Sirloin Pit, 275 NLRB 310 (1985) involve employer threats of 10
retaliation to employees, couched in obscene language. These cases are not relevant to issues of
striker misconduct.
Williamson’s suspension was based on two incidents, one of which I find did not
constitute misconduct. Therefore, even assuming that Williamson’s conduct forfeited the 15
protection of the Act, I conclude that it is Respondent’s burden under the Wright Line22 doctrine
to establish that it would have suspended Williamson solely on the basis of the Tara Walters
incident. It has not done so, therefore, I find that his suspension violated Section 8(a)(3) and (1).
CONCLUSIONS OF LAW20
Respondent violated Section 8(a)(3) and (1) by discharging Brenda Weaver and Patricia
Hudson on December 17, 2012.
Respondent violated Section 8(a)(3) and (1) by suspending Michael Maxwell and Eric
Williamson in December 2012.25
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 30
the policies of the Act.

21 Williamson’s gesture cannot be legitimately characterized as “sexual harassment.” In Title VII
cases, a plaintiff generally cannot prevail on the basis on a single incident not involving physical contact,
e.g., Pomales v. Cellurlares Telefonica, 441 F. 3d 79 (lst Cir. 2006). The record, herein, of course is
barren as to whether Respondent has ever applied it sexual harassment policy, (see G.C. Exh. 13), to a
single incident not involving physical contact.
22 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981); La Gloria Oil and Gas
Co., 337 NLRB 1120, 1123-24 (2002)
JD–86–13
23
The Respondent, having discriminatorily discharged employees, must offer them
reinstatement and make them whole for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).5
Respondent shall file a report with the Social Security Administration allocating backpay
to the appropriate calendar quarters. Respondent shall also compensate the discriminatee(s) for
the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year, Latino Express, Inc., 359 NLRB No. 44 (2012). 10
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended23
ORDER15
The Respondent, Consolidated Communications, Inc., its officers, agents, successors, and
assigns, shall
1. Cease and desist from20
(a) Discharging, disciplining, refusing to recall or otherwise discriminating against
any employee for engaging in union or protected concerted activities, including participation in a
strike;
25
(b) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
30
(a) Within 14 days from the date of the Board’s Order, offer Brenda Weaver and
Patricia Hudson full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
35
(b) Within 14 days from the date of the Board’s Order, rescind the December 2012
suspensions of Michael Maxwell and Eric Williamson.
(c) Make Brenda Weaver, Patricia Hudson, Michael Maxwell and Eric Williamson
whole for any loss of earnings and other benefits suffered as a result of the discrimination against 40
them, in the manner set forth in the remedy section of the decision.

23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–86–13
24
(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges of Patricia Hudson and Brenda Weaver and the unlawful
suspensions of Michael Maxwell and Eric Williamson, and within 3 days thereafter notify the
employees in writing that this has been done and that the discharges and suspensions will not be
used against them in any way.5
(e) Return the position of Office Specialist in the Facilities Department to the status
quo that existed at the time of Brenda Weaver’s discharge.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional 10
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
15
(g) Within 14 days after service by the Region, post at its facilities in Mattoon and
Taylorsville, Illinois copies of the attached notice marked “Appendix.”24 Copies of the notice, on
forms provided by the Regional Director for Region 14, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily 20
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these 25
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
December 13, 2012
30
(h) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C., November 19, 2013.35
____________________40
Arthur J. Amchan
Administrative Law Judge

24 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discipline, terminate, refuse to recall, or suspend you because of your union or
concerted protected activities, including your participation in a legal strike.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Patricia Hudson and Brenda Weaver
full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Patricia Hudson, Benda Weaver, Michael Maxwell and Eric Williamson whole
for any loss of earnings and other benefits resulting from their discharge or discipline, less any
net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Patricia Hudson, Brenda Weaver, Michael Maxwell and Eric Williamson
for the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharges of Patricia Hudson and Brenda Weaver and WE WILL, within 3 days
thereafter, notify them in writing that this has been done and that the discharges will not be used
against them in any way.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful suspensions of Michael Maxwell and Eric Williamson and WE WILL, within 3
days thereafter, notify them in writing that this has been done and that the suspension will not be
used against them in any way.
WE WILL restore to the position Office Specialist in the Facilities Department those duties that
were performed by Brenda Weaver prior to her discharge.
CONSOLIDATED COMMUNICATIONS d/b/a
ILLINOIS CONSOLIDATED TELEPHONE
COMPANY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1222 Spruce Street, Room 8.302, Saint Louis, MO 63103-2829
(314) 539-7770, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (314) 539-7780.