DC Circuit affirms NLRB in Kiewit, cites youtube

In November, I posted about Kiewit Power Constructors, 355 NLRB No. 155 (2010) and included an animation I made of the case.  Today, the DC Circuit affirmed that decision with style.  Judge Griffith's opinion is quite colorful; you've got to love the way that he brought hockey fights and basketball drives into this already interesting subject matter.

The judge framed this Atlantic Steel-line case this way:

When Kiewit Power Constructors Company warned its electricians that their morning and afternoon breaks were too long, two of them responded that things would “get ugly” if they were disciplined, and one said that the supervisor had “better bring [his] boxing gloves.” Each was fired. The National Labor Relations Board (NLRB) reinstated both workers, finding that in context their statements were not physical threats, but were merely figures of speech made in the course of a protected labor dispute.

The Court affirmed the Board, reasoning,

To state the obvious, no one thought that Judd and Bond were literally challenging their supervisor to a boxing match. Once we acknowledge that the employees were speaking in metaphor, the NLRB’s interpretation is not unreasonable. It is not at all uncommon to speak of verbal sparring, knock-down arguments, shots below the belt, taking the gloves off, or to use other pugilistic argot without meaning actual fisticuffs. What these words stand for, of course, is a matter of context. Compare, e.g., http://www.youtube.com/watch?v=3NklthJ7foI (last visited July 6, 2011) (the Capitals’ Alex Ovechkin literally dropping gloves to fight the Rangers’ Brandon Dubinsky), with http://www.youtube.com/watch?v=1xMgbhl2DAk (last visited July 6, 2011) (describing Vice Presidential candidate Sarah Palin as promising that the “gloves are coming off” in the 2008 election), and Jonathan Weisman, Obama’s Gloves Are Off — And May Need to Stay Off, WASH. POST, Apr. 23, 2008, at A1. Indeed, such metaphors are part and parcel of competitive spirit. See http://www.youtube.com/watch?v=R6mqFMdhDe4 (describing college basketball phenom Jimmer Fredette as “destroy[ing]” an opponent with his combination of longrange proficiency and acrobatic drives).

 Yep, that was a series of citations to Youtube, see below.

...To be sure, Judd and Bond’s statements were intemperate, but they did not involve the kind of insubordination that requires withdrawing the Act’s protection. It would defeat section 7 if workers could be lawfully discharged every time they threatened to “fight” for better working conditions. See Sw. Bell Tel. Co., 694 F.2d at 978 (upholding NLRB’s determination that employee’s repeated statement—“I’m going to see that [expletive] fry”— was “at most . . . ambiguous,” [...]); Vought Corp., 273 N.L.R.B. at 1295 (employee’s statement to supervisor that “I’ll have your ass” was no more than a threat to file a grievance or to report the supervisor to higher management), enforced, 788 F.2d 1378 (8th Cir. 1986).

I guess in the interest of full disclosure, I should mention that years ago I worked as a laborer for Kiewit Construction.  I never had any problems and I learned a lot in my short stint, but "bring your boxing gloves" is a lot milder than some of the expressions that were thrown my way...   

Here is my animation followed by the youtube clips the judge cites:


 My animation, based loosely on the case.



"Capitals’ Alex Ovechkin literally dropping gloves to fight the Rangers’ Brandon Dubinsky"


Sorry, can't embed this one, but here is the link
http://www.youtube.com/watch?v=1xMgbhl2DAk
  "describing Vice Presidential candidate Sarah Palin as promising that the “gloves are coming off” in the 2008 election"



"describing college basketball phenom Jimmer Fredette as “destroy[ing]” an opponent with his combination of long-range proficiency and acrobatic drives"

Worldmark by Wyndham, 356 NLRB 104 (2011)

Here's a pca case with a little bit of fashion for you to boot.

Wyndham changed its "resort casual" dresscode for its sales staff and the change did not go over well. The new code meant that shirts had to be tucked in. Tommy Bahama shirts were particularly popular with the sales staff, especially with salesman Feathers who held the title "King of Tommy Bahama Shirts." Tommy Bahama shirts are not meant to be tucked in.  Salesman Foley (no relationship) returned from vacation to find out about the new policy. Protected concerted activity ensued.

The animation is based on the facts of the case, although certain changes were necessary for both artistic and technical reasons.  The voice over is my poor version of a Bill Lumbergh.  

For more on this case, check out Jeff Hirsh's post at Workplace Prof Blog and Michael Eastman's take at NLRB Insights.

I couldn't get my animated characters to wear Tommy Bahama style shirts, so here is my son in one. Clearly this shirt should not be tucked in.
 

Covanta Bristol, Inc. 356 NLRB No. 46 (Dec. 3, 2010)

In this case, we have another meeting between labor and management gone awry. In the heated context of this labor dispute, the union steward did not lose protection of the NLRA by telling his boss, among other things, "pull your head out of your ass." But while labor disputes carry with them an expectation of harsh exchanges, the boss here violates the NLRA when he ends the meeting by banging on the desk and saying, "You want to see intimidation? I'll show you intimidation!" A majority of the Board found this statement to be a threat of unspecified reprisal in violation of 8(a)(1). Full decision here.

Allied Mechanical, 356 NLRB No. 35 (2010)

Another case on the NLRB insubordination theme...

This case has an involved procedural history. First, there was Allied Mechanical I (Allied Mechanical,  Inc., 343 NLRB 631 (2004)) where the Board found that the Employer had  violated Section 8(a)(3) and (1) of the NLRA by issuing two warnings to employee and union advocate, Pinheiro.  Pinheiro's troubles did not end there, and later he mistakenly believed that he had been cut out of overtime.  He confronted his supervisor about the issue and the supervisor told him that due to the union and problems with the Labor Board, overtime procedures would be in accordance with the employee hand book. Pinheiro then made a comment that he probably regrets making.  He was suspended and terminated purportedly for insubordination and poor work performance.  The Board analyzed the suspension and discharge under Wrightline (rather than the Atlantic Steel analysis featured in most of the cases posted so far) in Allied Mechanical, 349 NLRB 1077 (2007), and reversed the ALJ, ruling that the suspension and termination were lawful. The Board assumed without deciding that a prima facie case had been made out, but found that the Employer had rebutted the prima facie case by proving it would have terminated Pinheiro with or without his union activity.  However, in 321 Fed. Appx. 581 (9th Cir. 2009), the 9th Circuit reversed the Board's ruling as to the Employer's rebuttal and remanded the case to the Board to decide if the prima facie case had been made out. Whereby Allied Mechanical, 356 NLRB No. 35 (2010) was born and Pinheiro's suspension/termination was found to be unlawful.

Trus Joist MacMillan, 341 NLRB 369 (2004)

For those who want an example of an otherwise protected employee going to far, here it is. In this case, an employee, Harris, who was a lead union organizer became the target of a plot by management. Management directed Harris' supervisor to give him an "unwarranted evaluation downgrade." The supervisor refused and was terminated, a move that deeply troubled Harris. Harris called for a meeting with the terminating manager, his new supervisor, and an HR representative. Full decision here.

NLRB v. Thor Power Tool

NLRB v. Thor Power Tool is one of the classic cases of this line. Because of technical limitations, I had to change things a little bit, but the dialogue is pretty much the same.  In Thor, a steward represented an employee at a grievance meeting. The grievance meeting became heated and the steward called the boss a "horse's ass." The steward was fired for referring to his boss in this way.

Plaza Auto 355 NLRB No. 85

In Plaza Auto, a car salesman engaged in protected, concerted activity when he complained to and on behalf of the other salesmen regarding such issues as lack of breaks or bathrooms and pay. The salesman was also suspicious that the owner padded the vehicle costs which cut into commissions. Many people don't know that such complaints can be activity protected by the law. The salesman was called into a meeting with management and the owner. Things got a little...heated in the meeting. The NLRB examined whether the salesman lost protection of the NLRA by his conduct during the meeting. The full text of the decision is linked here.

Kiewit Power 355 NLRB No. 155 (2010)

In Kiewit Power, the electricians working on a turbine had a ten minute walk to a break area, but by contract, they only had a fifteen minute break. The practice was that they were allowed to walk to their break area and then begin the break, effectively taking a 35 minute break. However, management decided to end this practice and informed the electricians that they would need to break where they were working. The men objected on several grounds, including that where they were working was not a sanitary place to take a break. The men refused to obey the directive to break where they were and a supervisor was tasked with issuing verbal warnings (the first step in their progressive disciplinary system).  One interaction became...heated as depicted below. The NLRB had to determine whether an electrician's objections ceased to be protected activity.  The full text is linked here.