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"

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.