Publications: Court upholds NLRB order reinstating workers

During 2007, Kiewit Power Construction Co. was a subcontractor building turbines for a Missouri power plant. It employed, among others, 22 electricians on the work site in the turbine building. The International Brotherhood of Electrical Workers (IBEW) represented the electricians.

Kiewit's labor contract with the IBEW allowed the electricians one half-hour lunch break, at noon. As a matter of practice, Kiewit also allowed the electricians two daily 15-minute breaks, one at 9:30 a.m. and the second at 3 p.m. Generally the electricians took their breaks in a trailer outside the turbine building, called a "dry shack." The advantage of the dry shack was that the electricians could remove their protective equipment there and thus enjoy a more relaxing break. Due to safety concerns, they could not remove their safety gear while working within the turbine building itself.

A problem arose as the electricians' breaks began to get longer and longer. As the project progressed, it took the electricians more time to reach the dry shack from the higher floors on which they were working. Some of the technicians routinely were taking half-hour, rather than 15-minute, breaks.

Kiewit, concerned about the lost productivity, wanted to get back to the 15-minute breaks. Its' solution was to require the electricians to take their breaks in the turbine building, with full gear, and forbid them from breaking in the dry shack. The IBEW protested and the electricians themselves ignored Kiewit's mandate, continuing to break in the dry shack.

That insubordination did not go down well with management. It first warned the electricians that failure to adhere to the new break policy would result in discipline. The warning was ignored. So on May 20, 2008, Kiewit field superintendent Kendall Watts, accompanied by union steward Michael Potter, visited the electricians on site. Watts issued oral warnings to the recalcitrant electricians. Potter reiterated the union's position against the new break policy.

One of the electricians during the meeting asked if the electricians would receive a written warning it they continued to break in the dry shack. Watts replied "yes." Electrician Brian Judd then stated that he had been out of work for one year priorto the project and that if he got laid off "it's going to be ugly" and that Watts "better bring his boxing gloves." Electrician William Bond echoed Judd's comments, agreeing that "it's going to get ugly."

Watts then reported to his superiors that Bond and Judd had physically threatened him at the meeting. Kiewit fired Judd and Bond the next day for violating the company's workplace violence policy.

Kiewit and the IBEW eventually agreed to build a separate shelter within the turbine building in which the electricians could break without their protective gear. Kiewit also rescinded the oral warnings. It steadfastly refused, however, to reinstate Judd and Bond.

The IBEW filed on Judd's and Bond's behalf a grievance under the collective bargaining agreement, but later withdrew it, agreeing that "no violation … occurred." Judd and Bond then filed unfair labor practices with the National Labor Relations Board, the federal agency that oversees private sector labor law and which is now dominated by President Obama-appointed pro-labor activists.

The board's general counsel issued a complaint based on these charges. A board administrative law judge (ALJ), after hearing evidence and judging the various witnesses' credibility, sustained the discharges and dismissed the complaint. The ALJ expressly found that supervisor Watts' account of the May 20 meeting to be "the most reliable" and that Potter's, Judd's and Bond's "conflicting accounts should not be credited." The ALJ ultimately ruled that Judd's and Bond's public statements to Watts were so "opprobrious" as to fall outside the National Labor Relations Act's free speech protections.

The board reviewed the ALJ's decision and reversed. Kiewit Power Construction Co. 355 NLRB No. 150 (2010). While accepting the ALJ's credibility determinations, it concluded that the belligerent electricians "did not lose the act's protection by their remarks to Watts." The board ordered Judd and Bond reinstated with back pay and benefits.

Kiewit appealed the NLRB's order to the U.S. Court of Appeals for the District of Columbia Circuit. A divided panel on Aug. 3 denied the appeal and sustained the board's order. Kiewit Power Construction Co. v. NLRB. No. 10-1289 (Aug. 3, 2011).

Applying a standard of review highly deferential to the board, the D.C. Circuit majority concluded that the board's decision could only be overturned if it had "no rational basis" or was "unsupported by substantial evidence." In the court's view, the board was correct when it determined that Bond and Judd, in taunting Watts to bring his boxing gloves, were "speaking in metaphor" and not "literally challenging their supervisor to a boxing match." Absent an actual threat of physical violence, the board ruled and the court agreed, Bond and Judd retained the act's protection.

The dissenting judge disagreed and would have sided with the ALJ who actually took and considered the evidence. In the dissent's view, the ALJ correctly ruled that Bond and Judd had physically threatened Watts. The dissent noted, even if they had not, a long list of federal precedent allowed employee terminations under the act even in the absence of a physical threat. The board's requirement of a physical threat, in the dissent's view, was "arbitrary and capricious" and the court should not have endorsed it.

So where does the Kiewit decision place similarly situated employers? Unsurprisingly, in a bind. On the one hand, employers wanting to avoid liability and all the other bad things associated with workplace violence want to rid themselves of threatening employees. On the other hand, this board appears to be signaling that an employee's expression of dissatisfaction about working conditions, if protected concerted activity or done on behalf of a group, loses its NLRA protection only if accompanied by very, very clear threats of physical violence.

Reprinted with permission from Chicago Daily Law Bulletin.