Kiewit Power Constructors Co. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 21, 2011 Decided August 3, 2011

No. 10-1289

KIEWIT POWER CONSTRUCTORS CO.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 10-1312

On Petition for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

Charles P. Roberts, III argued the cause for petitioner.

With him on the briefs was Kimberly F. Seten.

Renee D. McKinney, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

were John H. Ferguson, Associate General Counsel, Linda

Dreeben, Deputy Associate General Counsel, and Jill A.

Griffin, Supervisory Attorney. Usha Dheenan and Fred B.

Jacob, Attorneys, entered appearances.

2

Before: HENDERSON, GARLAND, and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Circuit Judge HENDERSON.

GRIFFITH, Circuit Judge: When the 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. Because the NLRB’s findings are supported by

substantial evidence, we deny Kiewit’s petition for review

and grant the cross-application for enforcement.

I

Beginning in 2007, Kiewit worked as a subcontractor

providing the design and construction of a turbine and related

structures for a coal-fired power plant in Weston, Missouri.

Represented by the International Brotherhood of Electrical

Workers, the twenty-two electricians employed for the project

entered into a collective bargaining agreement with Kiewit in

2008. The agreement provided for only a half-hour lunch

break at noon, but Kiewit allowed an additional fifteen-

minute break at 9:30 a.m. and another at 3:00 p.m.

The electricians typically took their breaks in a “dry

shack,” a trailer outside the turbine building that allowed them

to remove their protective equipment, something they could

3

not safely do inside the turbine building because of the danger

from ash and falling objects. As construction progressed, the

distance between the dry shack and the job sites increased,

and the workers began leaving their jobs earlier so that they

could spend a full fifteen minutes inside the dry shack. As a

result, the morning and afternoon breaks stretched to between

twenty-five and thirty minutes. In response, Kiewit

announced that electricians were to take breaks in the turbine

building rather than the dry shack—a practice called

“breaking in place.” The union objected, and the electricians

continued taking their breaks in the dry shack. Kiewit decided

to issue individualized oral warnings to any electrician or

foreman who violated the policy. Under the company’s rules,

employees receive an oral warning for the first violation of a

policy, a written warning for a second violation, and

suspension or termination for a third violation.

Following the morning break on May 20, which the

electricians took in the dry shack, Kiewit’s Field

Superintendent, Kendall Watts, accompanied by union

steward Mike Potter, visited each of the job sites to give the

electricians the company’s oral warning. Potter told the

electricians at each job site that neither he nor the union

agreed with the policy. When Watts and Potter came to where

Brian Judd and William Bond were working, another

electrician asked them if employees would receive a written

warning if they took their breaks in the dry shack that

afternoon. Watts answered yes. Judd responded that he had

“been out of work for a year,” and that if he got “laid off it’s

going to get ugly and [Watts] better bring [his] boxing

gloves.” Kiewit Power Constructors Co. & Brian Judd, 355

N.L.R.B. No. 150, at *15 (2010). Bond also told Watts that he

had recently been out of work for eight months and repeated

Judd’s comment that “it’s going to get ugly.” Id.. Watts did

not respond.

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Potter and Watts moved on to the other job sites and

delivered warning notices to the remaining electricians. Watts

then told his supervisor, Roger Holmes, about what Judd and

Bond had said, which he called a physical threat. Later that

afternoon, Holmes met with his supervisor, Ken Gibson, as

well as two managers on the site. All agreed that Judd and

Bond should be fired for violating the company’s zero-

tolerance policy towards workplace violence. The next day,

Judd and Bond were summoned to the managers’ trailer,

where Gibson and Holmes fired them. Judd and Bond pled for

their jobs, claiming they had only told Watts that there would

be consequences for enforcing a policy against breaking in

place. Later that morning, Kiewit agreed to create a shelter in

the turbine building where the electricians could break in

place and shed their protective gear, and rescinded reprimands

for all the electricians except Judd and Bond.

An administrative law judge upheld their dismissal,

concluding that their words were threats of physical violence.

The NLRB reversed on the ground that their words were only

figures of speech made in the course of activity protected by

the National Labor Relations Act (NLRA). The NLRB

ordered Kiewit to reinstate Judd and Bond, compensate them

for lost earnings, remove from its files any reference to the

discharges, and to not otherwise hold the incident against

them. Two weeks later, Kiewit filed a petition for review in

this court. We take jurisdiction pursuant to 29 U.S.C.

§ 160(e)-(f).

II

“The courts accord a very high degree of deference to

administrative adjudications by the NLRB. When the NLRB

concludes that [a] violation of the NLRA has occurred, that

finding is upheld unless it ‘has no rational basis’ or is

‘unsupported by substantial evidence.’” United Steelworkers

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of Am. v. NLRB, 983 F.2d 240, 244 (D.C. Cir. 1993) (quoting

United Mine Workers of Am., Dist. 31 v. NLRB, 879 F.2d 939,

942 (D.C. Cir. 1989). “It is not necessary that we agree that

the Board reached the best outcome in order to sustain its

decisions. The Board’s findings of fact are conclusive when

supported by substantial evidence on the record considered as

a whole.” Id. at 244 (D.C. Cir. 1993) (quoting 29 U.S.C.

§ 160(e)). As we have noted, the Supreme Court has

instructed that “a decision of an agency such as the Board is

to be reversed only when the record is ‘so compelling that no

reasonable factfinder could fail to find’ to the contrary.” Id.

(quoting INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992)).

Moreover, “[w]here the Board has disagreed with the

ALJ, as occurred here, the standard of review with respect to

the substantiality of the evidence does not change.” Local

702, Int’l Bhd. of Elec. Workers v. NLRB, 215 F.3d 11, 15

(D.C. Cir. 2000) (internal quotation marks omitted); see

Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951)

(holding that “[t]he ‘substantial evidence’ standard is not

modified in any way when the Board and its examiner

disagree”). “[C]ases have made clear that [t]he findings and

decision of the [ALJ] form an important part of the record on

which [the] judgment of substantiality is to be based, and that

the Board, when it disagrees with the ALJ, must make clear

the basis of its disagreement.” Local 702, 215 F.3d at 15

(internal quotations marks omitted). “In the end, however,

‘[s]ince the Board is the agency entrusted by Congress with

the responsibility for making findings under the statute, it is

not precluded from reaching a result contrary to that of the

[ALJ] when there is substantial evidence in support of each

result, and is free to substitute its judgment for the [ALJ]’s.”

Id. (internal quotation marks omitted).

The parties agree that Judd and Bond could not lawfully

be terminated for merely complaining about Kiewit’s break

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policy and how it was enforced. Disputing such a condition of

employment, Kiewit concedes, is protected by the NLRA. See

NLRA § 7, 29 U.S.C. § 157 (2006) (protecting the right of

employees to “self-organiz[e] . . . to bargain collectively . . .

and to engage in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection”). But

“an employee who is engaged in [protected] activity can, by

opprobrious conduct, lose the protection of the Act.” Felix

Indus., Inc. v. NLRB, 251 F.3d 1051, 1053 (D.C. Cir. 2001).

Although “employees are permitted some leeway for

impulsive behavior when engaging in concerted activity, this

leeway is balanced against an employer’s right to maintain

order and respect” in the workplace. Piper Realty Co., 313

N.L.R.B. 1289, 1290 (1994). When deciding whether the

employee’s otherwise-protected complaint about workplace

policies tipped the balance and forfeited the protection of the

Act, the NLRB considers four factors: “(1) the place of the

discussion; (2) the subject matter of the discussion; (3) the

nature of the employee’s outburst; and (4) whether the

outburst was, in any way, provoked by an employer’s unfair

labor practice.” Atl. Steel Co., 245 N.L.R.B. 814, 816 (1979).

On appeal, the parties agree that the subject matter of

what Judd and Bond said cuts in favor of protection and that

their outburst was not provoked by any unfair labor practice

on the part of Kiewit. Kiewit argues, however, that the NLRB

abused its discretion by finding that the other factors—the

place and nature of the outburst—did not work against the

employees and in favor of the company.

A

Relying on Felix Industries, Kiewit argues that the

location of a confrontation only favors protection for the

employee when it occurs in a place that is designated for

lodging complaints, such as a “formal grievance setting.” 251

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F.3d at 1054. But that is not what we held in Felix Industries.

There, an employee called his employer at work and berated

him with obscenities. Id. Although we noted that a formal

grievance process would surely be an appropriate setting for

employee complaints, id., we did not restrict employees to

registering complaints through any particular channel.

In this case, the NLRB held that it was reasonable for

Judd and Bond to object to enforcement of the new break

policy when and where it was announced to them, lest their

fellow workers think they consented to the change. Kiewit

issued the employees their individualized warnings on the job

site in front of other workers, knowing that the electricians

opposed the new policy. As the NLRB points out, it has

consistently held that while quarrels with management are

more likely to disturb the workplace if they are made in front

of fellow workers, the NLRB will not hold this against the

employee when the company picks a public scene for what is

likely to lead to a quarrel. See NLRB v. Sw. Bell Tel. Co., 694

F.2d 974, 978 (5th Cir. 1982) (“Having chosen to argue in

front of the other workers, the [c]ompany can hardly be heard

to complain about the public nature of the . . . discussion.”);

Brunswick Food & Drug, 284 N.L.R.B. 663, 664-65 (1987),

enforced mem. sub nom. NLRB v. Kroger Co., 859 F.2d 927

(11th Cir. 1988).

The NLRB’s conclusion—that it was reasonable in this

case for employees to respond briefly, spontaneously, and

verbally to the disciplinary measure when and where it was

announced—is not arbitrary or capricious. As such, we cannot

disturb the NLRB’s conclusion that the “place” factor does

not undermine Judd and Bond’s claim that their conduct was

protected.

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B

Kiewit also challenges the NLRB’s conclusion that the

nature of the employees’ outburst did not remove them from

the Act’s protection. Kiewit’s argument starts with the

undisputed proposition that employers must be allowed to

maintain rules prohibiting harassment and abusive or

threatening language. See Adtranz ABB Daimler-Benz

Transp., N.A., Inc. v. NLRB, 253 F.3d 19, 25-28 (D.C. Cir.

2001) (confirming common sense on that issue). Kiewit

argues that the NLRB’s decision in effect sanctions threats of

violence in the workplace, and points out that we have flatly

rejected the proposition that employees can only be dismissed

for “flagrant, violent, or extreme behavior.” Aroostook Cnty.

Reg’l Ophthalmology Ctr. v. NLRB, 81 F.3d 209, 215 n.5

(D.C. Cir. 1996). We have held that “denouncing a supervisor

in obscene, personally-denigrating, or insubordinate terms . . .

properly counts against according [the employee] the

protection of the Act.” Felix Indus., 251 F.3d at 1055

(employee called boss at work to inquire about pay, but ended

up insulting him with a string of obscenities). Under our case

law, Kiewit concludes, any physical threat against the

employer cuts in favor of removing the worker from the

protection of the Act.

We have no issue with that recitation of the law. The

question, however, is not whether the outburst was something

to be encouraged—no outburst is—but whether it was so

unreasonable as to warrant denying protections that the Act

would otherwise afford. 1 As the NLRB itself has framed the

1

That is not to say, however, that every time an employee’s

outburst crosses this line, the NLRB must conclude that the

employee’s otherwise-protected activity is lawfully exposed to

discipline. There are still other Atlantic Steel factors to consider. It

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issue, “when an employee is discharged for conduct that is

part of the res gestae of protected concerted activities, the

relevant question is whether the conduct is so egregious as to

take it outside the protection of the Act, or of such a character

as to render the employee unfit for further service.”

Consumers Power Co., 282 N.L.R.B. 130, 132 (1986)

(footnote omitted); see also NLRB v. Ben Pekin Corp., 452

F.2d 205, 207 (7th Cir. 1971) (“[N]ot every impropriety

committed during [section 7] activity places the employee

beyond the protective shield of the Act and the employee’s

right to engage in concerted activity may permit some leeway

for impulsive behavior.” (internal quotation marks omitted)).

And, as we have stated before, that only happens when the

employee’s actions are not simply bad, but “opprobrious.”

Felix Indus., 251 F.3d at 1053.

In determining which actions are “opprobrious” and thus

count against protecting the employee, we defer to the

NLRB’s distinction between merely intemperate remarks,

which the Act protects, and actual threats, which it does not.

See Fairfax Hosp., 310 N.L.R.B. 299, 300 (1993)

(employee’s statement that her supervisor should expect

“retaliation” as a result of a new rule was “inherently

ambiguous” and thus not so egregious as to lose the Act’s

protection); Leasco, Inc., 289 N.L.R.B. 549, 552 (1988)

(employee who told his supervisor that he was going to “kick

[his] ass” was using “a colloquialism that standing alone does

is possible for an employee to have an outburst weigh against him

yet still retain protection because the other three factors weigh

heavily in his favor. Cf. Felix Indus., 251 F.3d at 1055 (“Under the

applicable precedents [obscene and personally denigrating]

statements do weigh against protection. Whether they weigh

enough to tip the balance in that direction is for the Board to decide

on remand.”).

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not convey a threat of actual physical harm”); Vought Corp.,

273 N.L.R.B. 1290, 1295 (1984) (where an employee told his

supervisor “I’ll have your ass,” the NLRB found that in

context the statement was no more than a threat to file a

grievance or report the supervisor to higher management),

enforced, 788 F.2d 1378 (8th Cir. 1986).

The question, then, is one of fact: did Judd and Bond

physically threaten their supervisor? If they did, it counts

against them and the NLRB was mistaken. If they did not, the

NLRB was reasonable to conclude that the workers were still

protected by the Act. And on this factual determination we

must defer to the NLRB’s answer if supported by substantial

evidence, 29 U.S.C. § 160(e), even if we would “have made a

different choice had the matter been before [us] de novo,”

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

We think the NLRB was not unreasonable in concluding that

the electricians’ statements were not physically threatening.

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/wa

tch?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

11

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 long-

range proficiency and acrobatic drives).

The NLRB examined the record here and determined that

the “single, brief, and spontaneous reactions by” Judd and

Bond were not physical threats, but only expressed vocal

resistance to a policy they thought was unfair and unsafe.

Kiewit Power Constructors Co., 355 N.L.R.B. No. 150, at *3.

The absence of any physical gestures or other reasons to think

Judd and Bond were threatening actual violence supports that

view. 2 Given our narrow standard of review, we have no

warrant for reversing the NLRB’s determination that Judd and

Bond were doing nothing more than disagreeing vehemently

with Kiewit’s policy.

2

The dissent seems to suggest that an employer’s subjective

perception of an employee’s statement is dispositive. See

Dissenting Op. 10 (noting that “Watts testified that he felt

threatened”); id. at 11 (describing “how the words were

perceived”). On this basis, the dissent characterizes the NLRB as

disregarding the ALJ’s credibility determination. See id. But the

NLRB did no such thing. It merely held that the comments were

objectively not a threat. And that is consistent with how the NLRB

has read the Act in past cases. See Shell Oil Co., 226 N.L.R.B.

1193, 1196 (1976) (upholding ALJ finding that the subjective

perception of a supervisor, although taken into account, is not

dispositive on whether an employee loses the protection of the Act),

enforced, 561 F.2d 1196 (5th Cir. 1977). It was not arbitrary or

capricious for the NLRB to determine whether the remarks were

threatening using an objective standard rather than relying solely or

primarily on the subjective perceptions of Watts.

12

We agree, of course, with our dissenting colleague that

the NLRA does not shield “vitriol[ic]” or “obscene

insubordination” simply because it is unaccompanied by

physical threats. Dissenting Op. 6-7 (quoting Felix Indus., 251

F.3d at 1055). But Kiewit did not contend that the employees’

words were unprotected because they were vitriolic or

obscene (which they were not); it claimed they were

unprotected because they constituted threats of physical

violence. The Board did not hold that threats of physical

violence are insufficient to violate the Act; only that in

context the employees’ words were not physical threats. Nor

did the Board hold that the employees’ words were shielded

because they were unaccompanied by physical gestures; only

that the absence of such gestures confirmed that Judd and

Bond were not making physical threats.

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,” and reasoning that “however

sympathetic we might be to the Company’s plight, we simply

cannot adopt the Company’s arguments [that the comments

were so extreme that they necessarily fall outside the Act’s

protection] because our review is restricted to the substantial

evidence test”); 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).

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III

For the foregoing reasons, we deny the petition for

review and grant the cross-application for enforcement.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

By framing the issue on appeal as a question of fact, the

majority opinion invokes the deference we owe to the findings

of fact of the National Labor Relations Board (NLRB or Board).

See Maj. Op. at 10-11. In doing so, however, it ignores the

Board’s misapplication of clear—and consistent—Circuit

precedent. Because I believe the Board’s misapplication of

precedent makes its decision arbitrary and capricious—and

because I also disagree that substantial evidence supports its

determination that the two terminated employees did not

threaten their supervisor—I respectfully dissent.

I.

As the “balance of plant” general contractor for the

construction of the Iatan power plant in Weston, Missouri,

Kiewit Power Constructors Company (Kiewit) was responsible

for, among other things, the construction of a turbine building

and cooling tower. Kiewit employed almost 800 workers on the

project, approximately 630 of whom were unionized, twenty-

two of those electricians represented by the International

Brotherhood of Electrical Workers (Union). The collective

bargaining agreement entered into between Kiewit and the

Union provided the electricians with a thirty-minute lunch

break. Kiewit nevertheless gave its electricians two additional

fifteen-minute breaks each day—one at 9:30 a.m. and one at

3:00 p.m.

Kiewit provided the electricians trailers—called “dry

shacks”—in which to take their breaks. The electricians

routinely used the dry shacks, which contained microwave

ovens, coffee pots and other small appliances and which allowed

the electricians to remove their protective equipment, something

they felt was not safe to do inside the turbine building. As

construction of the turbine building progressed, the electricians

began working on higher floors and it took them longer to get

from their worksite to the dry shacks. As a result, the

electricians began leaving their worksite early so that they

2

arrived at the dry shack by the time their break began and could

spend the full fifteen minutes there. The breaks that were

supposed to last fifteen minutes thus extended to twenty-five to

thirty minutes and Kiewit became concerned about the lost

productivity.

Although not obligated to provide morning and afternoon

breaks, Kiewit attempted a compromise solution that would

preserve the electricians’ breaks at 9:30 a.m. and 3:00 p.m. but

limit them to the fifteen minutes Kiewit had offered. Kiewit

therefore asked the electricians to “break in place,” i.e., at their

workstations in the turbine building, and put tables and chairs in

the building for them to use while on break. They refused to

break in place, however, and continued to leave their jobs early

to go to the dry shacks. Kiewit then informed them it intended

to reprimand any electrician who used the dry shack for his

break. When they ignored the warning, Kiewit, concluding that

“enough was enough,” decided to issue verbal warning notices.

On the morning of May 20, 2008, Field Superintendent

Kendall Watts visited the three electrician crews for which he

was responsible to distribute the warnings. He began with

foreman Tim Walker’s crew. Union steward Mike Potter

accompanied Watts as the Union representative. After Watts

issued the warning, Potter informed the electricians that neither

he nor the Union agreed with Kiewit’s actions. Some members

of Walker’s crew told Watts they did not agree and thought

Kiewit was being unfair.

Watts next distributed the warning to foreman Andy

Holloway’s crew. Potter again expressed his and the Union’s

disagreement with the break-in-place policy. In response to a

question, Watts informed the crew members that Kiewit

intended to “writ[e them] up” if they exceeded the break time

that afternoon. Kiewit Power Constructors Co., No. 17-CA-

24192, at 6 (NLRB Dec. 31, 2008) (ALJ Dec.). Crew member

Brian Judd then exclaimed that he had been out of work for a

3

year and that, if he was “laid off[,] it’s going to get ugly and you

[Watts] better bring your boxing gloves.” Id. William Bond,

another crew member, then declared that he had been out of

work for eight months and also warned Watts that “it’s going to

get ugly.” Id. Watts did not respond and left to issue the

warning to the third crew. After giving the warning to the third

crew without incident, Watts reported to his supervisor, Roger

Holmes, that Judd and Bond had “threat[ened]” him. Id. at 7.

Watts later testified that Judd’s tone was “[a]ngry” when he

made the statement. Id. at 6. Holmes agreed the remarks

amounted to threats and reported them to his supervisors, all of

whom agreed that Judd and Bond should be fired.

The following morning, Holmes and his supervisors met

with Potter and Union business agent Pete Raya to discuss the

breaks and the termination of Judd and Bond. Raya agreed that

the breaks should not exceed fifteen minutes, inclusive of travel

time, and “that threats should be taken seriously and should not

[be] tolerated.” Id. at 9. Kiewit’s managers then summoned

Judd and Bond to the meeting and issued them termination

notices and checks. Judd and Bond denied they had threatened

Watts. Bond “insisted that he had only told Watts that there

would be consequences.” Id. Bond testified that Raya had said

that even the less threatening statement Bond said he had made

“sound[ed] like a threat to [Raya].” Hr’g Tr. at 166, Kiewit

Power Constructors Co., No. 17-CA-24192 (NLRB ALJ Oct. 7,

2008) (Hr’g Tr.) (Bond testimony).

The Union filed a grievance but, after a meeting including

Watts, Holmes, Holmes’s immediate supervisor, Potter, Raya

and the Union international representative, “the parties agreed

that no violation . . . occurred” and the Union withdrew the

grievance. Letter from Jim Pelley, Int’l Representative, Int’l

Bhd. of Elec. Workers, to Kenneth Gibson, Gen. Superintendent,

Kiewit Power Constructors & Pete Raya, Bus. Representative,

Int’l Bhd. of Elec. Workers Local #124 (May 29, 2008) (Joint

4

Appendix (JA) 376); see also ALJ Dec. at 10. Judd filed an

unfair labor practice charge against Kiewit on June 11, 2008,

alleging that Kiewit unlawfully discharged him (and Bond) for

engaging in protected activity. The NLRB Regional Director

issued a formal complaint on July 31, 2008. An administrative

law judge (ALJ) recommended that the complaint be dismissed

because the statements made by Judd and Bond were so

“opprobrious” that they fell outside the protection of the

National Labor Relations Act (NLRA or Act). ALJ Dec. at 10-

13. The ALJ found Watts’s account of the events “the most

reliable” and concluded “that conflicting accounts [offered by

Potter, Judd and Bond] should not be credited.” Id. at 12.

Significantly, the Board accepted the ALJ’s credibility

determination but disagreed with his recommendation,

concluding that Judd and Bond “did not lose the Act’s protection

by their remarks to Watts.” Kiewit Power Constructors Co., 355

N.L.R.B. No. 150, at 1 n.1, 2 (2010) (NLRB Dec.). Board

member Peter Schaumber dissented, believing the Board had

improperly—and on the basis of a cold record—substituted its

credibility and evidentiary determinations for those of the ALJ.

NLRB Dec. at 5-6 (Schaumber, dissenting).

II.

Section 8(a)(1) of the NLRA makes it an unfair labor

practice for an employer “to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed in” section 7

of the Act. 29 U.S.C. § 158(a)(1). Among those rights is the

right to engage in “concerted activities for the purpose of

collective bargaining or other mutual aid or protection.” Id.

§ 157. An employee engaged in otherwise protected activity,

however, “ ‘can, by opprobrious conduct, lose the protection of

the Act.’ ” Adtranz ABB Daimler-Benz Transp., N.A., Inc. v.

NLRB, 253 F.3d 19, 26 (D.C. Cir. 2001) (quoting Atl. Steel Co.,

245 N.L.R.B. 814, 816 (1979)). The Board uses four factors to

determine whether an employee’s otherwise protected conduct

5

is so opprobrious that it loses the protection of the Act: “(1) the

place of the discussion; (2) the subject matter of the discussion;

(3) the nature of the employee’s outburst; and (4) whether the

outburst was, in any way, provoked by an employer’s unfair

labor practice.” Atl. Steel Co., 245 N.L.R.B. at 816. Kiewit

concedes the second factor—the subject matter—weighs in

favor of finding the electricians’ statements protected. For its

part, the Board concedes that the statements were not provoked

in any way by any unfair labor practice by Kiewit and therefore

the fourth factor favors finding the statements unprotected. The

parties thus dispute only the first and third Atlantic Steel factors.

A.

The ALJ found that the first factor—the place of

discussion—weighed against finding the statements protected

because the “remarks were made in a work area in front of other

employees.” ALJ Dec. at 12. The Board disagreed. Although

it acknowledged that “an employee’s outburst against a

supervisor in a place where other employees could hear it would

tend to affect workplace discipline by undermining the authority

of the supervisor,” the Board nonetheless concluded that Kiewit

“should reasonably have expected that employees would react

and protest on the spot” because Kiewit “chose to distribute the

warnings in a group employee setting in a work area during

working time.” NLRB Dec. at 2. To the extent the Board

concluded that the place of the outbursts did not weigh against

finding them protected, I find its conclusion neither arbitrary nor

capricious. The Board has in the past found statements made in

the presence of other employees protected if the employer

chooses the location where the statements are made.

I do, however, think the Board acted arbitrarily and

capriciously in concluding that the place of the outbursts “tends

to favor protection.” Id. (emphasis added). Nothing in the cases

relied on by both the Board and the majority opinion suggests to

me that statements made in front of other employees are ever

6

more than neutral in balancing the Atlantic Steel factors. See

Noble Metal Processing, Inc., 346 N.L.R.B. 795 (2006); Cibao

Meat Prods., 338 N.L.R.B. 934, 934-35 (2003), enforced, 84 F.

App’x 155 (2d Cir.), cert. denied, 543 U.S. 986 (2004);

Brunswick Food & Drug, 284 N.L.R.B. 663, 664-65 & nn.8-9

(1987), enforced mem. sub nom. NLRB v. Kroger Co., 859 F.2d

927 (11th Cir. 1988); NLRB v. Sw. Bell Tel. Co., 694 F.2d 974,

977-78 (5th Cir. 1982).

B.

The ALJ found that the third factor—the nature of the

outbursts—weighed against finding them protected because they

“amounted [to] an outright threat . . . uttered in anger toward

[Judd’s and Bond’s] immediate supervisor with other employees

present.” ALJ Dec. at 12. On the other hand, the Board

concluded that the nature of the outbursts favored protection

because the remarks were unaccompanied by conduct

suggesting a physical threat. The Board began by “find[ing] that

the remarks by Judd and Bond fall short of the kind of

unambiguous physical threat that would render them [Judd and

Bond] unfit for service.” NLRB Dec. at 3 (emphasis added); see

id. (statements “were not unambiguous or ‘outright’ . . . threats

of physical violence” (emphasis added)). The Board continued:

“Nothing about the context of th[e] incident suggests that the

remarks portended physical confrontation” because there was

“no evidence that either Judd or Bond made any accompanying

physical gestures or movement towards Watts.” Id. (emphases

added). Finally, the Board concluded “that the statements by

Judd and Bond were ambiguous and, in the absence of any

accompanying conduct, cannot be construed as unprotected

physical threats.” Id. (emphases added).

But “[i]n Atlantic Steel the Board expressly disavowed any

rule whereby otherwise protected activity ‘would shield any

obscene insubordination short of physical violence.’ ” Felix

Indus., Inc. v. NLRB, 251 F.3d 1051, 1055 (D.C. Cir. 2001)

7

(quoting Atlantic Steel, 245 N.L.R.B. at 817). “We [have] also

reject[ed] the . . . argument that . . . employees could not be

dismissed unless they were involved in flagrant, violent, or

extreme behavior.” Aroostook Cnty. Reg’l Ophthalmology Ctr.

v. NLRB, 81 F.3d 209, 215 n.5 (D.C. Cir. 1996) (emphasis

added); see also Republic Aviation Corp. v. NLRB, 324 U.S.

793, 803 n.10 (1945) (“The Act, of course, does not prevent an

employer from making and enforcing reasonable rules covering

the conduct of employees on company time.”). As we explained

in Aroostook County, “there have been scores of cases over the

years in which employers have lawfully disciplined employees

for misconduct short of that which is flagrant, violent, or

extreme.” 81 F.3d at 215 n.5 (emphasis added). In Felix

Industries, we noted that Aroostook “rejected a suggestion . . .

that employees engaging in protected activity could not be

dismissed unless they were involved in flagrant, violent, or

extreme behavior.” 251 F.3d at 1055 (internal quotation marks

omitted). In Felix, an employee telephoned his supervisor to

inquire about additional wages the employer owed him for

working night shifts. The supervisor stated that the employee

would get “every penny” owed but added that he was tired of

“carrying” the employee. Id. at 1053. The employee responded

by repeatedly calling the supervisor “ ‘a f--king kid.’ ” Id. The

Board found the employee’s conduct protected because it

“consisted of a brief, verbal outburst of profane language,

unaccompanied by any threat or physical gestures or contact.”

Id. at 1054 (emphasis added). We disagreed, explaining, “[t]hat

no threat or physical violence accompanied this insubordinate

vitriol cannot, under established law, prevent it from weighing

in favor of . . . losing the protection of the Act.” Id. at 1054-55

(emphasis added) (internal quotation marks and alteration

omitted); see also Media Gen. Operations, Inc. v. NLRB, 560

F.3d 181, 188-89 (4th Cir. 2009) (“[W]ords alone can be

sufficiently violative of [shared interest in maintaining

workplace order] so as to lose the protection of the Act.” (citing

8

Felix Indus., 251 F.3d at 1054-55)); cf. Dep’t of Air Force,

315th Airlift Wing v. FLRA, 294 F.3d 192, 200 (D.C. Cir. 2002)

(“mere words could . . . result in a loss of” protection (citing

Felix Indus., 251 F.3d 1051)).

The majority opinion—incorrectly, I believe—frames the

inquiry as whether substantial evidence supports the Board’s

“factual determination” that Judd and Bond did not “physically

threaten their supervisor.” Maj. Op. at 10. Felix makes plain,

however, that an employee need not physically threaten his

supervisor to lose the protection of the Act. “If an employee is

fired for denouncing a supervisor in obscene, personally-

denigrating, or insubordinate terms . . . then the nature of his

outburst properly counts against according him the protection of

the Act.” Felix, 251 F.3d at 1055. Regardless whether

substantial evidence supports the Board’s conclusion that Judd

and Bond did not physically threaten Watts—and I agree with

the ALJ that they did threaten Watts—the Board acted

arbitrarily and capriciously by requiring a physical threat in

order for the nature of the outbursts to “weigh[] in favor of . . .

losing the protection of the Act.” Id. at 1054-55 (bracket in

original) (internal quotation marks omitted); see id. at 1056

(“depart[ure] from precedent . . . is arbitrary and capricious”);

Titanium Metals Corp. v. NLRB, 392 F.3d 439, 446 (D.C. Cir.

2004) (“A Board’s decision will also be set aside when it departs

from established precedent without reasoned justification . . . .”).

Even were we deciding only whether substantial evidence

supports the Board’s determination that Judd’s and Bond’s

outbursts were not threats, I would grant Kiewit’s petition. The

ALJ, after considering “numerous factors” including “witness

bias, consistency, corroboration, the inherent probabilities,

reasonable inferences available from the record as a whole, the

weight of the evidence, and witness demeanor,” found that the

outbursts “amounted [to] an outright threat . . . uttered in anger

toward [Judd’s and Bond’s] immediate supervisor.” ALJ Dec.

9

at 12. Both the Board decision and majority opinion, however,

cast aside the ALJ’s careful and detailed findings and instead

rely on past Board decisions that treated threatening statements

as protected. As dissenting Board member Schaumber pointed

out, however, those cases

are no substitute for the credited testimony of

witnesses and careful balancing of the evidence by the

trier of fact. One can easily cull from the hundreds of

volumes of Board case law decisions in which

statements found to be protected may, on paper, appear

more menacing or profane than those used here.

However, it is not the words themselves, but the

manner in which they are delivered and the

surrounding circumstances that convey the speaker’s

intent. Here, we know that the message delivered was

a clear threat—the words make that manifest, and if

there were any doubt as to how the words were

perceived, Watts dispelled them to the satisfaction of

the judge.

NLRB Dec. at 6 (Schaumber, dissenting). Moreover, the cases

relied on by the Board and the majority opinion are

distinguishable.

In Leasco, Inc., 289 N.L.R.B. 549, 550 (1988), an employee

upset about a policy change told a supervisor that he would

“kick[] your ass right now.” The Board agreed with the ALJ’s

conclusion that the statement was no more than “a colloquialism

that standing alone does not convey a threat of actual physical

harm.” Id. at 549 n.1. The threatened company official,

although “concerned,” was not “upset” by the statement,

“remained around to talk for 10 or more minutes after” the

statement was made, and did not view the incident as serious

enough to “recommend[] disciplinary action.” Id. at 551-52. In

contrast, Watts testified that he felt threatened by Judd’s and

Bond’s statements and he did not linger after the statements

10

were made but instead considered the threats serious enough to

report them immediately to his supervisor. See ALJ Dec. at 6-7;

Hr’g Tr. at 282-83 (Oct. 8, 2008) (Watts testimony). And

according to Bond, Union business agent Raya agreed that even

the less threatening statement Bond claimed to have made

“sound[ed] like a threat.” Hr’g Tr. at 166 (Oct. 7, 2008) (Bond

testimony); ALJ Dec. at 9. The other cases relied on by the

Board and the majority opinion are similarly off-base. See

Fairfax Hosp., 310 N.L.R.B. 299, 300 (1993) (employee

promised “retaliation” for employer’s unlawful actions but

Board, pre-Felix, required “threats of egregious or outrageous

conduct”); Vought Corp., 273 N.L.R.B. 1290, 1295 & n.31

(1984), aff’d sub nom. NLRB v. MLRS Sys. Div., 788 F.2d 1378

(8th Cir. 1986) (Board concluded employee who told supervisor

“I’ll have your ass” was unlawfully provoked by employer’s

unfair labor practices and would not have been fired had he not

engaged in protected activity where undisputed testimony

established that profanity was common in workplace and

another employee who made similar statement to supervisor was

not fired).

The majority opinion, like the Board dissent, recognizes the

importance of context, see Maj. Op. at 10 (“What these words

stand for . . . is a matter of context.”), but then ignores the

context in which the statements were made. That the President

of the United States or a vice presidential candidate might have

in mind “verbal sparring[ or] knock-down arguments” when

they threaten to take their gloves off, see id. at 10, says little

about what two recently-unemployed workers at a construction

site intended when they told Watts that if they were fired,1 “it’s

1

Overlooked in the analysis of Judd’s and Bond’s outbursts is the

extent to which they overreacted to Watts’s warning. Watts never said

that Kiewit intended to fire Judd, Bond or anyone else. If Judd and

Bond had continued to ignore Kiewit’s concededly lawful direction to

break in place, they could have been fired eventually. That they

11

going to get ugly” and that Watts better “bring [his] boxing

gloves.” “Here, we know that the message delivered was a clear

threat—the words make that manifest, and if there were any

doubt as to how the words were perceived, Watts dispelled them

to the satisfaction of the judge” who heard testimony and

assessed the demeanor and credibility of the witnesses. NLRB

Dec. at 6 (Schaumber, dissenting). There is “no reasoned basis

for overturning” the ALJ’s credibility and factual

determinations—and plainly no substantial evidence to support

doing so. Id.; see also id. at 1 n.1 (Board decision “find[ing] no

basis for reversing the [ALJ’s credibility] findings”).

My colleagues nonetheless believe it was not arbitrary or

capricious for the Board to reject Watts’s testimony—despite the

Board’s purported acceptance of the ALJ’s credibility

determinations—and to impose its own “objective standard

rather than relying solely or primarily on the subjective

perceptions of Watts.” Maj Op. at 11 n.2. The ALJ, however,

whose primary duty is to find the facts and assess credibility,

found Watts’s testimony to be the most accurate representation

of the incident. ALJ Dec. at 12. The Board, moreover, did not

reject “solely or primarily . . . the subjective perceptions of

Watts” but also the perceptions of other Kiewit managers and

Union business agent Raya, all of whom viewed the outbursts as

threats. See supra p. 3. Additionally, the Union’s international

representative, after a grievance meeting at which “[t]he parties

received verbal testimony and reviewed written statements,”

agreed that Kiewit’s termination of Judd and Bond did not

violate the collective bargaining agreement. See Letter from Jim

Pelley to Kenneth Gibson (May 29, 2008) (JA 376). How the

Board’s cold-record review of factors like credibility, context

immediately assumed they would be fired suggests they intended to

continue defying Kiewit, thus further supporting Kiewit’s decision to

fire them.

12

and demeanor constitutes an “objective” view superior to those

of the target of the outbursts, Kiewit managers, the Union

business agent and international representative and the ALJ

escapes me. See Maj. Op. at 11 n.2.

Moreover, context can involve more than the specific

circumstances of the case sub judice. Phrases like “workplace

violence” and “going postal” manifest that today’s work setting

is often far from calm, especially in precarious economic times.

Moreover, “[t]he object of the National Labor Relations Act is

industrial peace and stability.” Auciello Iron Works, Inc. v.

NLRB, 517 U.S. 781, 785 (1996); see also United Steelworkers

of Am. v. NLRB, 243 F.2d 593, 595-96 (D.C. Cir. 1957)

(“[Th]ere are bounds of language beyond which an employee

may not go and still retain his or her right to

reinstatement. . . . The basic policy of the Act is industrial

peace.”), rev’d in part on other ground, 357 U.S. 357 (1958).

The Board’s reinstatement—seconded by my colleagues—of

employees who openly challenge by threatening language lawful

decisions of their employer compels me to observe: “So much

for industrial peace.” Accordingly, I respectfully dissent.