Kiewit Power Constructors Co. v. National Labor Relations Board

652 F.3d 22, 397 U.S. App. D.C. 290, 191 L.R.R.M. (BNA) 2242, 2011 U.S. App. LEXIS 15920
CourtCourt of Appeals for the D.C. Circuit
DecidedAugust 3, 2011
Docket10-1289, 10-1312
StatusPublished
Cited by33 cases

This text of 652 F.3d 22 (Kiewit Power Constructors Co. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kiewit Power Constructors Co. v. National Labor Relations Board, 652 F.3d 22, 397 U.S. App. D.C. 290, 191 L.R.R.M. (BNA) 2242, 2011 U.S. App. LEXIS 15920 (D.C. Cir. 2011).

Opinions

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 budding that allowed them to remove their protective equipment, something they could 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 elec[25]*25trician 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, 2010 WL 3406467, 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.

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 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (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, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (holding that “[t]he ‘substantial evidence’ standard is not modified [26]*26in 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).

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652 F.3d 22, 397 U.S. App. D.C. 290, 191 L.R.R.M. (BNA) 2242, 2011 U.S. App. LEXIS 15920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiewit-power-constructors-co-v-national-labor-relations-board-cadc-2011.