Kiewit Power Constructors Co. v. Nat'l Labor Relations Bd., s. 10–1289

• Decision Date: 03 August 2011
• Docket Number: Nos. 10–1289,10–1312.,s. 10–1289
• Citation: 652 F.3d 22,397 U.S.App.D.C. 290,191 L.R.R.M. (BNA) 2242,161 Lab.Cas. P 10401
• Parties: KIEWIT POWER CONSTRUCTORS CO., Petitionerv.NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

652 F.3d 22

191 L.R.R.M. (BNA) 2242

397 U.S.App.D.C. 290

161 Lab.Cas. P 10,401

KIEWIT POWER CONSTRUCTORS CO., Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 10–1289

10–1312.

United States Court of Appeals, District of Columbia Circuit.

Argued April 21, 2011.Decided Aug. 3, 2011.

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.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 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, 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 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 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...