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.
 4
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
 5
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
 6
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
 7
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.
 8
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
 9
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.”).
 10
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).
 13
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.