Case Background: Kiewit Power Constructors Co. contested a National Labor Relations Board decision to reinstate two fired electricians for threatening workplace violence. Kiewit Power had warned the electricians that their breaks were too long, and that they may need to take them in a different location. The electricians responded by saying things would “get ugly” if they were disciplined and the supervisor “better bring [his] boxing gloves.” In reinstating the electricians, the NLRB found the statements “were merely figures of speech made in the course of a protected labor dispute.” Kiewit appealed the decision and case landed in front of the D.C. Circuit this past Spring.
Outcome: Kiewit got “jimmered” by the D.C. Circuit in an opinion authored by the Hon. Thomas B. Griffith this past fall. In relevant part:
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., [Link] (last visited July 6, 2011) (the Capitals’ Alex Ovechkin literally dropping gloves to fight the Rangers’ Brandon Dubinsky), with [Link] (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 Need to Stay Off, WASH. POST, Apr. 23, 2008, at A1. Indeed, such metaphors are part and parcel of competitive spirit. See [Link] (describing college basketball phenom Jimmer Fredette as “destroy[ing]” an opponent with his combination of longrange proficiency and acrobatic drives).
~ Kiewit Power Constructors Co. v. NLRB, 10th Cir., pg. 10 (Aug. 3, 2011)
“Pugilistic Argot” would be a great name for a rock band.
Quick note–Thomas Griffith is LDS. He was a stake president and institute teacher at BYU just a few years ago.
The key point is that a court reviewing a decision by a government agency is directed to defer to the agency unless the decision is clearly illegal or unreasonable.
Typically employers put up with progressively worse conduct by workers without making a record of it or starting with minor sanctions and working up to major sanctions. Then something happens that pushes a supervisor past his level of tolerance, and thebworkers are fired, but without any documentary evidence of progressive disciplinary action that persuades a government agency that the sanctions are justified.
Supervisors of tradeworkers don’t want to ask for help from human resources or legal experts in their company, because it us like admitting they can’t control the people they supervise.
Jimmerwise, shouldn’t there be a moratorium on T&S permas posting amusing tidbits about Mormon of the Year nominees while the voting in progress?