Verbal Sparring Wasn’t|a Precursor to Violence

(CN) - Two union electricians were not "challenging their supervisor to a boxing match" when they told him to bring his gloves if he tried to discipline them for taking long breaks, the D.C. Circuit ruled.

Kiewit Power Constructors fired the men for supposedly making "physical threats" to a field supervisor while building a turbine for a coal-fired power plant in Weston, Mo.

As part of their union contract, electricians on the job were only allowed a half-hour lunch break at noon. Kiewit added two 15-minute breaks in the morning and late afternoon.

Electricians took breaks in a trailer outside the building known as a "dry shack," where they could safely remove their protective equipment away from ash and falling objects.

The distance between the worksite and the dry shack increased as construction progressed, which led workers to leave their jobs 10 to 15 minutes earlier to spend a full 15 minutes in the dry shack.

Despite union objections, Kiewit told electricians to start "breaking in place" and stop going to the dry shack.

Field superintendant Kendall Watts and union steward Mike Potter gave verbal warnings to workers who continued to break in the dry shack. Two-time offenders got written warnings, and a third offense warranted suspension or termination.

Potter made it clear to workers that he disagreed with Kiewit's breaking-in-place policy. During a morning break, an unnamed worker asked if workers would get a written warning for breaking in the dry shack that afternoon, and Watts answered, "Yes."

Overhearing this answer, electrician Brian Judd said if he got "laid off it's going to get ugly and [Watts] better bring [his] boxing gloves."

Another electrician working nearby, William Bonds, echoed that "it's going to get ugly."

The next morning, citing a zero-tolerance policy for workplace violence, Kiewit fired Judd and Bond for allegedly making physical threats.

The men begged for their jobs and claimed they had only spoken out against the breaking-in-place policy. That same day, Kiewit agreed to build a safe shelter inside the turbine building and revoked warnings for all electricians except Judd and Bond.

After Judd and Bond filed a grievance, an administrative law judge upheld the firing, but the National Labor Relations Board later reversed. Finding that the comments were protected speech under the National Labor Relations Act, it ordered them reinstated.

The D.C. Circuit affirmed last week.

"To state the obvious, no one thought that Judd and Bond were literally challenging their supervisor to a boxing match," Judge Thomas Griffith wrote for the three-judge panel.

"Once we acknowledge that the employees were speaking in metaphor, the NLRB's interpretation is not unreasonable," he added. "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."

The federal appeals court declined to review the board's order, saying its "findings are supported by substantial evidence."

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