Kiewit Power Constructors Co. v. National Labor Relations Board, 397 U.S. App. D.C. 290

Kiewit Power Constructors Co. worked as a subcontractor on a coal-fired plant in Weston, Missouri, under a 2008 collective bargaining agreement with the IBEW for 22 electricians.
Electricians routinely took 15-minute breaks in a dry shack outside the turbine building, causing total breaks to extend to 25–30 minutes.
Kiewit mandated “break in place” in the turbine building; electricians protested by continuing to use the dry shack, prompting individualized oral warnings.
On May 20, 2008, Field Superintendent Watts distributed warnings with union steward Potter; Judd and Bond made threatening remarks about enforcement and potential layoff.
Watts deemed Judd and Bond’s remarks threats; they were fired; Kiewit later created a shelter in the turbine building and rescinded reprimands except for Judd and Bond.
The NLRB reversed the ALJ, reinstated Judd and Bond, ordered back pay and expungement of records; the Board’s decision was reviewed by the DC Circuit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the place of the outburst weigh against protection?	Judd/Bond argued the outbursts occurred in a work area before other employees, favoring less protection.	Board held that employer’s choice of warning setting favored employees protesting the policy.	Place did not defeat protection; Board's conclusion reasonable.
Did the nature of the outburst constitute an unprotected threat?	Threats to bring boxing gloves were threats of violence enough to remove protection.	Words were intemperate but not unambiguous threats; protected as part of concerted activity.	Outbursts were not unambiguous physical threats; protected conduct.
Was the Board’s application of Atlantic Steel precedent correct?	Felix and related precedent show that obscene/denigrating outbursts can lose protection; here, threats existed.	Board appropriately balanced factors; not required to prove a literal threat; context matters.	Board’s balancing under Atlantic Steel correct; not arbitrary.
Should the petition for review be denied and enforcement granted?	Judds’ and Bonds’ statements were protected; discharge improper.	Board’s findings supported by substantial evidence; discharged appropriately under Act.	Petition denied; Board enforcement granted.

United Steelworkers of Am. v. NLRB, 983 F.2d 240 (D.C. Cir. 1993) (high deference to NLRB findings; substantial evidence standard)
INS v. Elias-Zacarias, 502 U.S. 478 (U.S. 1992) (record must show substantial evidence supporting agency findings)
Local 702, Int'l Bhd. of Elec. Workers v. NLRB, 215 F.3d 11 (D.C. Cir. 2000) (substantial evidence standard when Board disagrees with ALJ)
Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (standard to review Board findings; de novo review not required)
Felix Indus., Inc. v. NLRB, 251 F.3d 1051 (D.C. Cir. 2001) (outbursts can lose protection without a physical threat)
Aroostook Cnty. Reg'l Ophthalmology Ctr. v. NLRB, 81 F.3d 209 (D.C. Cir. 1996) (employer may discipline misconduct short of flagrant violence)
Vought Corp., 273 N.L.R.B. 1290 (1984) (words can exceed protection when context shows unprotected intent)
Sw. Bell Tel. Co., 694 F.2d 974 (5th Cir. 1982) (public confrontation at work; still protected where employer invited discussion)