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)