This week, a construction industry employer learned that it was illegal for it to fire two union-represented employees who had told a supervisor “it’s going to get ugly” and that the supervisor “better bring [his] boxing gloves” after the supervisor disciplined a group of employees for exceeding a 15-minute break limit. The employer terminated the employees for violating its zero tolerance policy against workplace violence. The National Labor Relations Board, however, decided that the workers’ statements were protected activity. The NLRB disregarded the statements as threats of violence, choosing instead to call them “figures of speech.” The federal appeals court reviewing the NLRB decision agreed with the NLRB, and considered these statements to be a spontaneous reaction voicing resistance to a policy and not actual threats. To quote the dissenting judge who wrote about her concern over reinstating workers who challenge employers with threatening language: “So much for industrial peace.” Kiewit Power Constructors Co. v. NLRB, No. 10-1289 (D.C. Cir. Aug. 3, 2011).
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