NLRB excuses worker’s use of F-Bomb

NLRBIf workers are continually provoked and goaded by managers, they may at some point respond emotionally.  Some may cry. Some may swear. Where is the line between an excusable outburst and misconduct that is serious enough to justify termination?

This issue was recently addressed by the National Labor Relations Board (NLRB) in a case involving a car salesperson, Nick Aguirre, who was fired after an outburst directed at his boss, Tony Plaza, the owner of Plaza Car Center of Yuma, Arizona.  In a split decision, the Board found that Plaza had violated the National Labor Relations Act (NLRA) and ordered Plaza to reinstate Aguirre with back pay.  Section 8 of the act protects employees who are acting to improve their working conditions. Continue reading “NLRB excuses worker’s use of F-Bomb”

National Chamber Lobbies Federal Cts

When people think  of lobbyists, they usually think of groups that work behind the scenes to  influence legislators in the U.S. Congress.

The U.S. Chamber of Commerce, however,  has had tremendous success “lobbying” federal courts  through  “friend of the court” briefs filed in  lawsuits  on behalf of its conservative  corporate clients. For example, the Chamber routinely opposes any perceived expansion of  worker rights and it usually prevails.

The Chamber, and its President Thomas Donahue, who earns a salary of $4.95 million a year, spend far more money to influence decision-makers than any other lobbying group.

The Center for Responsive Politics at  Open Secrets.org  estimated last year that the Chamber spent $1 billion from 1998 to 2013, which is three times the amount spent by the nearest runner up,  General Electric, which spent about  $294 million over the same period.   No union, labor, consumer or environmental group was listed in the top 20 U.S.  lobbying groups.

National Labor Relations Board

At present, the Chamber  is a critical player in a lawsuit opposing President Barack Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB) and the Consumer Finance Protection Bureau (CFPB).   Obama was forced to resort to recess appointments during Congress’s Christmas vacation in 2012 after encountering a wall of Republican resistance to his proposed appointments.

To challenge the recess appointments, the Chamber joined in a  lawsuit filed by Noel Canning  Corp., a small bottling company in Yakima, Washington. Noel Canning was the subject of  an adverse decision issued by the  NLRB in an unfair labor practices dispute. The Chamber argued that  the NLRB lacked the authority to issue the ruling because it was not comprised of constitutionally appointed board members.

The Court of Appeals for the D.C. Circuit ruled in the Chamber’s favor last year, holding that  Obama’s  appointments violated the Recess Appointments Clause of the U.S. Constitution.  The appeals court said recess  appointments may be made only during the recess that occurs  between each session of Congress and not during  breaks that occur  while Congress is still in session. The Court also said recess appointments can  only be made to fill  positions that become vacant during the recess.

The NLRB filed an appeal with the U.S. Supreme Court, which has a strong pro-business majority. The Court  heard the case in January and could, in its ruling, throw the NLRB into chaos and upset more than a thousand NLRB decisions issued during the past two years.

The Chamber also wants to “save” the CFPB by replacing its director with a bipartisan five-member commission and bring the CFPB under Congressional control. This  would castrate the new agency, which was created after massive fraud on Wall Street led to a world-wide economic meltdown from which the world (including the U.S.) has yet to recover.

Other Cases

On another front, the Chamber is opposing a proposed rule by the Occupational Safety and Health Administration to publicize companies’ health and safety records.

Last year, the Chamber  successfully opposed the so-called “poster rule” proposed by the NLRB to require employers to pose notices in the workplace informing workers of their right to work together to improve their working conditions.

The Chamber  does not limit itself to “lobbying”  the courts and the legislature. A Google search shows the Chamber in February inserted itself into a special election in Florida. According to Politico, the Chamber  funded a TV commercial attacking Democratic Congressional candidate Alex Sink for supporting the Affordable Care Act which, the commercial states, will mean that  300,000 Floridians will “lose their current coverage because of Obamacare.”

The  Chamber describes itself  as “the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.”

OSHA Rule Would Reveal Rogue Employers

librarycongress.twolaborersThe truth of the adage that knowledge is power is evident in backlash against the Occupational Safety and Health Administration’s proposed rule to publicize companies’ health and safety records.

OSHA wants to eventually create a public web site containing workplace health and safety information. Businesses already have to report this information to OSHA and this information already supposedly  is public. In reality, however, the information is not accessible.

At present, an employee has to submit a formal information request to a government bureaucrat or  an often reluctant and suspicious employer. Moreover, this needlessly arduous and time consuming process makes it is virtually impossible to compare workplaces and industries.  (e.g., Is this mining company a callous rogue or simply a representative of a dangerous industry?)

Released in November 2013, the proposed rule requires electronic submission of workplace illness and injury data information. The agency will provide a secure website for data collection and insures that any data publicized will not include employee-identifying information. In a press release,  OSHA argues that timely, establishment-specific injury and illness data “will help OSHA target its compliance assistance and enforcement resources more effectively by identifying workplaces where workers are at greater risk, and enable employers to compare their injury rates with others in the same industry.”

As usual, the opposition is led by the U.S. Chamber of Commerce,  fresh from its victory in defeating a proposed rule by the National Labor Relations Board  to require employers to post notices informing workers of their right to work together to improve their working conditions under the National Labor Relations Act (NLRA).

At a public meeting called by OSHA earlier this month, Baruch Fellner, a partner of Gibson, Dunn & Crutcher LLP, which represents the national chamber, argued that OSHA is not authorized by statute to create a new, publicly searchable database of workplace injury and illness records.”This is completely beyond OSHA’s mandate,” decried  Fellner. (This was the chamber’s winning argument  to defeat the NLRA posting rule.)

Opponents contend that making employers’ injury and illness data publicly available could unjustly harm an employer’s reputation because the data would not be put into context or include information about the employer workplace safety programs and improvements. They also expressed concern for the potential misuse of this data by business competitors or (gasp!) trial attorneys.

It is certainly understandable that businesses with inordinately high numbers of workplace casualties would want to keep this information under wraps. However, that same argument could be made by convicted felons and sex offenders. Which begs the question – why is the U.S. Chamber of Commerce choosing to align itself with rogue businesses that create or tolerate  conditions that result in needless workplace injuries and deaths.

Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, says the  reporting rule would permit employers, employees, the government and researchers to have better access to data that will encourage earlier abatement of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities. He notes that the proposal does not add any new requirement to keep records; it only modifies an employer’s obligation to transmit these records to OSHA.

It seems obvious that true public disclosure of health and safety data could change the equation for employers that now consider employee injuries and deaths to be cheaper than spending money on best practices and workplace safety.

If this is not OSHA’s mandate, what is?

The public has until Feb. 6, 2014, to submit written comments on OSHA’s proposed rule.

Under the proposed rule, initially establishments with more than 250 employees are required to electronically submit the records on a quarterly basis to OSHA. Establishments with 20 or more employees, in certain industries with high injury and illness rates, are required to submit electronically only their summary of work-related injuries and illnesses to OSHA once a year.

Social Media Puts Wal-Mart on the Defensive

Social media appears to be playing a significant role in an epic battle between Wal-Mart Stores, the world’s largest retailer,  and an American union that presumably would like to represent Wal-Mart workers, The United Food and Commercial Workers .

The union has channeled worker dissatisfaction with  Wal-Mart’s  wages, benefits and working conditions into an innovative social media campaign  featuring web sites funded by the union called OURWalmart (Organization United for Respect at Walmart) and Making Change at Walmart.    These sites include a fundraising arm for “striking” Wal-Mart associates, news about alleged poor labor practices by Wal-Mart, and slick videos of associates complaining about their treatment by Wal-Mart. On Tuesday, OURWalmart referred associates to information allegedly leaked by OccupyWallStreet.org on secret Wal-Mart power points   that tell managers how to fend off unionization efforts.

OURWalmart has garnered national publicity for labor protests at Wal-Mart stores across the nation and appears to be making some gains, possibly because of Wal-Mart’s seeming overreaction to the protests of associates and the reality of Wal-Mart’s stingy  pay and benefits.

The National Labor Relations Board (NLRB) Office of the General Counsel recently issued a consolidated complaint  against Wal-Mart alleging that the company violated the rights of its employees as a result of activities surrounding employee protests in 14 states. The complaint involves more than 60 employees, 19 of whom were discharged allegedly as a result of their participation in activities protected by the National Labor Relations Act (NLRA).  The NLRA guarantees the right of private sector employees to act together to try to improve their wages and working conditions with or without a union.

Wal-Mart contends that most of the associates were fired “for violating Walmart’s attendance policies that apply to all associates. Some of these individuals violated the attendance policy dozens of times in the last six months. In other cases, they were absent from work for more than eight days without letting anyone know when they would be returning to work. The facts present a very different story from what OUR Walmart/UFCW asserts.”

Wal-Mart has responded to the UCFW campaign with its own web site called, OURWalmartFactcheck.com , which states its purpose is “to examine claims and provide facts about the Organization United for Respect at Walmart (OUR Walmart) – a group funded by the United Food and Commercial Workers International Union. This site is sponsored and operated by Wal-Mart Stores, Inc.”

Fact checker

Ironically, Walmart’s OURFactcheck.com  on Tuesday appeared to need a fact checker.

The web site incorrectly quotes a story in The Daily News Telegram of Worchester, Massachusetts, as reporting  that the average the average Walmart associate earns $12.83 per hour, and less than 1/2 of 1% of associates earnclaim_source minimum wage.  Walmart provides a link to the The Telegram story, which quotes Kory Lundberg, a Walmart spokesman, as stating:  “In Massachusetts … the average wage of a full-time hourly associate at Walmart is $13.86. He also noted that the majority of Walmart employees are full time. Mr. Lundberg said less than 1/2 of one percent of all Walmart associates earn minimum. Walmart’s pay is comparable to other retailers; it has to be to stay competitive, he said.”

There’s obviously a difference between the average pay of a Walmart associate and the average wage in Massachusetts of a full-time hourly Walmart associate.

NLRB Complaint

According to the NLRB,  the consolidated complaint against Wal-Mart actually was authorized in November of 2013, but withheld until last week while the Office of the General Counsel engaged in failed settlement discussions with Wal-Mart.  Additional charges are under investigation.

The NLRB states that Wal-Mart unlawfully threatened employees with reprisal if they engaged in strikes and protests during two national television news broadcasts and in statements to employees at Walmart stores in California and Texas. At stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington, the NLRB says that Wal-Mart unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.  At stores in California, Florida, Missouri and Texas, the NLRB says Wal-Mart unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.

Note: OurWalmart includes a “legal disclaimer” stating that the UCFW is not trying to organize Wal-Mart workers but merely to “help Wal-Mart employees as individuals or groups” in their dealings with Wal-Mart.

NLRB Abandons Poster Rule

Given the hostile climate toward employee rights in federal courts, it is not surprising that the National Labor Relations Board (NLRB) has abandoned its efforts to require employers to post a notification informing workers of their rights to join together to improve their working conditions.

The NLRB announced this week that it will not file an appeal in the pro-business  U.S. Supreme Court to overturn two federal court decisions rejecting  the so-called poster rule.

The NLRB wanted private-sector employers to hang a poster in a conspicuous place (i.e. lunch room) informing workers of their rights under the 75-year-old National Labor Relations Act (NLRA).

Many American workers today, especially recent immigrants, are ignorant of their rights under the NLRA. The poster rule is also important for non-union workers who lack a designated bargaining representative. The NLRA can come into play in non-union workplaces when, for example, an employer fires a non-union worker for discussing a safety concern with a co-worker.

It is ironic that most private-sector employers already are required by federal law to post documents in the workplace informing workers of  their rights under Fair Labor Standards Act, the Family and Medical Leave Act, equal employment opportunity laws, etc.

The poster rule elicited immediate opposition from a broad coalition of national business groups after it was approved by the NLRB in 2011.

Twenty-one Republican members of the U.S. House of Representatives joined with the U.S. Chamber of Commerce  to oppose the poster rule, including John Kline (R-Minn.) chairman of the House Committee on Education and the Workforce.

The U.S. Court of Appeals for the Fourth Circuit in South Carolina  ruled  last summer that the NLRB lacks the authority to require employers to post notices either electronically or physically in a conspicuous place. The court said “ we find no indication in the plain language of the Act that Congress intended to grant the Board the authority to promulgate such a requirement.”

The U.S. Court of Appeals for the D.C. Circuit earlier ruled that the poster rule violate employers’ free speech rights.

Here are the rights that the U.S. Chamber of Commerce has worked so diligently to insure that American workers do not know they possess under the NLRA:

  •  Workers can organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment.
  • Workers can form, join or assist a union.
  • Workers can bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions.
  • Workers can discuss terms and conditions of employment or union organizing with co-workers or a union.
  • Workers can engage in protected concerted activities with one or more co-workers to improve wages, benefits and other working conditions.
  •  Workers can choose not to do any of these activities, including joining or remaining a member of a union.

 

Surveillance in the Workplace

OK for Employer, not Employee?

Whole Foods Market, Inc., the world’s largest retailer of natural and organic foods, has prevailed in a union  battle to overturn a store policy that prohibits employees from recording conversations.

Steven Davis, an administrative law judge for the National Labor Relations Board (NLRB), recently issued a decision dismissing a complaint filed against the store by  the United Food and Commercial Workers, Local 919, and Workers Organizing Committee of Chicago.

The union argued that the policy prevents workers from recording conversations related to protected activities, including allegedly unlawful statements made by supervisors.  Also, the union noted that recordings are valuable evidence in administrative or judicial forums in employment related matters.

“I agree,” wrote Judge Davis in his opinion, “ but the employee may present his contemporaneous, verbatim, written record of his conversation with the other party, and his own testimony concerning employment-related matters. Only electronic recordings of conversations is prohibited.”

Ironically, the policy in question also states that “many Whole Foods Market locations may have security or surveillance cameras operating in areas where company meetings or conversations are taking place, their purposes are to protect our customers and Team Members and to discourage theft and robbery.”

Judge Davis said the presence of company surveillance cameras does not make the policy unlawful because employees are advised of the presence of the cameras and the cameras address a legitimate business concern – to protect customers and employees and discourage theft.

The complaint alleged the policy violates Section 8(a)(1) of the National Labor Relations Act, which makes it illegal for an employer “to interfere with, restrain, or coerce employees” in the exercise of their rights to organize collectively.

Whole Foods maintained the purpose of the policy is “to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.”  A violation of the policy, which applies to tape recorders, cell phones and any electronic device, results in “corrective action, up to and including discharge.”

Marc Ehrnstein, the global vice president for Whole Food’s team member services,  said the policy applies to employees during working time – not their break time – and extends to all areas of the store including the parking lot and the area in front of the store. He said an employee’s recording of picketing in front of the store would be a violation of the rule.

Ehrnstein testified at a hearing last summer that Whole Food’s “core values” and “culture” encourage employees  to “speak up and speak out” on many issues. For example, he said each store has a “town hall” meeting once a year where employees meet with regional management leadership without store management being present.  Ehrnstein said  workers would be reluctant to voice their opinions about store management if they knew that their comments were being recorded.

Whole Foods, which operates 351 stores and employs 76,000 workers, adopted the policy in 2001.

Federal Courts Disregard Longstanding Worker Rights

Workers continue to lose ground in federal courts, where judges are disregarding a ruling by the National Labor Relations Board (NLRB) that says companies cannot require workers to sign away their right to bring class action arbitrations and lawsuits.

 The NLRB’s  administrative decision in January  served as a theoretical  counterpoint to an earlier 5-to-4  decision by the U.S. Supreme Court in AT&T Mobility v. Concepcion.

 The Concepcion case involved alleged false advertising by AT&T and a $30 claim by a California plaintiff, who sought to prosecute the case as  class  arbitration . As the  dissent noted in Concepcion: “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?”

 The Supreme Court majority held that the Federal Arbitration Act of 1925 preempts state laws that prohibit contracts from disallowing class action lawsuits  – which means that contracts can exclude class action arbitration. 

 The NLRB ruling involved national homebuilder D.R. Horton’s practice, begun in 2006, of forcing all employees to agree as a condition of employment, not to pursue class or collective litigation of claims in any forum –  arbitral or judicial.  In its ruling, the NLRB said it has long held –  “with uniform judicial approval” –  that the National Labor Relations Act “protects employees’ ability to join together to pursue workplace grievances, including through litigation.”  

According to Thompson Reuters’ journalist Nate Raymond,  courts generally are rejecting the NLRB decision, some on the grounds that the  Federal Arbitration Act controls, and others cite the Supreme Court’s Concepcion decision. For example, in recent months:

  •  U.S. District Judge Gene Pratter in Philadelphia agreed with Tenet Healthcare and confirmed an arbitrator’s finding that a nurse could not bring classwide wage-and-hour claims in arbitration. The nurse’s lawyer had cited D.R. Horton in arguing that the arbitrator had erred.
  •  U.S. District Judge D.P. Marhsall in Little Rock, Arkansas, on Aug. 1, 2012 concluded that the FAA trumped the NLRA. and compelled individual arbitration in a putative class action of guards suing Securitas Services Inc.   Marshall said that accepting the NLRB’s reasoning would mean favoring litigation over arbitration, in contrast to the federal policy of favoring arbitration.
  •  Employees at Waffle House Inc. cited D.R. Horton in an effort to convince U.S. District JudgeCarlos Murguia of Kansas City, Kansas, to not compel individual arbitration. They lost. “Although Concepcion may not speak directly to the issue before the court,” the judge wrote, “it does illustrate a guiding principle: arbitration agreements are enforceable even when they prohibit the use of a class action.”

 Thomas Reuter News Service reports that  judges in New York, California, Pennsylvania, Florida and Georgia have refused to allow employee class actions to move forward on the basis of the NLRB’s holding, in cases against Jenny Craig, Citigroup, P.F. Chang’s and UBS, among others.

The Concepcion decision likely will have a devestating impact upon workers who are cheated by unscrupulous employers out of overtime pay or hourly wages.

“Class claims frequently offer the only vehicle for consumers or employees to challenge unlawful actions that cause limited damages to each individual while often reaping millions for business,” law professor Ann C. Hodges writes in an American Constitutional Society blog analysis of D.R. Horton. “… In the workplace, Fair Labor Standards Act cases seeking minimum wage or overtime payments are most likely to be abandoned on this basis and Horton involved such a claim, alleging that the nonunion employer misclassified employees as exempt from overtime pay.”

The Progressive States Network (PSN) in a recent report entitled, Where Theft is Legal: Mapping Wage Theft Laws in the 50 States, estimates that more than 60 percent of low-wage workers suffer wage violations each week. On average, the PSN reports, low-wage workers lose $51 per week to wage theft, or $2,634 per year. For low-wage workers, that amounts to 15% of their annual income, at average earnings of $17,616 per year.

Federal judges are appointed for life (in good behavior) and earn annual salaries of $174,000..

* See earlier reporting by this blog on federal court judges’ hostility to employment discrmination lawsuits.

Business Opposes the NLRB ‘Poster Rule’

What They Don’t Want You to Know …

A melodrama is being played out in federal court about whether American workers should be informed of rights that they have possessed for 70 years under the National Labor Relations Act (NLRA).

Most workers think the NLRA pertains only to union organizing but it provides most workers the right to join together to improve their wages and working conditions with or without a union. The NLRA can come into play, for example, when an employer fires a non-union employee(s) for discussing a safety concern or other concerns about working conditions.

Employers are spending millions to prevent workers from knowing their rights!

The National Labor Relations Board (NLRB) issued a rule last summer that would have required most private sector employers to post a notice on Nov. 14, 2011 informing all workers of their rights under the NLRA.  This is called the NLRB “Poster Rule.” There was an immediate outcry from business groups, including the U.S. Chamber of Commerce, the National Association of Manufacturers and Associated Builders and Contractors (all of which filed lawsuits to block the rule).

Twice delayed, the rule was scheduled to go into effect on April 30, 2012. That’s not going to happen now because of recent federal court rulings in multiple lawsuits. Here are the legal developments:

  • The  U.S. Court of Appeals for the District of Columbia Circuit  in Washington, D.C., on April 17, 2012 issued a temporary injunction prohibiting implementation of the rule, pending appeal.
  • U.S. District Judge David Norton of South Carolina ruled on April 13, 2012 that the labor board went beyond its legal authority when issuing the rule.
  • U.S. District Judge Amy Berman Jackson of Washington, D.C., on March 2, 2012 ruled that the NLRB had the authority to adopt the poster rule, though she said the NLRB exceeded its authority with respect to certain penalty penalties for failing to comply with the rule.

The NLRB says the notice is needed because “many employees protected by the NLRA are unaware of their rights under the statute.”   Requiring employers to post the notice would, according to the NLRB, “increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute.”

Most union workers are aware that the NLRA protects their right to organize but non-union workers may have no idea that the NLRA also protects them,  whether they want to join a union or not. Section 7 of the NLRA guarantees employees the right to engage in “concerted activities” not only for self-organization but also “for the purpose of . . . mutual aid or protection. . . .”

The broad protection of Section 7 applies with particular force to unorganized employees who, because they have no designated bargaining representative, must “speak for themselves as best they [can].”  NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962).

At this point, it is anyone’s guess whether  the NLRA posters will ever see the fluorescent light of break rooms in businesses and factories around the country.  I suggest workers print out this article or an equivalent and (anonymously) post it on their employee bulletin board.

When is a threat … a threat?

August 4, 2011 – It is ever okay to issue a threat of any kind in the workplace?

Suppose a worker says he’s going to “fight” for his rights?

A case in Missouri demonstrates complexities of this issue.  What is a threat? Do intent and the context in which the threat is made matter?   Yes, say the National Labor Relations Board (NLRB) and the U.S. Court of Appeals, District of Columbia Circuit, Washington, DC.

Here’s the background:

Management at Kiewit Power Construction Co. voluntarily permitted electricians to take 15-minute breaks in the morning and afternoon. As the electricians began working farther away from the trailer containing the break room, they left the worksite earlier and the breaks were taking longer. The company, worried about lost productivity, said the electricians could no longer go to the break room, and provided a table and chairs so they could break where they were working.  The union objected and electricians resisted. The company began issuing warnings.

When a supervisor approached a group of electricians and said he was going to write them up, two electricians mouthed off.

One told the  supervisor he had “been out of work for a year,” and that if he got “laid off it’s going to get ugly.” He also said the supervisor “ better bring [his] boxing gloves.”

 The second electrician told the supervisor he had recently been out of work for eight months and repeated the other electrician’s comment that “it’s going to get ugly.”

Both were fired, and their union, the International Brotherhood of Electrical Workers, declined to pursue a grievance..

After an Administrative Law Judge upheld the dismissals, one of the electricians appealed to the National Labor Relations Board, which reinstated both workers, finding that in context their statements were not physical threats but merely figures of speech made in the course of a protected labor dispute. Kiewit Power appealed to the U.S. Court of Appeals, District of Columbia Circuit.

In a split 2-1 decision,  the appeals court on 8/3/11 sided with the NLRB and the electricians.

The majority agreed that a worker could be fired if he or she made a physical threat. They said the employee’s remarks were “intemperate” remarks rather than actual threats.  Also, the  Court reasoned the employer provoked the electricians by picking a public scene that was likely to lead to a quarrel, and that it was reasonable for the employees to respond “briefly, spontaneously, and verbally” to the disciplinary measure.  Importantly, they said,  the electricians did not demonstrate any physically threatening behaviors.

The majority said: “To state the obvious, no one thought that  the electricians 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.”

To illustrate a  real physical threat,  the majority compared a hockey player dropping gloves to battle another hockey play to Presidential candidate Sarah Palin promising “the gloves are coming off” in the 2008 election.

The majority said the employer’s “subjective perception of an employee’s statement” is not dispositive about what constitutes a threat,  and that it was appropriate for the NLRB to use an “objective standard” consistent with prior decisions.   Furthermore, the majority said it would defeat the ability of workers to unionize “if workers could be lawfully discharged every time they threatened to ‘fight’ for better working conditions.”

The dissent contended the electricians did threaten the management representative and that there was no reasoned basis for the majority’s overturning the original decision of the Administrative Law Judge. “Phrases like “workplace violence” and “going postal” manifest that today’s work setting is often far from calm, especially in precarious economic times … The  Board’s reinstatement—seconded by my colleagues—of employees who openly challenge by threatening language lawful decisions of their employer compels me to observe: ‘So much for industrial peace.’”

The bottom line is that the electricians got lucky!   Almost certainly, an employee who works for a non-union employer, even if provoked, would likely have faced a far different outcome.