Kiewit Power Constructors Co.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 708 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 150
708
Kiewit Power Constructors Co. and Brian Judd. Case
17–CA–24192
August 27, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On December 31, 2008, Administrative Law Judge
William L. Schmidt issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
I. INTRODUCTION
The complaint alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act by discharging em-
ployees Brian Judd and William Bond. The judge dis-
missed the complaint, finding that the discharges were a
lawful response to unprotected physical threats made by
Judd and Bond. The General Counsel has excepted to
the dismissal, contending that Judd and Bond made the
statements while engaged in a protected concerted protest
about working conditions and, as such, they did not lose
the Act’s protection. We find merit in the General Coun-
sel’s exceptions.
II. FACTS
In 2008,2 the Respondent was engaged in the construc-
tion of a turbine and related structures at a Missouri
powerplant. Electricians working there for the Respon-
dent were represented by the International Brotherhood
of Electrical Workers Local 124 (the Union). Although
the collective-bargaining agreement covering the electri-
cians working on the project only referenced a lunch-
break, the Respondent agreed that the electricians could
also take 15-minute morning and afternoon work breaks.
The electricians typically took these breaks in trailers
known as “dry shacks,” which were located outside of
the turbine building construction area. As construction

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 All dates are in 2008.
of the turbine building progressed to upper-floor loca-
tions, the electricians left their work areas in advance of
the scheduled breaktime and spent a full 15 minutes in
the dry shacks before returning to work. This practice
resulted in actual down time of 25 to 30 minutes for each
break.
In mid-May, the Respondent decided to require the
employees to break in place at their workstations in order
to limit the break periods to the intended 15 minutes.
The electricians rebuffed the Respondent’s initial efforts
to secure compliance with this policy. Nonsupervisory
crew foremen objected that breaking in place was neither
sanitary nor safe. Union Steward Mike Potter expressed
the same concerns to the Respondent’s management.
The electricians continued to take breaks in the dry
shacks.
On May 20, the Respondent informed the electricians
that they would be disciplined if they continued to take
breaks in the dry shacks. Steward Potter discussed this
policy with several electrician crews, including the crew
led by Foreman Andy Holloway, and reiterated the Un-
ion’s opposition to the break-in-place policy. After-
wards, Holloway’s crew and others took their morning
break in the dry shacks and exceeded the 15-minute
breaktime. The Respondent’s officials observed this ac-
tivity and prepared written notations of verbal warnings
for each of the electricians involved.3
At about 11 a.m., Electrical Superintendent Kendall
Watts set out to distribute the warnings. Steward Potter
accompanied him as the electricians’ union representa-
tive. Watts first convened the crew of Foreman Tim
Walker where it was working on an upper floor of the
turbine building. After Watts distributed the warnings,
Potter told the crewmembers that he and the Union dis-
puted management’s action. Some of the crew also ex-
pressed to Watts their disagreement with the Respon-
dent’s break-in-place policy.
Watts and Potter next visited the area where Hollo-
way’s crew was working. As before, Watts distributed
the warnings and Potter stated the Union’s position. One
crewmember asked if the employees would be written up
again if they repeated their conduct during the afternoon
break. Watts answered affirmatively. At this point, ac-
cording to Watts’ credited testimony, electrician Brian
Judd responded in an angry tone that he had been out of
work for a year, that “it was going to get ugly” if he were

3 The Respondent maintains a system of progressive discipline pro-
viding that an employee will receive a verbal warning for a first of-
fense, a written warning for a second offense, and either suspension or
termination for a third offense. However, an employee may be termi-
nated for serious misconduct without regard to the progressive disci-
pline system.
KIEWIT POWER CONSTRUCTORS CO. 709
terminated, and that Watts had “better bring [his] boxing
gloves.” Electrician William Bond then said that he had
been out of work for 8 months and it was going to get
ugly.
Watts testified that he considered the statements by
Judd and Bond to be physical threats against himself and
his superiors. He made no response to them, “just kind
of got away from the situation.” Watts did not mention
the incident as he and Potter walked to the worksite of a
third electrician crew. After delivering warning notices
to this crew, Watts reported the incident with Judd and
Bond to the Respondent’s electrical general superinten-
dent, Roger Holmes.
The next day, the Respondent terminated Judd and
Bond for threatening Watts. In addition, the Union’s
business agent and the Respondent’s officials toured the
turbine building, identified a location where electricians
could take their breaks, and agreed that the Respondent
would rescind its May 20 warnings.
III. JUDGE’S DECISION
The judge found that Judd, Bond, and other electri-
cians who protested the break-in-place policy and disci-
pline for violations of this policy on May 20 were en-
gaged in protected concerted activity. Nevertheless, he
found that the Respondent did not violate the Act by ter-
minating Judd and Bond. The judge applied the four-
factor test set forth in Atlantic Steel Co.4 to determine
whether employee misconduct that occurs during the
course of otherwise protected activity is so opprobrious
as to lose the protection of the Act. The four factors are:
(1) the place of the discussion; (2) the subject matter of
the discussion; (3) the nature of the employees’ outburst;
and (4) whether the outburst was provoked by the em-
ployer’s unfair labor practice. The judge summarily
concluded that each of these factors weighed against
finding that the angry remarks by Judd and Bond were
protected.
IV. DISCUSSION
We agree with the judge that Judd and Bond were en-
gaged with other electricians and their union steward in a
protected concerted protest of the Respondent’s break-in-
place policy and disciplinary action enforcing that policy.
We also agree that the multifactor Atlantic Steel test ap-
plies in determining whether Judd and Bond engaged in
misconduct that cost them statutory protection and per-
mitted their discharge. For the reasons that follow, how-
ever, we find contrary to the judge that the Atlantic Steel
factors weigh in favor of finding that the employees did
not lose the Act’s protection by their remarks to Watts.

4 245 NLRB 814 (1979).
The judge found that the first factor of the Atlantic
Steel test—the place of the discussion—weighed against
protection, because the employees’ remarks were made
“in a work area in front of other employees.” The Board
has found that an employee’s outburst against a supervi-
sor in a place where other employees could hear it would
tend to affect workplace discipline by undermining the
authority of the supervisor.5 Obviously, the remarks by
Judd and Bond were heard by other crewmembers.
However, the Respondent chose to distribute the warn-
ings in a group employee setting in a work area during
working time, and should reasonably have expected that
employees would react and protest on the spot.6 Thus,
the Respondent is hardly in a position to complain that
other employees overheard Judd’s and Bond’s remarks.7
We therefore find that the factor of the location of
Bond’s and Judd’s protests tends to favor protection. At
the least, it is neutral.
As to the second Atlantic Steel factor—the subject
matter under discussion—the judge found that the work
break issue was subject to the Respondent’s unilateral
control and that it had previously informed the electri-
cians that it was going to mandate a 15-minute break-in-
place policy. This may be true, but the subject matter
under discussion on May 20, and the remarks by Bond
and Judd during this discussion, directly related to the
electricians’ union-supported protest of the Respondent’s
use of discipline to enforce that policy and to working
conditions that they reasonably considered to be unsafe
and unsanitary. Notably, this protest culminated the next
day in an agreement between the Union and the Respon-
dent to rescind the May 20 warnings and to identify a
specific location within the turbine building where elec-
tricians could take their 15-minute breaks. Thus, this

5 E.g., DaimlerChrysler Corp., 344 NLRB 1324, 1329 (2005).
6 See Noble Metal Processing, Inc., 346 NLRB 795 (2006) (an em-
ployee meeting called by the respondent to announce impending
changes that affected employees’ working conditions was a forum
where employees could be expected to express their views). See also
Cibao Meat Products, 338 NLRB 934, 934–935 (2003), enfd. 84 Fed
Appx. 155 (2d Cir. 2004), cert. denied 543 U.S. 986 (an employee who
protests a change in the terms and conditions of employment during an
employee meeting in which the employer announces the change does
not lose the protection of the Act by virtue solely of the forum in which
he protests).
7 See Brunswick Food & Drug, 284 NLRB 663, 665 (1987) (finding
that an employee was provoked in front of customers and, “[i]n any
event, the Respondent selected the setting for this confrontation, and it
is thus hardly in a position to object that customers were drawn into
it”), enfd. mem. sub nom. NLRB v. Kroger Co., 859 F.2d 927 (11th Cir.
1988); see also NLRB v. Southwestern Bell Telephone Co., 694 F.2d
974, 978 (5th Cir. 1982) (per curiam) (observing that the employer
“deliberately chose to begin the dispute in the workroom” in view of
other employees and therefore “can hardly be heard to complain about
the public nature” of that part of the discussion).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 710
factor weighs in favor of the protection of Bond’s and
Judd’s conduct.
Turning to the third Atlantic Steel factor—the nature of
the employees’ outburst—the judge found that Bond’s
and Judd’s remarks amounted to “an outright threat . . .
uttered in anger toward their immediate supervisor.”
However, the Board has long recognized that “disputes
over wages, hours, and working conditions are among
the disputes most likely to engender ill feelings and
strong responses.” Consumers Power Co., 282 NLRB
130, 132 (1986). In assessing whether an employee’s
protected, concerted activity loses the protection of the
Act, the Board has found that a line “is drawn between
cases where employees engaged in concerted activities
that exceed the bounds of lawful conduct in a moment of
animal exuberance or in a manner not motivated by im-
proper motives and those flagrant cases in which the
misconduct is so violent or of such a character as to ren-
der the employee unfit for further service.” Prescott In-
dustrial Products Co., 205 NLRB 51, 51–52 (1973).
Consistent with the foregoing principles, we find that
the remarks by Judd and Bond fall short of the kind of
unambiguous physical threat that would render them
unfit for service. All that happened after Watts distrib-
uted warning notices and confirmed that continued viola-
tions of the break-in-place policy would lead to further
disciplinary action is that Judd angrily said the situation
could “get ugly” and Watts had “better bring [his] boxing
gloves,” and Bond then agreed that things could get ugly.
These were single, brief, and spontaneous reactions by
each employee, not premeditated and sustained personal
threats against Watts.8 Although intemperate, they were
not unambiguous or “outright” (as the judge put it)
threats of physical violence. To the contrary, the em-
ployees’ prediction that things could “get ugly” reasona-
bly could mean nothing more than that the Respondent’s
continuation of the disciplinary enforcement of its break-
in-place policy would engender grievances or a labor
dispute. Judd’s additional remark that Watts had “better
bring [his] boxing gloves” is more likely to have been a
figure of speech, emphasizing employees’ opposition to
the break-in-place policy, rather than a literal invitation
to engage in physical combat.
Nothing about the context of this incident suggests that
the remarks portended physical confrontation. There is,
for instance, no evidence that either Judd or Bond made
any accompanying physical gestures or movement to-
wards Watts. In fact, there is no evidence that they said

8 Contrast this case with Trus Joist MacMillan, 341 NLRB 369, 371
(2004) (Board majority concluded that an employee lost the protection
of the Act where he planned and deliberately launched a personal attack
on his superiors that included a series of profane verbal insults).
or did anything further. Moreover, although Watts testi-
fied that he subjectively perceived the remarks to be a
personal threat, he made no response to them at the time
and did not even mention the incident to Steward Potter
as they walked to the location of the next electrician
crew.
The Board has previously found that statements similar
to those at issue, without more, were not so opprobrious
as to warrant removal of statutory protection. For exam-
ple, in Leasco, Inc., 289 NLRB 549, 549 fn. 1 (1988), the
Board found that an employee’s statement to a supervi-
sor that “If you take my truck, I’m kicking your ass right
now” made in the course of engaging in concerted activ-
ity, was “a colloquialism that standing alone does not
convey a threat of actual physical harm.”9 Similarly, in
Fairfax Hospital, 310 NLRB 299, 300 (1993), the Board
found that an employee’s statement that her supervisor
could expect “retaliation” as a result of the unlawful en-
forcement of no-solicitation/no-distribution and bulletin
board rules was inherently ambiguous and could have
meant no more than that the union would respond in kind
to the respondent’s propaganda. The Board reasoned that
“[u]nless accompanied by threats of egregious or outra-
geous conduct,” this “oblique” statement was protected.
Based on this analysis, we find that the statements by
Judd and Bond were ambiguous and, in the absence of
any accompanying conduct, cannot be construed as un-
protected physical threats. We therefore find that this
factor weighs in favor of the employees’ conduct retain-
ing the protection of the Act.
Regarding the fourth Atlantic Steel factor—provoca-
tion—the conduct at issue was not provoked by an unfair
labor practice by the Respondent. Accordingly, this fac-
tor does not weigh in favor of protection of the employ-
ees’ conduct.
In sum, under Atlantic Steel, supra, we find that the
factors of subject matter and nature of the outburst favor
protection of Judd’s and Bond’s conduct, that the factor
of place tends to favor protection or is at least neutral,
and that only the factor of provocation does not favor
protection. Thus, contrary to the judge, we find that
these two employees did not lose the protection of the
Act when they spontaneously uttered their statements in
opposition to the imposition of discipline enforcing the
disputed break-in-place policy. Accordingly, we con-
clude that the Respondent violated Section 8(a)(3) and
(1) of the Act by terminating Judd and Bond.

9 Accord: Vought Corp., 273 NLRB 1290, 1295 (1984), affd. 788
F.2d 1378 (8th Cir. 1986) (employee’s statement to a supervisor that
“I’ll have your ass” was no more than a threat to file a grievance, or a
Board charge, or to report the supervisor to higher management).
KIEWIT POWER CONSTRUCTORS CO. 711
Under longstanding Board precedent, this case is gov-
erned by the Atlantic Steel analysis applied above. Our
dissenting colleague makes a gesture toward applying
Atlantic Steel, but essentially views this case as being
controlled by: (1) the crediting of Supervisor Watts that
he felt threatened by the employees’ statements; (2) the
Respondent’s asserted zero tolerance for threatening be-
havior; and (3) the need for the Board to accommodate a
growing employer concern about workplace violence.
As to point 1, Watts’ subjective perception is not disposi-
tive in determining whether employees have forfeited
their statutory rights. “Rather, the question is an objec-
tive one; i.e., whether the alleged misconduct is so seri-
ous that it deprives the employees of the protection the
Act normally gives for engaging in concerted activity.”
Shell Oil Co., 226 NLRB 1193, 1196 (1976), enfd. 561
F.2d 1196 (5th Cir. 1977).
Second, the legal question presented here cannot be
answered by reference to the Respondent’s asserted zero
tolerance for claimed workplace threats. As the judge
observed, this is not a Wright Line10 case. Therefore,
whether the Respondent consistently disciplined or dis-
charged employees in similar circumstances is beside the
point. Rather, it is for the Board to determine whether
Bond’s and Judd’s intemperate conduct, committed in
the course of otherwise protected activity, cost them the
protection of the Act. See NLRB v. Thor Power Tool
Co., 351 F.2d 584, 587 (7th Cir. 1965). By making that
determination, we do not substitute our judgment for that
of the employer, as our colleague claims, but apply set-
tled Board and court precedent.
Finally, there is no basis for our colleague’s lamenta-
tion that we are discouraging employers from responding
effectively to legitimate threats of workplace violence.
The Board has recognized the legitimate need of em-
ployers to guard against workplace violence, and we do
so here. Cf. Pactiv Corp., 337 NLRB 898 (2002), rev.
denied sub nom. Operating Engineers Local 470 v.
NLRB, 350 F.3d 105 (D.C. Cir. 2003) (affirming judge’s
finding that an employer did not unlawfully contact a
local sheriff about an employee’s threatening behavior).
Unlike our colleague, however, we are unwilling to adopt
an essentially per se limitation on the Board’s traditional
protection of Section 7 rights whenever an employer
claims concern about violence. Instead, we shall con-
tinue to examine each case on its merits, balancing such
claims against the rights of those engaged in protected
activities. That is the essence of Board adjudication, not
“activism.”

10 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(3) and
(1) by discharging Brian Judd and William Bond we
shall order that the Respondent remove from its files any
reference to their unlawful discharges, and notify them in
writing that this has been done. We shall also order that
the Respondent offer Brian Judd and William Bond rein-
statement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from
the date of discharge to the date of a proper offer of rein-
statement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter-
est, as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Kiewit Power Constructors Co., Weston,
Missouri, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for engaging in union or other concerted
protected activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Brian Judd and William Bond full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
(b) Make Brian Judd and William Bond whole for any
loss of earnings and other benefits resulting from the
discrimination against them, in the manner set forth in
the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 712
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Weston, Missouri facility copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms
provided by the Regional Director for Region 17, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 21, 2008.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER SCHAUMBER, dissenting.
An unfortunate development of our times has been the
escalation and severity of workplace violence and the
proliferation of litigation flowing from such incidents.
Behavior that might once have been accepted as part of
the “rough and tumble” of labor relations must now be
viewed through a different lens by employers confronted
with the task of protecting both the safety of their em-
ployees and the corporate fisc against protracted and ex-
pensive lawsuits alleging a host of claims from negligent
supervision and hiring to hostile work environments. In
this case, after a pattern of open defiance of employer
directives to break “in place,” two employees, faced with
a verbal reprimand, told their supervisor that if they re-
ceived additional discipline, things would “get ugly.”
One employee stated that if his supervisor was going to
discipline them further, he “better bring [his] boxing
gloves.” Both men asserted that, before their job with
the Respondent, they had been out of work for a signifi-
cant period—adding a sense of desperation to their

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
threats. Their supervisor—the person in the best position
to gauge the intensity of the employees’ threats—
testified that he felt physically threatened by the confron-
tation. The Respondent, applying a uniformly followed
zero-tolerance policy against threats, terminated the em-
ployees. The judge—the person in the best position to
evaluate the witnesses’ conflicting versions of events—
was persuaded by the supervisor’s testimony and found
the employees’ conduct unprotected and the discipline
warranted. In my view, the Board should not, on the
basis of a cold record, substitute its judgment for that of
the judge and the Respondent. Therefore, I respectfully
dissent.
On May 19 and again on May 20, 2008, the Respon-
dent specifically informed its foremen and their crews
that they must take their breaks “in place” because walk-
ing to the “dry shacks” as they usually did was extending
the breaks from 15 to 30 minutes. The men were warned
that they would be disciplined if they did not comply.
Nonetheless, on May 20, the men chose to take their
morning break in the “dry shacks.” Superintendent Ken
Watts visited each crew separately and issued notices of
a verbal warning. In one of these meetings, employee
Judd told Watts, “I’ve been out of work for a year. If I
get laid off it’s going to get ugly and you better bring
your boxing gloves.” Watts testified that Judd’s tone
was angry. Employee Bond supported Judd and stated,
“I’ve been out of work for 8 months, it’s going to get
ugly.” Watts felt and heard the force of the men’s state-
ments, their tone of voice, and their body language. He
stated that he felt physically threatened, and he reported
this to his supervisor.
Under the Atlantic Steel1 factors, the place of the dis-
cussion and whether the employees’ conduct was pro-
voked by the Respondent’s unfair labor practice are neu-
tral factors. As to the subject of the discussion, the judge
found against protection because the 15-minute breaks at
issue, which were not provided by the contract, were
exclusively within management’s right of control. The
majority, however, argues in favor of protection because
the principal point of discussion was safety, and employ-
ees claimed that breaking in place was unsafe and un-
sanitary. Regardless of the merits of these opposing
views, I do not find that the subject of the discussion is
dispositive. Rather, the dispositive factor, consistent with
most cases analyzed under the Atlantic Steel factors, is
the nature of the employees’ outburst. As the judge ob-
served, “[T]his case ultimately boils down to which of
the sharply conflicting versions of testimony of the wit-

1 245 NLRB 814 (1979).
KIEWIT POWER CONSTRUCTORS CO. 713
nesses” should be credited and what inferences a trier of
fact can reasonably draw from that testimony.
In resolving the testimonial conflicts, the judge con-
sidered “numerous factors,” including “witness bias,
consistency, corroboration, the inherent probabilities,
reasonable inferences available from the record as a
whole, the weight of the evidence, and witness de-
meanor.” The judge, who observed Watts on the witness
stand, credited his testimony and discredited contrary
testimony by Judd and Watts. The judge, recognizing
the legitimate prerogatives of management to ensure
safety and discipline in the workplace, found the conduct
unprotected, and the Board should defer to that demean-
or-based judgment.
Instead, my colleagues speculate, on the basis of a cold
record transcript, that Judd’s “boxing glove” threat was
“more likely to have been a figure of speech . . . than a
literal invitation to engage in physical combat.” And
they conclude that the employees’ statements were “am-
biguous.” But Watts did not find them ambiguous; they
were clear threats. The judge credited Watts, and my
colleagues identify no reasoned basis for overturning that
credibility resolution.
The cases the majority cites are no substitute for the
credited testimony of witnesses and careful balancing of
the evidence by the trier of fact. One can easily cull from
the hundreds of volumes of Board case law decisions in
which statements found to be protected may, on paper,
appear more menacing or profane than those used here.
However, it is not the words themselves, but the manner
in which they are delivered and the surrounding circum-
stances that convey the speaker’s intent. Here, we know
that the message delivered was a clear threat—the words
make that manifest, and if there were any doubt as to
how the words were perceived, Watts dispelled them to
the satisfaction of the judge. We know that the Respon-
dent had a zero-tolerance for such threats, and there is no
evidence that policy was disparately applied. My col-
leagues simply substitute their judgment for that of the
Respondent and the judge.
I further disagree with the majority’s characterization
of Watts’ testimony as “subjective perception.” As
an eyewitness to the employees’ conduct, Watts was
uniquely positioned to objectively judge the severity and
intent of the employees’ outbursts. Conversely, the ma-
jority is uniquely unqualified, on the basis of the cold
record, to objectively evaluate the strength of the em-
ployees’ threats toward Watts. Watts provided the “best
evidence” and I, like the judge, find his testimony dispo-
sitive of the nature of the employees’ threat.
It is not the province of the Board to discourage em-
ployers from responding forcefully to employees’
threats, or to substitute its subjective and speculative
judgment for the measured and thoughtful findings of a
trial judge. Were this simply an isolated instance of such
curious activism, it might be less troublesome. Instead,
however, it appears to be a growing and disturbing
trend.2 I therefore dissent.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in union or other pro-
tected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Brian Judd and William Bond full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without pre-
judice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL, make Brian Judd and William Bond whole
for any loss of earnings and other benefits resulting from
their discharges, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Brian Judd and William Bond, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that the discharge will not be used
against them in any way.

KIEWIT POWER CONSTRUCTORS, CO.

2 See, e.g., Plaza Auto Center, 355 NLRB No. 85 (2010).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 714
Anne C. Peressin, Atty., for the General Counsel.
Kimberly Seten, Atty., with Robert J Janowitz, Atty., on the
brief (Constangy, Brooks & Smith, LLC), of Kansas City,
Missouri, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. This case
concerns the May 21, 2008,1 termination of two journeyman
electricians, Brian Judd (Judd) and William R. Bond IV
(Bond), by Kiewit Power Constructors Co. (Respondent or
Kiewit). Judd instituted the proceeding by filing an unfair labor
practice charge on June 11. He amended his charge on July 25,
and the Regional Director issued the formal complaint on July
31. The complaint alleges that Kiewit violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act) by dis-
charging Judd and Bond because they engaged union and other
activities protected by the Act. Kiewit filed a timely answer
denying that it committed the unfair labor practices alleged.
I heard this case at Overland Park, Kansas, on October 7 and
8, 2008. All parties had the full opportunity to call and exam-
ine witnesses, to introduce relevant documentary evidence, to
argue procedural and substantive issues, and to file posthearing
briefs. After carefully considering the record2 in light of my
credibility determinations, and the argument contained in
posthearing briefs filed by the General Counsel and Respon-
dent, I have concluded that Respondent did not violate the Act
based on the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation, with an office in
Overland Park, Kansas, and a jobsite at the IATAN Power
Plant in Weston, Missouri, is engaged in the design and con-
struction of power and mechanical process facilities, including
coal-fired powerplants. In the 12-month period ending May 31,
2008, Respondent purchased and received at its Weston, Mis-
souri jobsite goods valued in excess of $50,000 directly from
locations outside the State of Missouri. Accordingly, I find that
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that it
would effectuate the purposes of the Act for the Board exercise
its jurisdiction to resolve this labor dispute. Respondent also
admits, and I find, that the International Brotherhood of Electri-

1 Unless shown otherwise, all further dates refer to the 2008 calendar
year.
2 The record contains a few incidental errors that are of little or no
significance. However, I find that at Tr. 43,L. 9, witness Potter’s refer-
ence to “Ken Watts” should have been to Ken Gibson. Accordingly, I
correct the record in that respect. In addition, a transcript anomaly
appears at Tr. 179, LL. 1 through 3 preceding the letter “Q” in that the
material there should appear immediately before the word “witness” at
Tr. 182,L. 9. The examination of witness Dwayne Teeters that appears
from the letter “Q” at Tr. 179, L. 3 through Tr. 182, L. 8 was conducted
by counsel for the General Counsel. Accordingly, I hereby correct the
record as described in order to accurately reflect the full scope of Tee-
ters’ direct examination.
cal Workers, Local 124 (Local 124) has been at all material
times a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Kansas City Power and Light (KCPL) owns and operates the
IATAN powerplant in Weston, Missouri, a coal-powered facil-
ity generating electricity. Currently, it is engaged in construct-
ing a second turbine and related structures at that plant. KCPL
retained Alstrom Power Company to design and build the new
boiler and air-quality control systems.
KCPL contracted with Kiewit to construct all portions of the
project not included in the Alstrom contract such as the turbine
building, the cooling tower, the related peripherals, most of the
electrical installations, and even some of the piping inside of
the Alstom areas portion of the project. Kiewit’s contract for
its portion of this expansion project is valued at approximately
$400 million. For its work, Kiewit has primarily employed
tradespersons skilled as pipefitters, boilermakers, electricians,
ironworkers (both structural steel and rebar specialists),
carpenters, and laborers. Kiewit maintains and applies the
terms of the International Brotherhood of Electrical Workers’
(IBEW) National Maintenance Agreement (NMA) to its elec-
trical workers at IATAN. (See R. Exh. 6.) It applies similar
agreements with other building trade unions whose members
work at that job.
Ron Hutchins managed Kiewit’s IATAN construction work
from the start of the project. Dale Keech, the operations man-
ager, reported to Hutchins. Kiewit’s supervisory hierarchy
below Keech for the electrical work included, in descending
order, the following persons: Ken Gibson, the electrical general
superintendent; Roger Holmes, the lead electrical superinten-
dent; and two electrical superintendents, Kendall (Ken) Watts
(also an engineer), and Don Volentine.3 A general foreman,
Roger Allen, oversaw the four electrical crews. Each crew
consisted of a working foreman and three or four journeyman
electricians plus an apprentice here and there.4 Superintendent
Volentine directly supervised the crews headed by Foreman
Vince Schilling; Watts supervised the crews of Foreman Andy
Holloway, James Sowerby, and Tim Walker.
The NMA provides employees with a 30-minute lunch pe-
riod from 12 to 12:30 p.m. or at other times mutually agreed
upon for employees assigned to shift work. See article XV
Work Hours Per Day, paragrahs 1 and 2. However, that
agreement does not require signatory employers to provide
other breaks during the regular workday. At the prejob or

3 Both Gibson and Holmes work for Massachusetts Electric Con-
struction Company, a Kiewit subsidiary in Boston. Gibson did not
testify. By the time of the hearing, he had retuned to his home base in
Massachusetts.
4 All agree that general electrical foreman and the crew foremen be-
long in the electricians’ bargaining unit. The NMA covers all electrical
employees except “General Superintendents, Superintendents, Assistant
Superintendents, office and clerical Employees, watchmen, or other
professional or supervisory Employees as defined in the National Labor
Relations Act.”
KIEWIT POWER CONSTRUCTORS CO. 715
markup conference he conducted before work started, Hutchins
told the union officials present (including those from Local
124) that Kiewit would provide all employees with two addi-
tional break periods each day, one in the morning from 9:30 to
9:45 a.m. and one in the afternoon from 3 to 3:15 p.m. Kiewit
provided a number of “dry shacks” equipped with microwave
ovens, coffee pots, and other small appliances for use by em-
ployees during their break periods. The various tradesmen
gravitated to particular dry shacks for their breaks and did not
mingle with workers from another trade. Under the NMA,
employees must be at their workstations at the starting time.5
An NMA employer may discharge, suspend, or discipline
employees for proper cause. See article XXIII, Management
Clause. The agreement contains a five-step grievance proce-
dure (art. VI Grievances) that culminates in binding arbitration.
Kiewit maintains a system of progressive discipline that gener-
ally provides for an oral warning initially, a written warning for
the next offense, and suspension, or termination for a third
offense. However, in the case of an egregious offense, an em-
ployee may be terminated immediately.
The NMA also provides for “reasonable access” to the job-
site by a local union representative, and for the appointment by
the local union business manager of a jobsite union steward.
See article VII, Union Representative, paragraphs 1 and 2. At
relevant times, Mike Potter served as the electricians’ union
steward at the IATAN job. Throughout his tenure, Potter had
regular interaction with the Kiewit supervisory hierarchy. Most
generally, however, Potter conferred with the electrical general
superintendent Ken Gibson about jobsite issues.
Watts began working on the IATAN project as the lead elec-
trical engineer in June 2007. He received a promotion to a field
superintendent position in late April or early May 2008 shortly
before the events giving rise to this case unfolded. Judd and
Bond worked on Foreman Holloway’s crew under Superinten-
dent Watts’s direct supervision. Judd started at the IATAN job
in December 2007; Bond started in mid-May 2008.
B. The Dispute over the Length and Location
of Rest Breaks
The bulk of Kiewit’s electricians worked on the turbine
building.6 At breaktime, some of the electricians went to the
dry shacks located directly across a dirt road north of that job-
site while others used dry shacks on the east side of the turbine
building about 100 yards away. As indicated below, the crews
became insistent about using the dry shacks rather than remain-
ing at or near their workstations for their breaks ostensibly
because many felt the atmosphere in the turbine building con-
tained too much dust and fly ash, and because they wanted a

5 Art. XV, par. 5, states: “Employees shall be at their posts prepared
to start work at the regular starting time.”
6 However, the electrical crews perform work at other plant locations
on an as needed basis. Notable among those occasions occurred on
May 15 when Foreman Holloway’s crew worked in the vacuum com-
pressor building a short distance from the location where KCPC stock-
piles fly ash, a semitoxic residue left from burning coal for the boilers.
During that day, a serious fly ash spill occurred at the dumpsite that
required the workers to evacuate the building.
safe location where they could remove their personal protective
equipment during the rest break.
As the turbine building began to take shape, and the electri-
cians’ work locations moved on to the second and third floors
of the building, the amount of time required to reach the dry
shacks at breaktime began to concern management. Those on
the upper floors could only reach ground level by way of two
narrow stairwells on the exterior of the building. According to
Union Steward Potter, workers would leave their work area
perhaps 2 to 4 minutes early so they would be at their chosen
dry shack at the start of the scheduled breaktime. Others pro-
vided similar estimates: Foreman Holloway said it took 3 or 4
minutes to reach the dry shack at breaktime (Tr. 87, LL. 21–
23); Billy Bond said a couple of minutes (Tr. 151, LL. 5–6);
and Brian Judd estimated 3 to 5 minutes. After they arrived at
the dry shacks, the workers made a practice of remaining there
for the full 15-minute break period before starting their return
to their assigned area.
Superintendent Watts noticed that the breaktimes among the
electricians had been extended to about 25 or 30 minutes at
times and mentioned it to his immediate superior, Lead Super-
intendent Holmes.7 Holmes, who also estimated the electri-
cians rest breaks lasted half an hour, as well as several other
managers began to suggest that the breaktime should be
brought under control. Around May 15, Watts spoke to Elec-
trical General Foreman Allen a couple of times about reducing
the amount of time the men took at breaktime in hopes that the
crew foremen could resolve the problem without the need for
any disciplinary action. Watts failed to see any results after his
first conversation with Allen. When Watts again spoke to Al-
len, he suggested that the electricians break in place but Allen
complained about the Turbine building being too dirty to use as
a break area. Later, Kiewit arranged to have some tables and
chairs put around various areas of the turbine building for the
workers to use on their breaks. Neither Watts’ discussions with
Allen nor installation of tables and chairs had much of an im-
pact as most of the electricians continued to use the dry shacks
for their break periods.
Union Steward Potter did not work the week of May 12.
When he returned, Louie Brinkoetter, Potter’s substitute as
steward, told him that an issue had arisen that week about the
break periods. Brinkoetter told Potter that management had
moved tables and chairs into turbine building because they did
not want the workers using the dry shacks for breaks any more.
But supposedly, no direct order had been given for the
electricians to break in place as some of the other craftsmen
were doing.
At a May 19 meeting attended by the superintendents,
engineers, and foremen, Lead Electrical Superintendent Holmes
told the foremen that Kiewit wanted the workers to take their
breaks in the turbine building rather than the dry shacks.
Foreman Holloway told Holmes that he had no intention of
taking breaks in the turbine building work areas because it

7 Watts said the length of break periods was less of a problem among
other crafts because the ironworkers had a dry shack in the turbine
building and some, but not all, of the other tradesmen would “stop and
drop,” meaning they would take their breaks in their work areas.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 716
would have been unsafe and unsanitary. As Holloway saw it,
the safety rules prohibited the workers from taking off their
personal protective equipment at breaktime because other
trades worked overhead.8 In addition, Holloway said that fly
ash present on the site from the plant operations blew around
constantly. The other foremen agreed with Holloway’s
assessment of the situation. Although Holmes appeared “a
little angry,” he dropped the subject. After the meeting,
Holloway told his crewmembers that Kiewit did not want the
employees going to the dry shacks at breaktime and that
management planned to write up (reprimand) employees if they
did.
Superintendents Holmes and Watts closely monitored the
morning break period on May 19. They observed that the
electricians were away from work for about 20 to 25 minutes at
the breaktime. Before taking any action, Watts again spoke to
General Foreman Allen. Allen told Watts that the workers did
not want to break in place because of the amount of fly ash
around the area. Although Watts acknowledged that fly ash
was present throughout the jobsite, neither he nor any other
manager perceived that it posed such a hazard as to preclude
breaking in place at the turbine building.
Later that day, Potter spoke to Electrical General
Superintendent Gibson about the break issue. Gibson told
Potter that Kiewit had put tables and chairs at various locations
in the turbine building and that the employees should take their
breaks at or near their workstations. Although Potter agreed
with Gibson’s assertion that the employer could fix the time
and location of the break periods, he told Gibson that the
turbine building was not a clean enough or safe enough location
for the employees to take their breaks. At the conclusion of
their discussion, Potter told Gibson that the employees would
not take their breaks in the turbine building. Following their
conversation, Potter claims that he consulted the stewards for
some of the other trades and learned that he planned to continue
taking breaks in the dry shacks.
After speaking with Gibson, Potter also talked with Lead
Electrical Superintendent Holmes about the break issue.
Holmes explained to Potter that the amount of time required to
get to and from the dry shacks had become an issue for Kiewit.
Potter told Holmes that the issue was coming to a head and that
if Kiewit could come up with something clean and safe inside
the turbine building, it would not be a problem for the
employees. Potter suggested that Kiewit enclose some of the
rolling scaffolding or build some other type of break room
inside the turbine building but Holmes rejected those ideas.
According to Potter, the electricians wanted a safe, clean
location to use for their break periods. As he saw it, the transit
time to that location should not be considered as a part of the
break period because “we wanted to sit our butts in a chair and
have 15 minutes to drink coffee and eat a roll.”

8 Contrary to Holloway, Watts claimed the safety rules permitted
employees to remove their protective equipment at breaktime if an
overhead deck or roof existed to shield against falling objects. At this
time, 90 percent of the decking had been installed in the turbine build-
ing.
C. The Rest Break Warnings and the Discharges
Shortly after starting time on May 20, Electrical
Superintendent Volentine told members of Sowerby and
Schilling crews that they could no longer take their breaks in
the dry shacks. Union Steward Potter, who was present
because he worked on the Shilling crew, argued that the
workers should not have to take their breaks in the turbine
building because conditions there were neither safe nor clean.
Volentine told Potter simply that Kiewit planned to issue
reprimands if employees went to the dry shacks for their
breaks.
The other electrical crews already knew about the break-in-
place order when Potter spoke to them following Volentine’s
warning. Potter informed those workers that the IBEW Local
124 business agent told him that the Kiewit had to provide a
clean and safe place for a break and that the Employer could
not treat the electricians different than the other trades on the
job. After discussing the question for a short while, at least
Holloway’s crewmembers decided to ignore the break-in-place
demand and continue using the dry shacks at breaktime.
Foreman Holloway and Union Steward Potter both supported
the position taken by the crewmembers.
At the morning breaktime on May 20, Potter positioned
himself in the turbine building where he could observe what
occurred. About 5 minutes before break, he saw the elec-
tricians as well as the ironworkers, pipefitters, boiler-makers,
carpenters, and laborers in the vicinity leave for the break
shacks. At the end of the scheduled breaktime, the workers
began coming out of the break shacks and walking back to their
workstations.9
Watts also monitored the morning break period on May 20
and concluded there had been no improvement. When he
reported his observations to Holmes, the two managers decided
that, as many opportunities had been provided to correct the
problem, “enough was enough,” and that verbal warning
notices (also called “tickets” by management) should be issued
to the electricians, including the foremen. Watts told Volentine
about Holmes’s decision and a clerical employee prepared the
verbal warning notices.
Watts set out to distribute the warning notices around 11
a.m. As was the custom, Union Steward Potter accompanied
him. They started with Walker’s crew on the upper level of the
turbine building. After Walker gathered the crew, Watts began
distributing the warning notices. Potter told the crewmembers
that neither he nor the Union’s office agreed with the action
management was taking. Some of the workers told Watts that
they did not agree with the reprimands and argued that Kiewit
was not being fair.
After finishing with Walker’s crew, Watts and Potter moved
on to a lower level where Foreman Holloway’s crew worked.
Those present when Watts began to distribute the reprimand
notices were Potter, Holloway, Judd, Bond, and Dwayne
Teeters, an apprentice electrician. As Watts began distributing

9 In his testimony, Potter said the employees began returning at 9:30
a.m. Tr. 35,L. 13. I find Potter merely misspoke and that he intended
to say 9:45 a.m., the time when the morning break period normally
ended.
KIEWIT POWER CONSTRUCTORS CO. 717
the notices, Potter again expressed his and the Union’s
disagreement with the warning notices. Then, according to
Watts, the following occurred:

Q. What happened then?
A. Then that’s when one of them—don’t quote me on
which one but one of them said, are we going to get writ-
ten up if the same thing happens in the afternoon? And I
said yes.
Q. Okay and what happened then?
A. Then Bond pipe(d) up and said well, I’ve been out
of work for a year. If I get laid off it’s going to get ugly
and you better bring your boxing gloves.
Q. What was his tone of voice when he said that?
A. Angry, obviously.
Q. Did anyone else say anything?
A. Yeah. Bond. Yeah. Bond. As soon as Judd said
it Bond piped up and said, yeah, I’ve been out of work for
eight months, it’s going to get ugly.
Q. Okay.
A. So.
Q. So, Brian Judd is the one who made the initial
statement?
A. Yeah.
Q. What did you take that to mean?
A. I took it as a threat towards me and also Roger
Holmes, my boss, and Kenny Gibson, his boss.
Q. Did you think that meant that he was going to
physically—that he was physically threatening you?
A. Yeah.
Q. Did you think that meant both of the individuals
were physically threatening you?
A. Yeah.
Q. Did you say anything to them in response?
A. No. I just kind of said okay and got away from the
situation.
Q. Why didn’t you say anything? Why didn’t you re-
spond to them or tell them that, that wasn’t appropriate
language?
A. I guess if I responded to them it might have esca-
lated further and we’re kind of taught to—if something
does happen to just get away.
Q. Okay.
A. So, I mean I was outnumbered five to one by
grown men, so—
Q. You didn’t want to escalate the situation.
A. No. I would have been in trouble if it got—if it did
go further. [Tr. 282, L. 9–Tr. 283, L. 24.]

By Potter’s account, Bond spoke up first by asking Watts
where he took his break. After Watts answered, Bond
purportedly told Watts, “[W]ell, I’ve been out of work for
about eight months and . . . if I get fired over this, there’s going
to be consequences.” Potter said Judd then added, “[Y]eah,
there will be repercussions from it.” [Tr. 39, L. 23–Tr. 40,L.
1.]
Judd, who knew the electricians risked being fired for a third
offense, claimed that he merely told Watts that “there’d be
repercussions” because he thought the location of the break
area was a safety issue that the Union would not stand for. He
recalled that Bond told Watts there would be “consequences.”
Bond recalled that he told Watts the reprimand was “bullshit”
because the managers took their breaks in their offices “away
from the fly ash and all the other debris” present in the turbine
building. Both Judd and Bond denied saying anything about
boxing gloves or that things would get ugly if they lost their
jobs over the break issue.
No evidence shows that Watts or Potter spoke about the
remarks made by Judd or Bond on the way to Sowerby’s crew
on a lower level. Likewise, Potter said nothing about filing a
grievance over the rest break issue or the warnings.10 After the
two finished with Sowerby’s crew, Watts returned to
superintendents’ office facility with the intention of reporting
what had occurred to Holmes. When Watts finally located him
around 1 p.m., he told Holmes what Judd and Bond had said,
and explained that he felt their words amounted to a threat.
Holmes agreed with that assessment but the two discussed little
else about the situation as Holmes left to take care of another
matter. Watts then returned to his other work.
Later, Watts monitored the afternoon rest break and
concluded that the verbal warnings had little impact on the
length of time taken from work for the rest period. He reported
to Holmes about his observation and the two agreed that written
warnings should be issued to the electricians for again
entending their breaktime for an undue amount of time.
Meanwhile, Holmes informed Gibson about Watts’ report of
being threatened. Operations Manager Keech joined their
discussion. Kiewit’s construction manager, Ron Hutchins, said
he learned about the threat allegation (probably from Gibson)
and spoke to Watts about it. Watts confirmed that he had been
threatened (Hutchins said Watts told him about the boxing
gloves statement) and Hutchins then went to Gibson’s office
where a meeting was taking place. Hutchins said he stuck his
head in the door and told the group, “I don’t know who made
the threats, but I want them gone off the jobsite.”11 Hutchins
asserted, in effect, that he has a zero-tolerance for threats on the
jobsite and that earlier on this project a superintendent resigned
knowing that Hutchins was about to fire him for threatening an
employee. No evidence shows that Watts knew of the decision
to terminate Bond and Judd when he set out to distribute the
second warnings that afternoon.
Around 4 p.m., Gibson summoned Potter to his office and
told him about the decision to terminate Bond and Judd for
threatening Watts. Holmes was present throughout this
conference. Both Keech and Hutchins entered Gibson’s office
as the meeting progressed but neither remained to the end.
According to Potter, Gibson advised that Kiewit intended to
fire Bond and Judd because Watts reported that they had
threatened him when he gave out the verbal warning notices
earlier in the day. Gibson said that they told Watts, “[H]e’d

10 Under the Agreement’s grievance procedure, grievances at step
one are handled between the Employer’s supervisor and the local union
steward. R. Exh. 6, 4.
11 As Holmes could not recall Hutchins’s appearance during this
meeting, his testimony suggesting that the termination decision had
been made by Gibson, Keech, and himself does not strike me as incon-
sistent with Hutchins’s claim that he, in effect, decided that question.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 718
better bring his boxing gloves,” if Kiewit fired them over the
rest break issue. Potter agreed that Kiewit should not tolerate
workplace violence but added that he did not hear the men
threaten Watts.12 He asked Gibson to speak to Holloway and
Teeters because they also had been present. Gibson refused; he
told Potter, “[H]e (Watts) wouldn’t lie” and that his account
was all they needed.13 Gibson said the two men “had to go”
and suggested to Potter that he try to get them to quit.14 Potter
said that he returned to his work area at approximately 4:30
p.m.
By the time the warnings over the afternoon rest break had
been prepared, Watts could not locate Potter so he asked
General Foreman Allen to accompany him to serve as the union
representative.15 As before, Watts intended to begin by
distributing the reprimands to Walker’s crew on the upper level
of the turbine building but when he reached that level, the
workmen were preparing to quit work and leave for the day.
Seeing that, Watts decided to wait until the following day to
distribute the written warnings.
On his way back to his office, Watts met Potter who asked
him whether he felt threatened by what Bond and Judd had said
earlier in the day. Before he answered, Potter added, “[Y]ou
know they’re going to fire those guys.” Watts implied that
information caught him by surprise so he did not answer Pot-
ter’s initial question. Instead, he claims that he only told Potter,
“Mike, I don’t know what you’re talking about.” He told Potter
that he would talk to him about it in the morning after he had a
chance to “get things figured out.”
Potter remembered a conversation with Watts later day but
his recollection differs considerably. Potter said that Watts
called him on the radio around 5 p.m. presumably to accom-
pany him while he passed out the written warnings. He pro-
vided the following account of his exchange with Watts when
he arrived at the location where they were to meet. Potter im-
mediately asked Watts whether he felt threatened by what Bond
and Judd had said to him earlier in the day. Potter claimed
Watts denied that he felt threatened. Potter said he then asked
Watts directly, “[D]id you tell them . . . (at) the office, that they
had made a comment to you about you better bring your boxing
gloves if they got fired?” and that Watts “kind of chuckled and
said, no.” Potter said he then told Watts that his superiors had
told him they were going to fire Bond and Judd because they
had threatened Watts with their comment about boxing gloves.
Watts, Potter claimed, told him, “[W]ell, I’ll clear this up when
I get back to the office.”
Even though Watts’ purportedly provided an assurance to
“clear this up,” Potter informed Bond and Judd at the end of the
workday on May 20 that they were being accused of threaten-

12 Holmes asserted (rather emphatically when pressed) that Potter
did not make this claim.
13 Holmes provided a similar explanation for not speaking to others
allegedly present when the Watts gave the warning notices to
Holloway’s crew. As he put it, “Kenny (Watts) is my Superintendent
and I have to believe him.”
14 No evidence shows that Potter attempted to get the two employees
to quit.
15 It is likely that Potter was in the meeting with Gibson and Holmes
when Watts attempted to locate him. Allen did not testify.
ing Watts and that Kiewit planned to fire them over it. Potter
also reported to Pete Raya, the Union’s business agent, about
Kiewit’s intention to discharge Bond and Judd. At least Bond
spoke with Raya sometime that evening.
At 7 a.m. the following morning, Union Business Agent Pete
Raya met Hutchins, Gibson, Holmes, and Potter in Kiewit’s
jobsite offices.16 Hutchins complained to Raya about the cost
of the breaks and pointed out that the NMA did not require rest
breaks. After Hutchins insisted the electricians had to begin
breaking in place, he and Raya agreed they would walk through
the turbine building to view conditions there and agree on loca-
tions where the workers could take their rest breaks. However,
Raya agreed that regardless of the break location, the rest
breaks should not exceed 15 minutes inclusive of the time re-
quired to walk to and from the location chosen for the break.17
When the subject turned to the termination of Bond and Judd,
Hutchins told Raya that Kiewit would not tolerate workers
threatening superintendents and that Bond and Judd would be
terminated for that reason. Raya agreed that threats should be
taken seriously and should not tolerated.
When Holloway entered the jobsite office facility with Bond
and Judd, Holmes left the meeting. After retrieving the termi-
nation checks prepared for the two men, Holmes took them into
Gibson’s office and proceeding to terminate them. After show-
ing Bond and Judd their termination notices, Holmes asked
them to sign the forms. They refused. Judd requested union
representation. At that point, Raya and Potter were called into
the meeting. Gibson apparently followed.
As the meeting continued, Bond and Judd denied they
threatened anyone and requested that the company officials
speak with others who had been present. Holmes adamantly
refused their request as well as their subsequent request to
speak with Watts. During the meeting, Raya insisted that Bond
tell the group what he had told Raya the night before. When
Bond insisted that he had only told Watts that there would be
consequences, Raya remarked that it sounded like a threat to
him. This led to another confrontation between Raya and the
employees that continued outdoors for a period of time after
Holmes insisted that they confirm the accuracy of their final
paychecks and leave.
Following a meeting between the employees and Raya out-
side the office facility, Bond and Judd left the jobsite. Raya
toured the turbine building with Hutchins, Gibson, and Holmes.
During their walk through, Raya agreed that at least one loca-
tion in the turbine building would be an adequate location for
the electricians to use for their rest breaks. Hutchins agreed
that Kiewit would rescind all of the other May 20 warnings
resulting from the rest break problem. Although Holloway,
Teeters, and Potter all claimed that they continued to use the
dry shacks for their rest breaks and that they occasionally took

16 Holmes instructed Watts to stay away from the office area that
morning until after Bond and Judd left the jobsite.
17 When Raya essentially agreed with the management position
about the length of the rest breaks, Potter accused him of not sticking
up for the workers. This sparked an argument between Raya and Potter
in the midst of their meeting with management.
KIEWIT POWER CONSTRUCTORS CO. 719
more than the 15 minutes allowed, no further warnings have
been issued by Kiewit at this jobsite over this issue.
The Union grieved the terminations of Bond and Judd under
the NAM grievance procedure. However, the International
representative present on the Union’s behalf at the third-step
grievance meeting in late May withdrew the grievance. The
Union has taken no further action on behalf of the Bond and
Judd terminations. Later, Bond returned to work at the IATAN
jobsite for another contractor.
D. Analysis and Conclusions
Where an employer takes adverse action against an em-
ployee for alleged misconduct occurring in the course of the
employee’s protected activities, the employer has the burden of
showing that it held an honest belief that the employee engaged
in serious misconduct. NLRB v. Burnip & Sims, Inc., 379 U.S.
21, 23 (1964). If the employer meets that burden, then the
General Counsel must affirmatively show that the alleged mis-
conduct did not occur in order to establish that the employer
violated the Act. Pepsi-Cola Co., 330 NLRB 474 (2000), cit-
ing Rubin Bros. Footwear, Inc., 99 NLRB 610 (1952).
The General Counsel argues that Bond and Judd were en-
gaged in protected concerted activity by critizing the manage-
ment’s requirement that they break in place rather than in the
dry shacks as they had been doing and by protesting the May
20 verbal warning. To be sure, the Act protects frank, sponta-
neous responses by employees when their employer changes
work rules and warns employees for noncompliance especially
where, as here, prior discussions have exposed sharp differ-
ences of opinion about a particular working condition. See,
e.g., Alton H. Piester, LLC, 353 NLRB 369 (2008). For exam-
ple, it cannot be seriously argued that temperate protests by
Walker’s crewmembers charging that the verbal warning no-
tices were undeserved and unfair lacked protection under the
Act.
However, the Board also recognizes where conduct that be-
gins as protected activity may lose its protection under the Act
if it subsequently deteriorates to the point that it becomes op-
probrious. Hawaii Hauling Service, Ltd., 219 NLRB 765, 766
(1975). The facts in this case fall into that category. The con-
tention by the General Counsel and Respondent that a standard
Wright Line18 analysis applies in this case lacks merit. The
Board does not utilize that analytical tool when deciding cases
where the employer charges that an employee engaged in mis-
conduct in the course of activities otherwise protected by the
Act. Felix Industries, 331 NLRB 144, 146 (2000). Resort to a
Wright Line analysis is unnecessary where, as here, a causal
connection may be presumed between the discipline and the
protected activity. Aluminum Co. of America, 338 NLRB 20,
22 (2002). See also Tracer Protection Service, 328 NLRB 734
(1999).
If an employer asserts that an employee engaged in miscon-
duct during the course of otherwise protected activity, the
Board looks to the factors set forth in Atlantic Steel Co., 245
NLRB 814 (1979), to aid in determining whether the em-

18 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982)
ployee’s conduct became so opprobrious as to lose protection
under the Act. The Atlantic Steel factors are: (1) the place of
the discussion; (2) the subject matter of the discussion; (3) the
nature of the employee’s outburst; and (4) whether the outburst
was, in any way, provoked by an employer’s unfair labor prac-
tice. Id. at 816.
First, however, the factual conflict between Watts and the
electricians must be resolved before addressing the Atlantic
Steel factors. Watts claims that Judd angrily said, in essence,
that he’d been out of work for almost a year and if he got fired
over the rest break dispute Watts should bring his boxing
gloves. Bond, according to Watts, chimed in to say that he had
been out of work for 8 months and things would get “ugly” if
he was fired over the rest break dispute. By contrast, Potter and
the Holloway crewmembers claim that either Bond or Judd told
Watts there would be consequences and the other one added
that there would be repercussions. Bond and Judd claim that
when they used these words, they intended to convey the notion
that the Union would not stand for the warnings or the require-
ment that the employees take their rest break in areas that were
dirty and unsafe.
Counsel for the General Counsel argues at length that Bond
and Judd did not threaten Watts and that both men really in-
tended by these words they used (repercussions and conse-
quences) to convey the notion that they intended to seek some
form of union help, perhaps a grievance, with the rest break
warning notices. In her view, I should not credit Watts’s claims
about the “boxing gloves” and “get ugly” statements. In sup-
port, she makes these points:

 Watts’ changed his testimony repeatedly about who
actually made the “boxing gloves” statement.
 Watts and Holmes’s testimony concerning the for-
mer’s initial report about the incident is inconsis-
tent.
 All of the unit employees present when Watts issued
the verbal warning notices to Holloway’s crew cor-
roborated Bond and Judd’s account, testified con-
sistently, and denied hearing any “boxing gloves”
remark.
 Watts admitted he had not been threatened when Pot-
ter confronted him near the end of the day on May
20 after learning Kiewit planned terminate Bond
and Judd.
 Watts contrary account about his engagement at the
end of the day on May 20 is not worthy of credit.

Respondent argues that Watts’ story about who said what
when he distributed the verbal warning notices to Holloway’s
crew should be credited over the varied accounts provided Pot-
ter and the Holloway crewmembers. Counsel for Respondent
asserts that the accounts provided by Potter, Bond, and Judd are
riddled with contradictions and that the reliability of their ac-
counts was diminished by the leading questions asked of them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 720
This dispute arose in the context of a stable, harmonious, and
respectful labor relations setting. Details about the day-to-day
interactions show that management recognized and respected
the role that Potter played as the union steward. At times, in
fact, it almost appeared that the managers were solicitous to-
ward Potter as steward. Some of the key managers in this dis-
pute had lengthy careers as union electricians. Holmes, in par-
ticular, worked many years as a journeyman electrician, and
continues to pay dues to his home local back in Massachusetts.
Likewise, I find it noteworthy in the overall context that Union
Business Agent Rhea seemingly concluded at some point on or
before May 21 that a threat occurred. As a result, arguments
broke out between Rhea on the one hand and Potter, Bond, and
Judd on the other.
Both counsel parsed this record carefully for the internal
consistency in the testimony of the witnesses and for conflicts
between witnesses on the same side of the question at issue.
Thus, Watts confused what Judd purportedly said in the critical
exchange with what Bond purportedly said. At the same time,
the Holloway crewmembers could not agree on who said “con-
sequences” would flow from the warning notices and who said
they would produce “repercussions.”
This case ultimately boils down to which of the sharply con-
flicting versions of the testimony describing what occurred
when Watts distributed the first reprimands to the Holloway
crew on May 20 and what occurred later that day when Potter
spoke with Watts after the union steward learned of manage-
ment’s decision to discharge Bond and Judd for threatening
Watts. In resolving these testimonial conflicts, I have consid-
ered numerous factors, including established or admitted facts,
witness bias, consistency, corroboration, the inherent probabili-
ties, reasonable inferences available from the record as a whole,
the weight of the evidence, and witness demeanor.
My conclusions about witness veracity have been influenced
considerably by accounts of the end-of-the-day exchange on
May 20 between Watts and Potter. In my judgment, Watts’
version is far more probable and consistent with his overall
conduct. By Potter’s account, Watts, in effect, admitted that he
had not been threatened and assured Potter that he cleared up
any misunderstanding harbored by his superiors. I find it im-
possible to believe that Watts said anything of the kind. The
whole termination procedure was set in motion by Watts’ report
to Holmes and his reaffirmation of that report to Hutchins. No
evidence (apart from Potter’s claim) provides any basis to find
that Watts ever sought to put the brakes on the termination
process in any fashion, or to recant, modify or explain away the
essence of what he said to Holmes and Hutchens that led to
their decision about discharging Bond and Judd. The consis-
tency between Watts’ conduct and his description of what oc-
curred on May 20 and 21 convinces me that his account is the
most reliable and credible, and that conflicting accounts should
not be credited.
Applying Atlantic Steel based on the more reliable version of
the events provided by Watts leads me to the conclusion that
some of the remarks made by Bond and Judd about the verbal
warning notices were not protected by the Act. Thus, their
remarks were made in a work area in front of other employees.
Second, the subject matter involved the rest break issue which
management had a contractual right to control unilaterally and
which it had previously informed employees it intended to do.
Indeed, Kiewit took the added advance step of providing some
rudimentary accommodations to employees (tables and chairs
near the work areas) so that employees had full knowledge of
the Company’s expectations. Third, the nature of their remark
amounted to an outright threat (Judd: stated, “bring your boxing
gloves”; Bond: by way of agreement added that things would
get “ugly”) uttered in anger toward their immediate supervisor
with other employees present. Finally, their remarks were not
in response to an employer unfair labor practice. Quite to the
contrary, Kiewit managers carefully explained their position
about the excessive amount of time consumed by the rest
breaks to Potter in his capacity as the jobsite electricians’ stew-
ard and employees were informed of the specific disciplinary
measures that Kiewit planned to take to achieve compliance
with the rest breaktime limit. In these circumstances, I find that
all of the Atlantic Steel factors militate against a conclusion that
the angry remarks by Bond and Judd were protected. Accord-
ingly, I conclude that Kiewit has carried the burden of estab-
lishing misconduct under the Burnip & Sims doctrine and that
the General Counsel failed to carry his burden of showing no
misconduct occurred.19
CONCLUSIONS OF LAW
1. By terminating Brian Judd and William Bond on May 21,
2008, Respondent has not engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
(3) and Section 2(6) and (7) of the Act.
2. The General Counsel has failed to prove the allegations in
the complaint issued in this matter on July 31, 2008.
[Recommended Order for dismissal omitted from publica-
tion.]

19 Even if Wright Line applied here, I would conclude that Kiewit
has shown that it would have taken the same action even in the absence
of any protected activity.