Tuesday, August 9, 2011

NLRA Right to "Fight" - Court Cites YouTube

The National Labor Relations Act (NLRA) generally protects employees' right to fight for better working conditions. Well... not fight, but ya know, "fight." What's the difference? The D.C. Circuit Court of Appeals covered the distinction in a recent case, Kiewit Power Constructors Co. v. NLRB (.pdf).

The employer warned two of its electricians that their breaks were too long, and that they may need to take them in a different location. The electricians responded by saying things would "get ugly" if they were disciplined and the supervisor "better bring [his] boxing gloves." And then they were fired for threatening workplace violence.

But wait, the NLRB reinstated them, finding that the statements "were merely figures of speech made in the course of a protected labor dispute." The D.C. Circuit agreed, noting:
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.
The Court then went on to hold:
To be sure, [the employees'] statements were intemperate, but they did not involve the kind of insubordination that requires withdrawing the Act’s protection. It would defeat section 7 if workers could be lawfully discharged every time they threatened to "fight" for better working conditions.
One interesting aspect of the opinion, was how the Court chose to highlight the distinction between fighting metaphors and actual fighting... YouTube. The Court used two YouTube videos to highlight the different meanings of "the gloves are coming off" or "dropping the gloves." First, this video with the Caps' Ovechkin dropping the gloves:

If video is not displaying properly, click here to watch on YouTube.
And then there's this video of Sarah Palin, "the gloves are coming off" (they disabled embedding for this one so you have to go to YouTube). They even cite another video with Jimmer highlights, "destroying" the opponent. But seriously, we're all still sick of Jimmer highlights, right?

Maybe one day, instead of briefs, we'll all be submitting multimedia websites with videos and Facebook "Like" buttons. For now, we'll have to settle for a few YouTube citations in the Court's opinion.

HT: Blog of Legal Times (BLT): Appeals Court: 'It's Going To Get Ugly' Was Not A Threat.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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