Kiewit Power Constructors Co. v. National Labor Relations Board

By framing the issue on appeal as a question of fact, the majority opinion invokes the deference we owe to the findings of fact of the National Labor Relations Board (NLRB or Board). See Maj. Op. at 28-29. In doing so, however, it ignores the Board’s misapplication of clear — and consistent — Circuit precedent. Because I believe the Board’s misapplication of prec*30edent makes its decision arbitrary and capricious — and because I also disagree that substantial evidence supports its determination that the two terminated employees did not threaten their supervisor — I respectfully dissent.

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As the…