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.

 

Crisis of Leadership

Interesting thoughts on leadership  by essayist and critic William Deresiewicz in an article entitled Solitude and Leadership: If you want others to follow, learn to be alone with your thoughts – published by The American Scholar:

  • Why is it so often that the best people are stuck in the middle and the people who are running things—the leaders—are the mediocrities? Because excellence isn’t usually what gets you up the greasy pole. What gets you up is a talent for maneuvering. Kissing up to the people above you, kicking down to the people below you. Pleasing your teachers, pleasing your superiors, picking a powerful mentor and riding his coattails until it’s time to stab him in the back. Jumping through hoops. Getting along by going along. Being whatever other people want you to be …Not taking stupid risks like trying to change how things are done or question why they’re done. Just keeping the routine going.
  • We have a crisis of leadership in this country, in every institution. Not just in government. Look at what happened to American corporations in recent decades, as all the old dinosaurs like General Motors or TWA or U.S. Steel fell apart. Look at what happened to Wall Street in just the last couple of years …
  •  … our overwhelming power and wealth, earned under earlier generations of leaders, made us complacent, and for too long we have been training leaders who only know how to keep the routine going. Who can answer questions, but don’t know how to ask them. Who can fulfill goals, but don’t know how to set them. Who think about how to get things done, but not whether they’re worth doing in the first place.
  • … What we don’t have are leaders. What we don’t have, in other words, are thinkers. People who can think for themselves. People who can formulate a new direction: for the country, for a corporation or a college, for the Army—a new way of doing things, a new way of looking at things. People, in other words, with vision.
  • …  true leadership means being able to think for yourself and act on your convictions.
  • Thinking means concentrating on one thing long enough to develop an idea about it. Not learning other people’s ideas, or memorizing a body of information, however much those may sometimes be useful. Developing your own ideas. In short, thinking for yourself. You simply cannot do that in bursts of 20 seconds at a time, constantly interrupted by Facebook messages or Twitter tweets, or fiddling with your iPod, or watching something on YouTube.

Employers that Abuse Job Applicants

We have all read about the self-defeating mistakes a job applicant can make at a job interview.

The woman who brought her toddler. The guy who took the phone call from his wife. The girl who wore a revealing T-Shirt and flip-flops.

It is less well understood that this is a two-way street. Employers make “mistakes” too.  Some employers use tactics that are abusive to potential employees, who often have no recourse to complain.

A potential employer is in a power position. The employer has what the applicant wants – a job. For that reason, most job applicants seek to please. However,  some employers seem to feel that by consenting to an interview, the applicant has forfeited his or her right to be treated with dignity, respect and fairly.

The Society for Human Resources Management exhorts its 250,000 members to abide by a Code of Ethics that includes: “Encourage my employer to make the fair and equitable treatment of all employees a primary concern.” That tenet should be broadened to apply to job applicants also.

An applicant found her dream job at a non-profit organization halfway across the country. She was offered the job and moved there with her children. However, in the month between the offer and her arrival, there was a management shakeup. When she arrived, her job description had changed and she was reporting to a new supervisor who had not participated in her job interview. Furthermore, the new supervisor was 20 years younger, far less experienced, and was hostile from the start. The applicant estimates it cost her about $8,000 to relocate for the job, and that it will cost her many thousands more to relocate again – not including lost pension benefits and the emotional distress.

In another instance, after meeting with the Human Resources person, a job applicant for a position in Long Island  literally waited six hours sitting in a chair outside the boss’ office. At one point, he heard the boss  talking on the phone, laughing, and making plans for dinner.  The interview was finally conducted at the end of the day. It lasted about ten minutes. To add insult to injury, he was stuck on the drive home in Long Island’s infamous rush hour traffic for about two hours.

One applicant, an unemployed father of two, says he was strongly encouraged to fly to Philadelphia to meet with a prospective employer, who indicated he was a finalist for the position but could not be appointed without a face-to-face meeting.  This was a job at a state agency that, he was told, had no travel budget.  Upon arrival in Philadelphia, the prospective employer administered the equivalent of a standardized test  that he said he was giving to all applicants.  The “test” could easily have been conducted over the phone. The applicant, who didn’t get the job, advises:  “Never pay for travel!” (Suggest Skype – it’s the equivalent of a  face to face interview and it’s free.)

Finally,  an attractive woman in her mid-50s recalls a job interview in Connecticut with a direct supervisor that was going well.  The supervisor said the company president planned to stop by and say hello.  At one point, a man in his 40s walked briskly into the supervisor’s office, took one look at the applicant, and, wordlessly, turned on his heels and walked out. There was a long  and awkward silence.  After a few moments, the supervisor,  a woman in her 30s, left the room. When she returned, she said the boss wouldn’t be able to meet with the applicant after-all.  The applicant suspected the man who entered the room was the company president.  She was devastated. “I guess I was too old?” she says.

When a prospective employer makes a mistake or uses abusive tactics, more often than not, the job seeker pays the price. You may not get the job. If you do, you may end up feeling used and abused. And you have little recourse.  The woman at the Connecticut interview might argue she was the victim of age discrimination but what she wanted was a job, not a costly and time consuming lawsuit (assuming she could get an attorney to take her case).

Of course, an abusive employer may lose a valuable potential employee and engender ill will that could cost the employer business in the long run.  And, what’s the point?

Suffice to say that it is amusing when a job applicant makes a snafu but it is troubling when an employer does. The employer exerts power and control over the interview and a bad employer can wreak both emotional and economic hardship on the applicant.

These are difficult times. An unprecedented number of Americans are out of work and ripe for exploitation. A job advertisement for a menial position can precipitate a line of hundreds around a block.  Job applicants need to beware and employers need to insure that their processes accord dignity and respect to all job applicants.

Dealing with High Conflict People

Bill Eddy, on his informative blog, Mediate.com, which is geared toward professional mediators, says High Conflict People (HCP) often act as a result of a life-long mistaken assessment of danger.  He gives the following sage advice for dealing with HCP:

1) Reduce their Mistaken Assessment of Danger:  Try not to be emotionally threatening.  Make an effort to reduce those fears by the way you interact with the person.

  • With a Borderline HCP, try to maintain a moderate, even-tempered manner that’s not too close and not too rejecting (avoid abandonment).
  • With a Narcissistic HCP, try to avoid insults and instead find things you can respect about the person (avoid treating them as inferior).
  • With an Antisocial HCP, be cautious about believing their many stories of being victimized by others, but avoid trying to dominate them in verbal interactions.
  • With Histrionic HCPs, try to pay brief attention to their dramatic stories, and then gently focus on a task or a topic you can be interested in, and then end the conversation by explaining you have to leave (rather than seeming to belittle them).
  • With Paranoid HCPs, don’t try to convince them of your trustworthiness – just be matter-of-fact and focus on what the rules are and why you have to follow them (avoid seeming suspicious of the person and avoid focusing on their fears).

2) Set Limits on Behavior that’s Aggressively Defensive:

Of course, bad behavior needs to be stopped. But the most effective way to do this is to show empathy and concern for the person … AND explain the rules or reasons the specific behavior needs to be stopped (try not to make it personal) AND what the consequences are if it continues. You can express regret that you have to address this behavior, but at the same time explain how you want to help the person and how other behaviors will be more effective at getting them what they want.

The key here is that you want to help the person accomplish the goal (being respected, not being ignored, etc.) that was underlying the bad behavior. You want to help them address the underlying concern. For example, if an employee sent out a nasty email to others in the department, you discuss the consequence for doing that. But also discuss what the employee was trying to accomplish and a better way to do that. It may be that the employee felt disrespected and therefore reacted with disrespect for others. You can explain that a better way would be to simply point out available ways to be treated with respect that don’t involved treating others with disrespect.

3) Avoid Giving Negative Feedback:

It is automatic for us to respond with negative feedback to bad behavior. With the ordinary co-worker, neighbor, or family member, negative feedback may be helpful or at least neutral. However, with HCPs, negative feedback is taken extremely personally and feeds their Mistaken Assessment of Danger – which triggers their bad behavior in an effort to defend themselves against the “danger” – which is more about personality-based fears than it is about anything in the present. Of course, you can’t point this out to the person or you will get even more bad behavior in their defensive response. Instead, focus on reducing emotional threats and on matter-of-factly setting limits on the behavior. Regardless of how severe the consequences may be for the “bad” behavior, communicate that you want to help the person. If you can demonstrate a desire to help through your own attitude and behavior, it often makes a huge, positive difference to an HCP.

(November 2010)