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.

 

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