WORKPLACE THREATS

Threats of Violence

This is one area of labor-management relations which is often-discussed, but few rules or guidelines have emerged. Some of this is due to the fine distinction between uncivil language or even crude language and threats of violence. Moreover, there are mitigating factors which seem to drive the arbitrators' decisions, (and of course, the rule of progressive discipline) and thus, arbitrators do not cite other cases as precedent or for general principles.

Employers have a statutory and common law tort duty to provide a safe working place. Employees have a right to not be subjected to threats in the workplace and employers must exercise a reasonable duty of care to ensure that safety. This duty of care is in addition to any required by law or regulation.

All threat cases are viewed initially through a prism of common sense. No arbitrator is going to ignore what are generally accepted understandings of words and actions, in order to uphold or reverse the discipline. Consider how difficult it is to apply common sense to the words alone. Without knowing the workplace culture and the context of the words, would the following be considered a threat of violence?

Grievant to supervisor: "Don't F--- with me."
Grievant to co-worker: "They take people out back for that."
Grievant to customer: "This place would blow."
Grievant to steward: "I'm going to go postal."

What becomes apparent is that threats are not always clear, not always immediate (in the sense of time), and never said without a context (including provocation). Of course, it does not matter whether the threat was carried out, but the factual record surrounding the threat is critical to the case.

The problem of workplace violence cannot be viewed as just an employee versus employee matter. In fact, only 20% of the perpetrators of workplace violence are current employees of the workplace. According to a Northwestern National Life survey, the proportion of violence in all workplaces is committed by these types of people:

Two frequent scenarios: the grievant utters the "threat" as part of a joke or as part of his co-workers' banter. Or the grievant makes a threat, but has no intention of carrying it out. By definition, threat means intending to take action. If the workplace rule covers threats, the arbitrator is still left to determine whether the grievant intended for the threat to be taken seriously. Take the extreme case, where the grievant meekly states or in anger, states, "we'll end up in a black hole." The employer will not be able to convince the arbitrator that on those words alone, the grievant intended the result because it is beyond the realm of possibility.

Professor Carlton Snow, a nationally respected arbitrator, defines threat as a declaration of intent to do harm. Arbitrators and courts define threat broadly. It can be verbal or non-verbal (including gestures or other physical appearances). The question is whether the employee created the apprehension of violence. Did the grievant use the threat to effect a certain result? And do the facts support a conclusion that the grievant intended to arouse apprehension? In short, does the verbal or non-verbal conduct, to a reasonable person, create an atmosphere of apprehension.

Obscenity and Shop Talk

Raised often as a union defense, shop talk is not always protected. Arbitrators consider:

1. Was the shop talk phrase personalized or was it general?
2. Was the statement uttered in anger?
3. Was the statement intended to demean or challenge the authority of the supervisor?
4. Who else heard it (customers, co-workers, etc.)?

The arbitral presumption is that the ordinary obscenity is not subject to discipline because it is not intended to be violent or undermine management's authority. In fact, in a private discussion, an employee may be able to go further with a supervisor than if it were done in front of other workers.

The issue may not even be the "quality" of the foul language, but whether the language directed to fellow employees or supervisor signifies a lack of respect, according to Arbitrator Snow. Otherwise, chaos would result and productivity would go down. Hence, management has a right to discipline that which affects productivity.

Most arbitrators don't require evidence about the impact on productivity, because it is assumed. Nevertheless, the real issue is productivity, rather than an analysis of supervisory authority.

Context

Context is everything in these cases. If the workplace is stressful, arbitrators assume that workplace communication will also be stressful. Arbitrators want to know the exact words and all of the circumstances surrounding the utterance. A shop steward at a grievance meeting says threatening words to management. Does this mean that the steward can be disciplined? Management needs to be cautious about disciplining for what a steward says in defense of a grievant, fulfilling his or her duty of fair representation. The relationship is one of equality. According to the National labor Relations Board, "the relationship at a grievance meeting is not a master-servant relationship, but a relationship between company advocates on one side and union advocates on the other side, engaged as equal opposing parties."

It has limits, however. The shop steward cannot say, "I know where you live" when the intent is to threaten. If they are of such serious character as to render the shop steward unfit for further service, the utterances are a basis for discipline.

Another context, which may be considered as mitigation, but may also explain whether the language is truly threatening is the employee's condition. If the employee is inebriated, mentally ill, or suffering from post-traumatic stress, the threat may be explained away. The emotional outburst from a troubled employee is typically handled differently ( and not as severely) because the illness is primary and the threat is viewed as a symptom. This is another example of where the arbitrator will consider context as important as the words themselves.

A zero-tolerance policy does not take away the arbitrator's authority to determine whether the discipline was for just cause. The context of the words used will determine whether the language can be the basis for discipline. Further, the seniority or good work record of an employee can be the basis for reducing the discipline.

Finally, an example of the problem is when the employees, after the fight, claim they were wrestling. Neither was injured, they withhold the reason for the altercation or minimize it, and there are no management witnesses. How likely would the arbitrator uphold discharge, even under a zero-tolerance policy? The case would be decided narrowly on the facts. The equal-penalty rule (that both combatants be treated the same) has fallen into disfavor, because arbitrators consider it unfair, since nearly all fights have a provocateur and a victim. Instead, arbitrators look as closely at the context in which the fight occurred and the applicability of the work rule.

Warning

In many cases, management has the opportunity to warn an individual about their behavior. This is the requirement of progressive discipline, and a stronger case for discipline is made when the grievant has been warned. Arbitrator Barbara Doering concluded, in a 1998 lecture.

In a sense it is easier to deal with actual violence - the push, the shove, the blows, whatever- than the less specific fears flowing from something said or done. Where you have a pretty good idea of extent (from what actually occurred), a penalty can be more clearly seen as fitting the offense, or at least the arguments are more clearly drawn. On the other hand, people who are often loud, or use foul language treading the line of keeping it object-directed rather than person-directed, may never be spoken to about conduct that makes others uncomfortable to be around them until they get themselves in trouble by directing the language at a person or being loudly insubordinate to a supervisor in front of an audience, or simply flying into a rage. At that point it may come out that what to them is a matter of degree, has made others fearful - or ready to be fearful if there be an incident.
My prescription for the latter is that we need to emphasize "orderly" conduct and that managers need to deal with on-going "disorderly" conduct, because co-workers won't take the chance of ridicule or of increased name-calling if it is left to them to object. Supervisors have to disciplinary authority to put a stop to it.

Summary

Based on the foregoing, some general guidelines emerge:

Dennis Garrett
V.P. Safety Officer
Regional MOSHC Rep
CWA Local 7804
Tacoma, Wash

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