Category: WORKPLACE VIOLENCE

Solutions Exist to End Workplace Bullying; What is Lacking is the Will to Act

What to do about workplace bullying?

The Boston Globe published an article on the problem of workplace bullying recently that focused on a proposed state-by-state solution that has been touted since 2001 by Gary Namie of the Workplace Bullying Institute and Suffolk University Professor David R. Yamada, author of the proposed  Healthy Workplace Bill (HWB).  Originally introduced in California in 2002, the HWB  has been considered in some form by more than two dozen states. If Massachusetts eventually passes the HWP, that only leaves workers in 49 states,  five territories and the District of Columbia without protection from workplace bullying.

Is this really where all the din and struggle of the past decade has gotten us? The United States is falling even farther behind other western democracies, some of which acted decades ago to protect workers from bullying.

The Globe article also perpetuates the common misconception that all workplace bullies are sadistic bosses and mean-spirited co-workers. In fact, much of the problem can be attributed to unscrupulous employers that use bullying tactics strategically to expel older workers and workers who  demand  better working conditions or a legal right (i.e., overtime pay). The absence of anti-bullying laws and regulations in the United States leave these bottom-of-the-barrel employers free to cut corners and evade their legal responsibilities. Taxpayers are left to pick up the tab in the form of higher social welfare costs.

The Globe article, like so many others, fails to note that there are many possible approaches to the problem of workplace bullying in addition to the HWB. Continue reading “Solutions Exist to End Workplace Bullying; What is Lacking is the Will to Act”

Murderer Cites Workplace Bullying in TV Shootings

Update: As information has developed, it is apparent that Flanagan filed an earlier lawsuit  alleging race discrimination against a Florida television station in 2000. This appears to be the lawsuit that he refers to as having been settled out of court.  The Tallahassee Democrat reports that Flanagan complained that he and another black employee were referred to as “monkeys” by a producer and that a supervisor told him he was  an exception among blacks who are “lazy and do not take advantage of free money.” Flanagan’s former boss in Tallahassee is quoted as stating that Flanagan had “threatened to punch people out and he was kind of running fairly roughshod over other people in the newsroom.” 

Legislation to stop workplace bullying came from an unusual source this week – a man who filmed his fatal shooting of a TV journalist and camera operator while they were conducting a live interview in Roanoke,Virginia.

Vester Lee Flanagan, 41, was an ex-reporter at the station, WDBJ7 TV,  which employed two of his three victims, reporter Alison Parker, 24,  and Adam Ward, 27, a camera operator. Professionally known as Bryce Williams, Flanagan was fired after about a year in 2013 and escorted out of the building by police, reportedly over angry outbursts.

In a 23-page manifesto faxed to ABC, Flanagan, who was gay and African-American, claims he was bullied  and the victim of racism and homophobia during his year at the station.  The case was dismissed by a judge in July 2014.

“I don’t need to deal with workplace bullies anymore,” wrote Flanagan, “THAT is what lawmakers need to focus on.”  

Flanagan killed himself about five hours after the murders –  which he filmed using his telephone camera and  posted on Twitter. He fatally shot himself after crashing his car while fleeing police.

Obviously a deeply disturbed man, Flanagan also states the horrific attack on Parker and Ward was intended to avenge the Charleston shootings earlier this year in which a white gunman killed nine parishioners at an African-American church.

Was He Bullied?

Whether Flanagan was bullied (or a bully) raises questions about how employers should deal with  bullying, harassment and problem employees.  Did his employers offer staff diversity training or provide Flanagan with the opportunity for coaching or psychological help? Could the tragic shootings have been averted?

The BBC quotes Jeffrey Marks, WDBJ7’s general manager, as describing  Flanagan as unhappy, difficult to work with and always “looking out for people to say things he could take offence to.”

Flanagan admits that he made mistakes while employed by WDBJ-7, adding that he “should not have been so curt” with photographers in Roanoke ” but you know why I was? The damn news director was a micromanaging tyrant!!” Continue reading “Murderer Cites Workplace Bullying in TV Shootings”

Co-Workers Suffer Second-Hand Workplace Abuse

second hand smokeNote: For a related story, see Bullying Causes Coworker Stress. Pat

 

 

Bosses who bully their subordinates also  damage co-workers who see or hear about the abuse, much like second-hand smoke affects those in the vicinity of a smoker.

That is the conclusion of a study published recently  in The Journal of Social Psychology, “An Investigation of Abusive Supervision, Vicarious Abuse Supervision, and Their Joint Impacts.”   The study was conducted by Paul Harvey from the University of New Hampshire,  Kenneth Harris and Raina Harris from Indiana University Southeast and Melissa Cast from New Mexico State University.”

The study defines abusive supervision as a dysfunctional type of leadership that includes a sustained display of hostile verbal and nonverbal behaviors toward subordinates. The authors say abusive supervision generally  is positively related to  job frustration and co-worker abuse and  negatively related to perceived organizational support.

“Although the effects of abusive supervision may not be physically harmful as other types of dysfunctional behavior (workplace violence or aggression), the actions are likely to leave longer lasting wounds. One reason for these long-lasting “scars” is that workplace violence and aggression are often stopped quickly, whereas abusive supervisory behaviors (such as being rude or giving the silent treatment) can continue for considerable times,” the researchers state.

Vicarious supervisory abuse occurs when an employee hears rumors of abusive behavior from coworkers, reads about such behaviors in an email, or actually witnesses the abuse of a coworker.

The report posits that workers who do not experience the abuse first hand may experience similar negative effects as the worker who is being abused. They may realize they could become targets for abuse by the same  supervisor  or they could be transferred to work under an abusive supervisor.

According to the study, employees expect to be treated with respect and consideration by their supervisors. In exchange, they work hard, have positive attitudes about their work and the workplace, and treat others with consideration. When abusive supervision occurs, employees are likely to feel less positively about their work (higher frustration and lower perceived organizational support) and react negatively toward coworkers who are a “safe target” upon which to  vent aggression.

The researchers found similar negative impacts of first-hand supervisory abuse and second-hand vicarious supervisory abuse: greater job frustration, tendency to abuse other coworkers, and a lack of perceived organizational support.

 The researchers queried a sample of 233 people who work in a wide range of occupations in the Southeast United States. Demographically, the sample was 46 percent men, 86 percent white, had an average age of 42.6 years, had worked in their job for seven years, had worked at their company for 10 years, and worked an average of 46 hours a week. Survey respondents were asked about supervisory abuse, vicarious supervisory abuse, job frustration, perceived organizational support, and coworker abuse.

“Our research suggests that vicarious abusive supervision is as likely as abusive supervision to negatively affect desired outcomes, with the worst outcomes resulting when both vicarious abusive supervision and abusive supervision are present,” the researchers said. “Top management needs further education regarding the potential impacts of vicarious abuse supervision on employees to prevent and/or mitigate the effects of such abuse.”

Crime & Sexual Harassment

_41030565_mugging_203_bbcWhy isn’t sexual harassment a crime in the United States?

 It is in France.

 France’s General Assembly enacted a new sexual harassment law on July 31, 2012 that includes criminal penalties of up to three years in prison and a fine of approximately $56,000 for serious cases.

 The new French law defines harassment as imposing on someone, in a repeated way, words or actions that have a sexual nature and either undermine the person’s dignity because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation.

 In the United States, sexual harassment is prohibited by Title VII of the 1964 Civil Rights Act. The remedy is civil, which means it is up to the victim to sue and the damages are monetary and/or  injunctive relief.  In criminal cases, a prosecutor sues on behalf of the state and may seek  fines and imprisonment.

It can be very difficult to win a sexual harassment case in the United States. The  U.S. Supreme Court has ruled that U.S. law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  This leaves a lot of room for interpretation by judges, especially with respect to whether sexually harassing conduct  is frequent enough  and severe enough to be actionable.

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that WirelessComm, a Northern California distributor for the Metro PCS cell phone service provider, had agreed to pay $97,000 to settle a sexual harassment lawsuit filed by the agency.

 According to the EEOC’s lawsuit, the store manager of WirelessComm in Watsonville, CA,    subjected then-19-year-old Deisy Mora to abuse throughout her seven months of employment at the store

He frequently commented about her physical  appearance, texted her photos of himself and the words “Te quiero” (‘I love  you’ in Spanish), and referred to women in general with slurs and epithets.

In addition, the EEOC said, the store owner  contributed  to the harassmen by inviting Ms. Mora to travel with him, asking her and others if  they were pregnant and, on one occasion, asking her to text photos of herself  and other female staff members.

The EEOC says Ms. Mora’s complaints were not addressed and she eventually quit her job  when she could no longer endure the harassment.

 What happened to the store manager and the store owner?

Under the consent decree, WirelessComm agreed to train the store owner and staff regarding anti-discrimination laws.  But there is no indication the WirelssComm store owner and store manager didn’t understand anti-discrimination laws in the first place, only that they didn’t place any importance on these laws and didn’t follow them.

The EEOC said  WirelessComm also  agreed to hire an equal employment opportunity consultant and a human resources consultant to revise its EEO policies; monitor the workplace; respond to any allegations of harassment arising during the three-year  pendency of the decree; and report harassment complaints to the EEOC.

In other words, WirelessComm will start following the law.

In  the final analysis, it seems like a small price  to pay for a campaign of a harassment waged by two adult men in positions of authority against a  vulnerable teenager.  If the store owner and store manager had mugged Ms. Dora while she was walking down a street, they’d probably spend at least some time in jail.  Here  they stole  her peace of mind and robbed her of  financial security in a time of high un employment.

 The United States recognizes two types of sexual harassment: (1) quid pro quo and (2) hostile environment.

 Quid pro quo is Latin for “this for that.” This type of harassment occurs when a  boss or supervisor asks for a sexual favor in return for a job benefit.

 Hostile environment sexual harassment occurs when the harassment is so severe or pervasive that it creates a sexually intimidating or abusive work environment. Hostile environment sexual harassment must be:

  • based on sex (sexual conduct, sexual comments, or nonsexual conduct that is based on your gender);
  • unwelcome (you must show that you do not enjoy the harasser’s attention and that you are not encouraging it); and either
  • severe (one or more serious incidents that affect your job) or pervasive (a pattern or series of smaller incidents that are so widespread that you have trouble doing your job as a result).

OSHA: A Sleeping Giant Awakes?

whip in

Many countries around the world consider workplace violence to be an important worker health and safety issue but the U.S. Occupational Safety and Health Administration has been oddly silent on this issue..

 That’s why it is significant that OSHA recently cited a  Dallas company for safety violations following a robbery that resulted in the  horrific death of a store clerk at a Whip In convenience store in Garland, Texas. 

 The OSHA citations carry proposed fines that are  underwhelming – $19,600.   However, the action sends a message to convenience store owners that they would be well advised to pay attention to the issues of workplace violence. 

 In May of 2012, the store clerk, Nancy Harris, 76, died from second- and third-degree burns after she was set on fire during the robbery. Police said Matthew Lee Johnson, 36, arrived at the Whip-In shortly after the store opened at 7 a.m. on a Sunday. Officers said he carried in a bottle of flammable liquid and used it to douse Harris and then set her on fire — after clearing out the cash register.

OSHA cited TMT Inc., owner of the Whip In chain,  for four serious safety violations.  OSHA contends that if the employer had implemented appropriate control measures and provided training to ensure awareness of potential violence, it is possible that Ms. Harris’ death could have been avoided.

OSHA could not cite any specific violations of their safety standards, so each store was cited with violating OSHA’s “general duty clause” for failing to provide a workplace free from recognized hazards likely to cause serious injury or death.

While the fine is a pittance, it is not inconceivable that the TMT will face a civil lawsuit as a result of Ms. Harris’ death and  the OSHA action could be a significant factor in  such a lawsuit.

 OSHA’s Dallas Area Office opened an investigation at the Garland store in May after the robbery and later investigated the company’s three other stores in Dallas and Mesquite. OSHA  found that workers at those locations were exposed to the same or similar workplace violence hazards.  TMTemploys more than 60 employees across the Dallas-Fort Worth area.

According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI), of the 4,547 fatal workplace injuries that occurred in the United States in 2010, 506 were workplace homicides.

  OSHA defines workplace violence as any act or threat of physical violence, harassment, intimidation or other threatening and disruptive behavior that occurs at a work site.  According to OSHA, workplace violence  includes behavior ranging from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.

 More information on workplace violence is available at OSHA’s website at www.osha.gov/SLTC/workplaceviolence.

Workplace Bullying: The Big Picture

I am pleased to be quoted in a  Businessweek  feature on the problem of workplace bullies but I also find it frustrating that  the American media consistently fails to see the big picture about this serious national problem.

Workplace bullying is not just about misguided individuals who bully co-workers and subordinates. More importantly, it is about American employers.

American employers permit bullying in the workplace because there is no law or regulation that requires them to stop it – despite the fact that it is widely recognized as a form of workplace violence. Other industrialized countries recognize workplace bullying as an important public health and safety problem. And decades of research show that workplace bullying causes targets to suffer potentially severe emotional and physical harm.

Only employers can stop workplace bullying. Employees who are targeted for bullying generally are completely helpless to do anything about it, especially if the bully is a superior.

Why don’t employers stop it?

Because in America, workplace bullying is seen as a prerogative of the employer. In fact, some unscrupulous employers use bullying strategically to accomplish a goal – such as to avoid unions, downsize without paying unemployment compensation, or to evade a potential worker’s compensation claim. In my own practice of law, I saw many cases where employees were bullied and driven out of the workplace by an employer after they complained about wage theft (which, by the way, is epidemic in the United States). 

Why don’t workers do anything about it?

The vast majority of American workers are completely priced out of the American legal system and,  besides, federal judges (who have lifetime tenure barring bad behavior) are appallingly ignorant and unsympathetic to claims of  employment discrimination and Intentional Infliction of Emotional Distress.

So one in three or four American workers are bullied by employers, either directly or because the employer tolerates or fails to stop an abusive workplace environment.  

This all  stands in sharp contrast to other industrialized countries – including the European Union – where authorities recognize workplace bullying as a major problem and have placed the burden of eliminating workplace bullying squarely on employers.

Activitists in the United States have been spinning their wheels for more than a decade in an attempt to get a state-by-state solution to the problem of workplace bullying but the only real answer lies with the federal government.  States should act – and I hope they will act – but this is not the solution.  Today, many states will do virtually anything to attract new business; it is wishful thinking that they will voluntarily pass a law protecting targets of workplace bullying  if they can gain any competitive edge by not doing so. 

Meanwhile, the U.S. Occupational Safety and Health Administration has acknowledged the problem by enacting workplace bullying protections for its own employees but it has failed to take any steps to protect the health and safety of millions of American workers across the nation.

This blog is a member of the coalition Protect-US-Workers that has launched a petition drive asking U.S. President Barack H. Obama and U.S. Secretary of Labor Hilda L. Solis to formulate a national response to the problem of workplace bullying.

Talk to your legislators. Sign the petition.

The Biggest Workplace Bully: Gun Violence

Some guy walks into a movie theater and shoots 71 people …

It sounds like a joke waiting for a punch line. But the joke is America’s lack of credible gun control and the inane theory advanced by America’s gun lobby that the U.S. Constitution guarantees any American the right to own an AR-15 assault rifle.  The reality is that gun violence in the workplace traumatizes not only the direct victims but also bystanders, police and paramedics, and the workers who witness it.

James Holmes, a 24-year-old graduate student armed with an AR-15 assault rifle, burst into a Colorado movie theater’s screening of The Dark Knight Rises, set off tear gas canisters and opened fire – killing 12 people and wounding 58 others. He also had a Remington 870 12-gauge shotgun and a 40-caliber Glock handgun.

Police arrested him near his parked car in the back of the movie theater. Another 40-caliber Glock handgun was found in the vehicle, and more than a thousand rounds of ammo. In recent days, Holmes had purchased 6,000 rounds of ammo over the internet.

Holmes, a floundering graduate student, was wearing a ballistic helmet, a gas mask, a throat protector, a tactical ballistic vest, a groin protector and ballistic leggings. Holmes had colored his hair red and told federal authorities he was the psychotic Batman villain “the Joker.”

He surrendered without incident.

There was no shortage of tears on Friday, including police officials traumatized by the massacre and movie theater employees  reeling from a workplace that had become a bloody battleground.

The dead included a six year old girl named Veronica.

See No Evil at Penn State

Coach Joe Paterno and Penn State President Graham Spanier were fired, effective immediately, on Nov. 9, 2011 by the PSU Board of Trustees. The troubling culture at Penn State was in evidence when students sympathetic to Paterno erupted into violence at the news until they were subdued by police with tear gas. Meanwhile, more victims of alleged pedophile Jerry Sandusky surfaced. PGB

SEE NO EVIL …

In light of the horrifying and unfathomable nature of the pedophile scandal at Penn State University, it is easy to forget that Penn State is a workplace.

The leader sets an important tone for a workplace in terms of signalling what behaviors will and will not be tolerated.  Which raises a question.  What did Penn State President Graham Spanier know of the incident in 2002 in which Jerry Sandusky, a retired long-time football coach at Penn State, allegedly showered and engaged in sexual conduct with a young boy at Penn State’s  football building?

According to a grand jury report, Spanier said he was told that a staff member had reported that Sandusky was “horsing around” with a young boy in the shower in a way that made the staff member “uncomfortable.”  However, Spanier says that he did not  know that Sandusky was engaging in inappropriate sexual behavior with the boy.

Wasn’t it enough that Sandusky was engaging in horseplay with a young boy in the shower area?  That a staffer was made to feel “uncomfortable” witnessing the behavior?  Did Spanier have an obligation to inquire further?

Spanier obviously felt that something improper had occurred. In response to the incident, Spanier said he approved of a plan to take Sandusky’s locker room keys away and to inform him that he could not use Penn State’s athletic facilities with young people, an order that officials later agreed was unenforceable.  Was there any protocol at Penn State for investigating and disciplining alleged misconduct on campus?  Sandusky was still a professor emeritus at Penn State, and had an office there.

Sandusky is the founder of The Second Mile, a charity dedicated to helping impoverished youth who have absent or dysfunctional families. Sandusky allegedly abused at least eight boys through his contact with the club, which hosts sporting camps and events at Penn State.

According to a grand jury investigation, in addition to Spanier, the following adults were allegedly aware of the 2002 incident:

  • A 28-year old Penn State Graduate Assistant who said he saw Sandusky nude in the shower and thought Sandusky was having sex with a boy. (He reported the incident to Paterno.)
  •  The graduate assistant’s father.
  • Penn State Coach Joseph V. Paterno (who reported the incident to his bosses).
  • Penn State Athletic Director Tim Curley.
  • Penn State Senior Vice President for Finance and Business Gary Schultz.
  • Dr. Jack Rayovich, executive director of the Second Mile Club.

None of these people, including Spanier, reported Sandusky’s conduct to the police or to child protective services.

Incredibly, this was not the first time that Penn State officials had notice that Sandusky was engaging in questionable behavior with children in a shower on the campus.

Schultz told the grand jury that he knew that Sandusky was investigated by child protective services in 1998 for allegedly showering with young boys and behaving in a sexually inappropriate manner. According to the grand jury report:  “Schultz testified that the 1998 incident was reviewed by the University Police and ‘the child protection agency’ with the blessing of then-University counsel Wendell Courtney (who)  was then and remains counsel for The Second Mile.”

Spanier, who was appointed president in 1995, denied knowing of the 1998 University Police investigation of Sandusky.

There was yet another incident at Penn State in 2000 in which a janitor allegedly saw Sandusky having sex with another boy, this one aged 11 or 12.  The janitor  told his co-workers, who expressed fear they could lose their jobs, and then he told his immediate supervisor Jim Witherite. No one called the police that time either.

State police commissioner Frank Noonan was quoted Monday as stating:  “Somebody has to question about what I would consider the moral requirements for a human being that knows of sexual things that are taking place with a child, … Whether you’re a football coach or a university president or the guy sweeping the building. I think you have a moral responsibility to call us.”

Both Schultz and Curley have been arrested for allegedly lying to the grand jury and failing to report the alleged 2002 sexual assault to authorities as required by law.

Spanier may avoid arrest but it remains to be seen whether he can avoid responsibility for the tsunami wave of bad publicity that has washed over Penn State’s campus because the highest ranking officials there saw no evil.

What about Walmart?

Note: Gillane was sentenced to 96 years in prison on 12/14/11.

A jury this week found John Gillane, 46, the Walmart employee who shot and wounded three of his supervisors last year, guilty of seven felony counts, including two counts of attempted murder with a deadly weapon.

But what about Walmart? Does this incident say anything about the employment practices of America’s largest retail chain? Or was it just a fluke involving an unstable employee?

A nine-year Wal-Mart employee, Gillane told police that Walmart was opening a new store that was causing a cut-back in employee hours and his medical insurance costs had increased. He said he believed one of the supervisors he shot, Eric Hill, gave him a bad evaluation and thought it wasn’t fair because Hill didn’t know him well.

According to the Reno Gazette Journal, Gillane told police he was tired of being mistreated and wanted to “get even and embarrass Walmart.”

Interestingly, after the October 29, 2010 shooting, the victims reportedly said Gillane was well liked, had no work issues, and they were unaware that he disliked them.  The three have recovered from their physical injuries but testified they still feel pain and emotional distress from the incident.

In a taped interview with police, Gillane said he decided the night before that he was going to confront the managers. “Was I disgruntled? —- yeah, I was disgruntled. I was going to take on Goliath,” he said.

He went to Walmart at 7:15 a.m. with two guns and purchased a box of ammo. He hid in a bathroom stall and loaded a gun and waited.

Gillane said he went to the office of manager Richard Sanders, passing several employees whom he did not shoot. He said he displayed the gun and told  Sanders to call the other managers into Sander’s office. He planned to tell them to call  the corporate level at Walmart Stores Inc.  so he could “go over all this stuff, how they’re crapping on us. I knew I was going to get fired. Then everything went wrong.”

Gillane said he panicked when Sanders bolted.

Prosecutors portrayed Gillane as a ticking time bomb who was frustrated with life and intended to kill the supervisors and go out in a “blaze of glory.”

Clearly, Gillane’s problems were much larger than the superstore. He was broke, had recently been evicted, and was upset that two wives had left him for other women, and he rarely got to see his 5-year-old daughter. Gillane had threatened to commit suicide two weeks prior to the incident.

Gillane was also convicted of three counts of battery with a deadly weapon causing substantial bodily harm, assault with a deadly weapon and carrying a concealed weapon.  After deliberating more than seven hours, jurors failed to reach a decision on whether he intended to kill the first manager he shot, Sanders, whom he reportedly hated the most.

There is a long history in the United States of disgruntled employees taking up arms and shooting supervisors and co-workers.  A series of shootings by postal employees in the 1980s led to the term, “Going postal.”

In a 2000 report, a commission empaneled to investigate violence at the post office recommended that  USPS management, unions, and management associations overhaul the dispute resolution processes, which was a significant source of frustration and tension for employees and managers, and boost pay for non-management personnel.

Wal-Mart employs about one percent of the U.S. population and earns profits of more than $15 billion a year. The New York Times has reported that starting in 2012 all future part-time Wal-Mart employees who work less than 24 hours a week on average will no longer qualify for health insurance plans, and Wal-Mart is cutting its contributions to employees’ health savings accounts by 50 percent. Premiums for Wal-Mart employees are expected to increase from 17 to 61 percent.

A few years ago, Walmart expanded coverage for employees and their families after facing criticism that many of its 1.4 million U.S. workers could not afford or did not qualify for coverage — rendering  them eligible for Medicaid.

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.