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Steward's Sourcebook

Defending grievances involving violence or threats

MANY OLDER WORKERS in predominantly male occupations remember a time when fighting on the job was relatively common and discipline was often light. Today, companies are far less tolerant, and many have adopted zero-tolerance policies for fighting or violence of any kind — including threats.

Stewards defending grievants against discipline for fighting or acts of violence have an uphill battle. With two million cases of workplace violence in the United States each year, resulting in 800 homicides, employers and even your own members are likely to demand a workplace free of any hint of violence. We’ve all read those terrible headlines, and we don’t want to be in one of them ourselves.

Protecting your members means ensuring they are not disciplined unfairly, but it might also mean finding a way to protect them from someone with anger issues.

Zero-tolerance policies

MANY COMPANIES HAVE zero-tolerance policies for fighting and other acts of violence. How you defend a grievant faced with dismissal under any zero-tolerance policy is affected by whether the policy was imposed by the company or negotiated through collective bargaining.

Arbitrators generally hold companies to a higher standard on policies that have been unilaterally imposed. Look for evidence that the company has treated this grievant differently from grievants in similar cases in the past. The definition of a fight might vary from one supervisor to the next.

Also consider the thoroughness of their investigation. The understandable desire to remove a potentially violent person from the workplace may influence management to act hastily. Hold them to a high standard. Dismissal is a serious matter. They need unequivocal evidence of both the action, and the seriousness of the action.

Often a grievant will argue that he wasn’t being violent, he was only engaging in horseplay. The test you need to apply is not the grievant’s intentions, but how the act was perceived and whether it actually caused harm or had the potential to cause harm. Tossing a plastic bottle at a co-worker to get him wet is probably not going to cause harm, but a glass bottle might.

When playing around, people often underestimate how dangerous their actions are or how they might be perceived by the person on the other end.

Threats are a special case

PERCEPTION ALSO PLAYS a big role in how threats are treated. A true threat is a violent act and will be disciplined accordingly. But what constitutes a true threat?

Physical threats are usually pretty clear. If you angrily shake your fist in a person’s face, you must expect that person to feel threatened. If that fist is holding a wrench, even more so. Whether you intend to follow through on the threat is immaterial. Your actions are intimidating.

A gesture may not be disciplined as harshly as a physical assault, but clearly this is behavior the company should be able to discourage. Threats often lead to violence, and even when they don’t, they create a poor working environment.

Context is important, of course, as is body language. But, as with the horseplay defense, the burden will fall on the grievant if the people around you perceived your actions as a threat.

Verbal threats are much more difficult to categorize. Consider these three statements, all made by one worker to a co-worker:

  1. If I had a gun, you’d sing a different tune.
  2. I ought to kick your ass.
  3. If you were any dumber, I would hunt you for sport.

Are these serious threats?

Ruling out cases where friends are talking trash to each other in a verbal form of horseplay, any of them could rightly be considered a threat, although different listeners may disagree on their severity.

In number one, the word “gun” makes this a serious threat. Most (perhaps all) arbitrators are going to rule that the company has a right to discipline of some kind. Even if carrying the threat out is a remote possibility, it implies a level of violence that can’t be tolerated. It doesn’t matter whether the speaker actually owns a gun or has access to one, or even whether the listener knows it is an empty threat. Ignoring this kind of threat could lead to one of those headlines mentioned earlier — an outcome no manager should have to risk.

Number two is a bit more complex. Whether you consider this a serious threat depends on what you think the speaker may have left out of the sentence. He might have been thinking “but I don’t want to get fired.” In that case, it might not be a real threat. He is saying he won’t attack you, even though he thinks he may be justified in doing so.

But you might also be thinking he could have ended the sentence “but I’ll have to wait until after work.” Then you could easily be justified in saying it is a serious threat. You will need to look at evidence of previous hostile statements, the relationship of the workers in question, and the context in which this was said. Even then, don’t expect the argument to go easy.

Number three is perhaps the most difficult. For many, it is simply a harmless, though cruel, insult. But fear of workplace violence will cause many people to perceive any reference to a gun or other weapon as a serious threat, warranting discipline, and the word “hunt” implies the use of a weapon. You may disagree with them, but you probably won’t change their minds. In that case, you’re probably wise to look for a way to compromise on the discipline.

Reporter  V49N1
Published on the Web: April 19, 2010

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