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Dear Steward: Threat Analysis

The threat cases which go to arbitration have common themes:  the employee denies making any threatening remark, there is a dispute about the context or surrounding circumstances, or the grievant claims it was a joke after-the-fact.

At the New York conference last month, the arbitrators made these teaching points:

1. In today’s society, threats have to be taken seriously.

There is a heightened awareness about threats.  Arbitrators know that actual violence can follow.  Pointing a hand (mimicking a handgun) to one’s head or a gesture (resembling a noose) around one’s neck are no longer considered horseplay.   If the grievant intended to put fear in the mind of the target, it is subject to discipline.

2. Was the remark made in the heat of a discussion or after thinking about it?  

In one case, a female grievant made the remark, “I will slap her.”  “Her” referred to a female co-worker.  The remark wasn’t made to the co-worker but to others nearby. The grievant then repeats the same statement to the same set of employees.

There are innocuous statements made by employees all of the time.  But the test is not what the grievant thought, but what the co-workers thought.   The testimony from the people who heard the threat is key to the case.

3. Did the grievant escalate or de-escalate the situation, after making the alleged threat?

This is another teaching point of the previous case.  All of the arbitrators on the panel felt that by repeating the threat, the greivant made the threat real.  There are many other cases, however, where the grievant immediately recognizes that he or she needs to de-escalate the situation.  They want to undo the threat.

4. The grievant needs to testify.  

If the union feels discharge is not for just cause, the union should consider having the grievant testify.  All of the arbitrators want to hear from the grievant;  that testimony can dramatically affect the penalty.  

Finally, in the arbitrators’ view, unions acknowledge that their bargaining unit members have the right to a safe work environment.

-L2019 Steward Council

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