An employee’s reported threat to blow his boss’s head off resulted in an injunction barring him from the workplace, but the Indiana Court of Appeals reversed recently in a case that highlighted conflicting statutes aimed at preventing violence on the job.
A 2002 statute, the Workplace Violence Restraining Order Act, was used to secure an injunction against an employee who was accused of communicating a threat against his supervisor to someone in the company’s human resources employee assistance program.
But in reversing, the appeals panel found that a Depression-era statute enacted in response to employer-sponsored violence against striking workers prevents injunctions under the 2002 law if the threat arises from a labor dispute.
“The problem here was (the company) didn’t proceed under the right statute,” said Indiana University Maurer School of Law professor Kenneth Dau-Schmidt, a nationally recognized authority in labor law.
The 1930s-era law, the Anti-Injunction Act, I.C. 22-6-1, requires a greater level of scrutiny before a court may order someone barred from a workplace. Parties must be allowed a hearing, for instance, and a court must make findings of fact before an injunction can be issued under this Act. A bond against wrongful injunction also may be required.
Under the 2002 statute, I.C. 34-26-6, a court may issue a temporary restraining order in response to workplace violence or the credible threat of workplace violence and may follow up by issuing an injunction after a hearing, as was done in this case.
Laurie Martin, a partner and employment attorney at Hoover Hull LLP in Indianapolis, said “there are still a lot of situations that aren’t implicated at all by the opinion, where the Workplace Violence Restraining Order Act might apply.”
Gerald Lutkus, an attorney at Barnes & Thornburg LLP in South Bend, said under federal law, the National Labor Relations Board has carved out exceptions for certain types of speech that lose the protection of law. “Threats are one of those,” he said.
Neither Martin nor Lutkus were involved in this case.
Threats of violence were one of the things the Workplace Violence Restraining Order Act was designed to deal with, Lutkus contends. “That’s the dilemma the decision presents.”
Dau-Schmidt said the AIA stemmed from an era when labor unions or workers often didn’t get an opportunity to respond to an employer’s request for injunctions, or when companies persuaded courts they had no means to serve notice on crowds of picketing laborers.
The result was workers who violated injunctions – often unknowingly – could be jailed. Some companies “hired Pinkertons to beat these people up,” Dau-Schmidt said.
Statutes in Indiana and virtually all other states were patterned after the federal Norris-LaGuardia Act of 1932 that limited the ability of courts to issue injunctions against workers. Yet the AIA, also known as Indiana’s “little Norris-LaGuardia Act” expressly allows for injunctions for violence or threats of violence, Dau-Schmidt said.
“They wrote the ‘little Norris-LaGuardia Act’ very broadly to cover almost every conceivable situation” arising from workplace disputes, he said. “It’s pretty demanding language, because the system was being abused.”
The Court of Appeals on July 11 decided A.H. v. C.E.G. on behalf of G.S., 49A05-1310-PO-525, reversing the injunction issued by Marion Superior Judge Gary L. Miller. The appeals court in a footnote observed that A.H. requested, and the motions panel granted, his request to prohibit public access to filings, so initials were used to protect the privacy of parties.
Attorneys who represented parties on both sides of the dispute declined to comment about the case due to the court’s order.
C.E.G. is Citizens Energy Group. Spokeswoman Sarah Holsapple said the company does not plan to seek an appeal of the Court of Appeals ruling to the Indiana Supreme Court.
What’s a labor dispute?
The case turned on a determination of whether the injunction was issued as a result of a labor dispute, which the court noted is expressly prohibited by the Workplace Violence Restraining Order Act. “Therefore, if the instant case involves or grows out of a labor dispute as defined by the AIA, we must conclude that the trial court did not have jurisdiction to grant relief pursuant to the WVROA,” Judge Terry Crone wrote for the panel.
The appeals court held that this was a labor dispute because it met the criteria under the AIA of a dispute between an employer and employee or between two or more employees.
According to the case record, A.H. sustained an unspecified injury at work. Later the same day, his supervisor called to ask him about working the next day, a Saturday. The supervisor said he thought A.H. was loud and disrespectful, though A.H. said he would work at 6 a.m. but not 4 a.m.
As conflicts between the worker and supervisor escalated, A.H. complained he was being unfairly treated in comparison to other workers. He also sought a second opinion on his injury from a physician other than the company doctor his supervisor suggested, Crone wrote.
A.H. spoke to a therapist in the company’s employee assistance program who relayed to the supervisor that he was talking about blowing the supervisor’s head off. A.H., though, testified that he told the therapist he had a dream that he shot his boss.
Attorneys representing Citizens Energy Group argued the WVROA provides a remedy and that the AIA was meant to apply to organized labor activities – a position the appeals panel rejected.
“C.E.G. cites no cases that limit the application of the AIA in the manner it advances,” Crone wrote. “We conclude that a ‘labor dispute’ for purpose of the AIA is not confined to situations involving a union.”
Martin said employers should be thinking from a policy perspective about internal procedures to provide remedies such as suspensions when threats arise, but the WVROA still can be a useful tool, particularly when an employee is threatened by someone who isn’t a co-worker.
“It gets tricky then in this co-worker to co-worker context,” Martin said. “There is prior authority out there that the statute does apply if the dispute is found to be purely personal in nature.
“It is just a fact-intensive inquiry when it gets into the inquiry of what arises out of a labor dispute,” she said.
Martin said the panel in A.H. differed from some prior appellate panel rulings.
“One difference I think between some other panels’ opinions and this one is whether the focus of the inquiry should be on the conduct that led to the threat … or the threat itself,” she said.
But Martin said the court made clear the plain meaning of the Anti-Injunction Act and other statutes traditionally viewed as those applicable to organized labor. “They can and do apply in non-union workplaces,” she said.•