ILNews

Workplace threat injunction deemed invalid

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

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.

dau-schmidt Dau-Schmidt

“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.”

Different times

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.

martin Martin

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.”

Law’s limits

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.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

  3. The story that you have shared is quite interesting and also the information is very helpful. Thanks for sharing the article. For more info: http://www.treasurecoastbailbonds.com/

  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

ADVERTISEMENT