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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT