Joke or Threat?  

All arbitrators recognize the heightened awareness of workplace safety. Employees ought to expect a workplace free of threats from co-workers. The challenge is when the threat is ambiguous, or in this case, meant as a joke.

The arbitrators on the panel in Chicago split 3-2. The ensuing discussion illustrates the challenges in such cases.

Outline of the CaseThe grievant was a new teacher in the school. It was a teacher-workshop day at the beginning of the school year, and his fellow teachers were sitting at a lunchroom table.  

He was walking by and said to the group, from about 20 feet away:  "Great place to throw a grenade but it would damage the table."

One of the teachers did not know him and reported him to the principal. There is a clear rule against uttering any threat of injury to persons.  HR gave him a 10-day suspension. The parties made several arguments at the hearing and there were other facts to consider, which are addressed in the majority and minority decisions.

Majority Decision

Three arbitrators would overturn the 10-days. They would issue minor discipline. We start with the arbitrator who would only uphold a warning.

1. I would uphold a warning or reprimand, but have we all lost our sense of humor? What is going on here? He makes the statement and to the one teacher who didn’t know him and reported him, he apologized immediately. There were no students present. He regarded the group as colleagues — fellow teachers. No one else at the table took him seriously. I would not be surprised if some of my law school colleagues make statements like this, or worse, with different emphasis. Notice that it’s not a threat in that he is going to do it. He is making what I think is a tasteless joke.
2. He is subject to minor discipline because teachers (even new ones) know not to make such comments. Everyone walking into a school knows this.  But 10 days is excessive. There are only adults present. And I cannot imagine anyone taking him seriously in this junior high school.  
3. Because it’s a school, you err on the side of safety. But it’s hard to take this comment seriously. The grievant owned up to making the statement and apologized.

Minority Decision

Arb. #4First of all, you wouldn’t make this statement in a TSA line at the airport. Second, we know Columbine and Sandy Hook, and we know that you don’t make such statements. Third, this statement is like the other prohibited statements; you don’t negatively comment on race, gender or school safety. You just don’t do it. Ten days is reasonable and sends him a message to not make such remarks in a school.

1. My only hesitation on the 10 days is how the employer has treated other offenses. I want to know how this offense fits within the penalties that were issued.  In the railroad industry, the minimum suspension ever given was 5 days. That was the environment there. I want the employer here to tell me so I can measure the 10 days against that.  But on these facts, the 10 days is for just cause.