In Industrial Dielectric, 123 LA 822 (Arb 2006), a recent arbitration decision, an employer's immediate reaction to an employee's threatening actions towards the Vice President for Human Resources was closely scrutinized to determine whether the employer actually perceived the employee's actions as a threat. Specifically, at issue was whether termination of the employee who made threatening remarks was merely an after thought in an attempt to terminate a problem employee or a legitimate action based on an actual fear of a perceived threat. This became an issue because the Vice-President of Human Resources' actions at the time of the threat and through the time of the employee's termination contradicted the employer's contention that the actions were perceived as an actual threat.

On August 15, 2005, at approximately 3:00 pm the Grievant confronted her employer's Vice-President ("VP") for Human Resources in his office, as the VP was trying to finalize the weekly payroll report that was due at 5:00 pm that day. The Grievant entered the office without knocking, threw pictures of a baby in an incubator on the VP's desk and stated:

I have missed a couple of days from work, and I'm going to get a piece of paper from you about that. But I have to take care of this baby. And if something happens to that baby and I have to be at work because of a policy you made and enforced, they're going to have to pick you up off the floor!

After making the threat, the Grievant gathered her photographs and left the VP's office. The VP finished processing the payroll in order to meet his deadline. After he had completed the payroll report the VP considered what discipline would be appropriate to address the Grievant's actions, he concluded that he would recommend termination because the Grievant had made a direct threat against him. During this time the Grievant had returned to work and finished her shift at midnight as scheduled. The next afternoon, the VP informed the Grievant of his decision to terminate and issued her a written termination notice. The Grievant was then escorted from the facility by her Union representative. The Union filed a grievance challenging the validity of the Employer's disciplinary determination.

Based on the terms of a collective bargaining agreement the employer had the burden of proving that it had terminated the Grievant for "just and reasonable cause." To meet its burden the VP testified that the Grievant's statements made him fear for his safety. He further testified that he concluded that termination was appropriate based on her threat and her prior history of discipline for excessive absenteeism. The Union countered, contending that the employer did not have "just and reasonable cause" to terminate the Grievant for making a threat where the VP's actions suggested that he was never in fear of an actual assault. Specifically, the Union argued that if the VP perceived her actions as a threat he would have either terminated or suspended the Grievant as soon as she made the threat, instead of allowing her to remain in the same facility for another nine hours and then allowing her to leave the premises without being escorted by a member of management. As support the Union presented evidence that in prior instances in which employees had actually threatened supervisors or co-workers, the employer had consistently suspended the individual as soon as the threat was issued, and the individual was escorted from the facility by one or more members of management.

The arbitrator agreed with the Union and found that the VP's actions at the time of the Grievant's outburst and up through the time of her termination belied his contention that he feared for his safety and perceived the Grievant's statements as a threat. However, because the Grievant testified that she made the remarks to the VP and admitted that her remarks could be construed as threatening, the arbitrator found that the employer had satisfied its burden under the contractual "just cause" standard. Nevertheless, the employee ultimately prevailed and was reinstated because the employer failed to follow disciplinary procedures outlined in the collective bargaining agreement.

Although this case involved a collective bargaining agreement that placed the initial burden of proof of "good cause" on the employer, outside of the labor context, a successful defense against claims of discrimination, retaliation or pretext, require employers to offer evidence of "good cause" for adverse employment decisions. What this case demonstrates is that where an employer offers an employee's threatening behavior as the "cause" for an adverse employment decision, merely proving that the employee committed the alleged threatening acts may not be enough. Employers should be aware that a trier of fact may entertain evidence that the employer did not actually perceive the employee's actions as a threat at the time it occurred as evidence of pretext. Because a disgruntled employee will rarely admit they made the alleged threatening statement, much less, admit that the statement could be construed as or was intended as a threat, an employer's documentation of both the occurrence of the threat and the steps the employer took to protect the workplace may be the key between a trier of fact finding that an alleged threat is the legitimate reason for the adverse employment action, or merely an after the fact explanation.