A few years ago, Steven Pinker examined indirect speech in an intriguing article. Pinker's theory about inquiring into somebody's ability to pass the salt is interesting, but that is a subset of indirect speech that is not central to many cases. In the "pass the salt subset" it's clear what the speaker meant which leaves little room for argument. The subset of indirect speech that arises in the labor and employment law context is the "coffee doesn't mean coffee" type. This is speech that has an intended message, but is worded differently so as to give the speaker what Pinker calls "plausible deniability." This type of speech leaves practitioners parsing out whether the surface meaning of words were meant or if the words delivered a subtextual meaning.
Pinker uses a game theory example of a driver who is pulled over for speeding and wants to try to bribe the policeman. The driver doesn't know if the policeman is honest or not. If he uses direct speech, he has two options: offering the bribe or not offering the bribe. If he offers the bribe, he could wind up in jail or he could avoid the ticket. If he doesn't offer the bribe, he will certainly pay the ticket. Indirect speech gives him a third avenue where he wraps the bribe's message in plausibly deniable language.
In this scenario, the policeman can be almost certain that the driver is attempting to bribe him. But, because of the high standard of proof in criminal cases, if the driver could raise a reasonable doubt as to what he meant then he won't be convicted. Most labor and employment law situations involve a much lower burden of proof. Thus, no matter what his words may mean on the surface, the speaker will generally have to show that--more likely than not--his intended message was lawful in order to be off the hook. Plausible deniability may be enough to satisfy the burden of proof in criminal matters, but in civil matters more is needed.
In Smithfield Foods, 349 NLRB 1225 (2006), the following exchange between a labor relations consultant and an employee occurred:
[Consultant] came to [Employee] at the copy machine in mid-June15 and asked, “So, what do you think about the Union?” [Employee] said they could be better with a union and could get more respect. [Consultant] replied, “Well, I get the feeling that you don’t like the job, and if you don’t like the job why don’t you just quit.”
Was the question a threat? The Administrative Law Judge, whose opinion on the issue was adopted by the NLRB, found a violation and reasoned as follows:
The comment to [Employee] may appear weak but it does connect his feelings for the Union with Respondent’s concern that those feelings show a discontent with his job that should result in his seeking other employment. That comment tends to coerce the employee into concern for his job.