Indirect Speech and Smithfield Foods Animation, 349 NLRB 1225 (2006)

Sometimes we say one thing, but we mean to convey another message.  For example, a dinner companion asks his fellow dinner companion, "Could you pass the salt?"  It's an absurd question.  Clearly he can pass the salt. What he really means is, "Pass the salt." In one Seinfeld episode, when George is dropping off his date, she asks if he wants to come up for a cup of coffee.  George turns down the offer because he does not like to drink coffee so late...later he bemoans the fact that he turned down the coffee, realizing,  "Coffee doesn't mean coffee." This phenomenon is called "indirect speech". It has been well studied by "linguists, philosophers and psycholinguists", and although not referred to by name, it has been the turning point of many a labor and employment law case.

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.

Violence Declining in General, How about in the Workplace?

Evolutionary psychologist Steven Pinker has an uplifting message in his new book  Better Angels of our Nature: On the Decline of Violence.  The good news Pinker brings us is that violence is down, way down, and trending down further yet.  I haven't had a chance to read the 800 page book, but I did read the summary of his arguments here and an interview he gave about the book. The summary has some good graphs and the interview was interesting.  Pinker gives various explanations for the decline, including this one:

It's partly because we care more. More and more categories of behaviors that weren't even considered examples of violence in the past are considered heinous now.
My favorite example is the recent campaign to stamp out bullying. No one less than the President of the United States gave a speech against the horrors of bullying. Twenty years ago, this would have been considered a joke. Bullying was a part of growing up. Boys will be boys. It's necessary to toughen them up; you don't want a whole generation of sissies, etc.
Now we see life from the point of view of a bullied child. We've now moved bullying from the category of ordinary childhood experience into a category of violence, and targeted it for elimination.

Here is a graph I generated with Google Insight Trends, showing the search results for "bullying" since Google's inception in 2004:

The trend of concern about bullying is not just regarding school yard bullying. Workplace bullying has been a rising topic of concern as well. Here is a graph of Google searches for "workplace bullying" in the US compared with searches for "workplace violence":

At the same time that searches for "workplace bullying" have been increasing, searches for "workplace violence" have been decreasing. This would tend to play into Pinker's general theory: severe workplace violence is in decline and now people are turning their attention to more nuanced forms of it.

That of course rests on the assumption that workplace violence is down historically. Is it?

There are of course recent examples of high profile workplace violence and certainly violence persists in many workplaces. The DOL states that 2 million workers are the victims of workplace violence each year.  They have been using that same figure since 2002, and so it's hard to read a trend into it.  The DOL's figures are largely made up of employees being attacked by nonemployees (robbers, customers, etc.).  Certain types of workplace violence are down for sure, such as clashes between unions and Pinkerton guards.  How about fights/attacks between coworkers? A lot more people with violent temperaments find themselves in jail and out of the workplace today than they did historically, so you figure that would lower the number of intra-employee fights.  The growth in background checks is likely keeping the violent out of workplaces and the mere fact that background checks are conducted likely acts as somewhat of a deterrent.

This graph from a  Boston Globe article shows that employees in 2008 were being killed less frequently by nonemployees than they had been in 1997, but just as frequently by other employees:




I imagine that the workers' comp attorneys would have as good of a pulse on this as anyone would. If anyone has some statistics or anecdotal thoughts on the subject, please drop a comment or send me an email.