Federal Bur. of Prisons and AFGE L-33, FMCS #01/00294, 116 LA (BNA) 255 (Cocalis, 2001).
U.S. DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF PRISONS,
STAFF TRAINING ACADEMY,
--- and ---
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
COUNCIL OF PRISON LOCAL 33, LOCAL 0500
Federal Mediation and Conciliation Service
Case No. 01/00294
July 23, 2001
Alexander Cocalis, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
The Union grieves a five-day suspension of a firearms instructor for misconduct on the firing line. I affirm.
The Bureau requires all employees at its penal institutions to pass a basic training course or what might be described as a boot camp as a condition of continued employment. All employees means just that, cooks, secretaries, etc. Included in the course are instruction and proficiency tests in the use of pistols, rifles and shotguns.
The Grievant is accused of three infractions:
uttering profanities about one student's husband and her purported sex change causing her undue stress while on the firing line;
jerking the arm of another female student while shooting a shotgun for qualification causing her injury to her arm; and
throwing spent brass at students and instructors alike.
No evidence was presented regarding the last charge so, as to that, the Bureau has not met its burden of persuasion.
Grievant presents a multi-fold defense:
he did not do, or does not recall, the incidents in question;
if he did, it was within the scope of his duties to create stress better to enable the students to cope with a real-life emergency;
in any event, both students passed the course;
he was cleared of the charges by an internal affairs investigation;
considering his prior exemplary record, the discipline was too severe;
the discipline was the result of a personal vendetta against him by a former Bureau official.
One of the students testified Grievant told her, while she was on the shotgun firing line, he knew her husband and was surprised he was married because he knew the husband as a fucking homosexual. He later said that if she did not do well, he would tell everyone he knew her when she was a quarterback for some college football team. The student, a secretary in her 40s, wrote that as an addendum to an unsigned evaluation sheet that was traced to her by a handwriting analysis.
I can discern no motive why a student would make such an allegation if not true. Moreover, another student overheard the homosexual allegation. Yet another student testified he witnessed the Grievant yelling in her ear. I find as fact, the remarks were made.
While one does not expect to find the manners of a tearoom on the firing range or in a penal institution, the remarks were derogatory, inflammatory, and when you consider they were made to someone with a loaded gun, stupid. The Bureau's Standards of Employee Conduct provide:
An employee may not use profane, obscene, or otherwise abusive language when communicating with inmates, fellow employees or others. Employees shall conduct themselves in a manner which will not be demeaning to inmates, fellow employees or others.
The Grievant was in clear violation of the above standard and, therefore, unprofessional.
The second student to complain was a 5'4" woman weighing 115 pounds. She complained Grievant jerked her arm while firing a shotgun causing severe bruising and swelling of her upper arm. It also caused the shotgun to be pulled away from the target and toward the firing line. That incident was witnessed by at least one instructor. Other instructors testified as to the injury. All testified it was not only unprofessional but also unsafe. Again, I find the incident did take place as alleged.
As a former Marine, I can understand the value of stress training. The old order has changed, however, and given way to a new kinder and gentler one. To the distress of many of us from "The Old Corps," so too have evolved our vaunted drill instructors. In any event, we are not talking here of Marine recruits but women who may not ever have handled a firearm. While firing under stress may indeed be a valuable lesson, it should be confined to more advanced training. That fact is recognized in the Bureau's job description that provides, among other things: The use of firearms requires strict adherence to safety procedures. The fact that some employees have never held a gun before compounds the dangers involved.
Pulling the student's arm while she was shooting a shotgun so that the gun was pulled off the target and toward the line is a serious violation of safety standards. It also caused an unnecessary injury. In and of itself, it goes beyond any rational explanation for inducing stress.
The fact that both students passed the course is simply immaterial to the charges.
While the results of the internal affairs investigation are persuasive, they are not binding. The investigation consisted of interviews and affidavits. There was no confrontation of witnesses and no opportunity for cross-examination. The affidavits were available for impeachment purposes.
The Grievant's record is indeed exemplary. I cannot say, however, the discipline was excessive or disparate. A review of the disciplinary log shows similar discipline for similar offenses in the past. Indeed, in view of the safety aspects of the second incident, the five-day suspension was lenient and more than likely the result of his record.
As there is not excessive discipline or disparate treatment, I find no vendetta.
The grievance is denied.