American Federation of Government Employees
118 LA (BNA) 963
FMCS Case No. 00/13835
July 3, 2003
Stephen M. Crow, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
Was the five-day suspension of D__ for just cause? If not, what shall be the remedy?
The grievant, D__, is a Sheet Metal Worker (Aircraft). The Agency suspended D__ for five days for inappropriate comments about fellow employees and for threatening comments to her supervisor P__. P__ retired in early 2003 and was not available for the hearing. In her absence, the Agency provided written documentation and testimony of others to support P__’s decision to recommend disciplinary action against D__.
Article 5—Discipline and Counseling
5.01b—Definition and Coverage: ...when an employee is subject to discipline, the Employer will strive to effect disciplinary action within either 45 days of the offense, the Employer’s awareness of the offense, or the completion of an investigation of the matter by other than the supervisor, whichever occurs later.
5.06e—Written Reprimands, Suspensions, and Removals: This Section does not apply to emergency situations where the retention of the employee on active duty status may be injurious to the employee, his/her fellow worker’s ...
Article 6—Negotiated Grievance Procedure and Alternative Dispute Resolution
6.08—Negotiated Grievance Procedure for Employee Grievances:
b. Step 1. A bargaining unit employee desiring to file a grievance must first file with the first level supervisor within 20 calendar days of the date the management action giving rise to the grievance or reasonable awareness of such occurrence.
6.08c(1)—The Step 2 grievance packet must include the 913 and any management responses prior to submission to Step 2 of the NGP. New issues, i.e., issues not raised as part of the Step 1 process, shall not be raised.
AFI 36-704—Discipline and Adverse Actions
Guide to Disciplinary Actions, Cause of Action:
12—Making false, malicious, or unfounded statements against other employees;
14—Rude use of abusive or offensive language; and
D__ transferred to the Oklahoma center from one that was closing. Her transfer records included one adverse disciplinary action, a three-day suspension. From time-to-time, employees advised supervisor P__ about D__’s use of abusive and inappropriate language and comments to, or about, fellow workers. P__ witnessed an occasion of D__’s offensive verbal behavior and issued her an oral admonishment. During the next five months, D__ was accused of unacceptable behavior on two more occasions. P__ investigated the accusations and prepared two supplemental sheets and presented them to the D__ and advised her that if the issues were not resolved, disciplinary action would be considered. D__ displayed such an intense reaction to the mention of the supplemental sheets that P__ became concerned for workers’ and workplace safety. D__ made explicit threats regarding self-destruction as well as causing harm within the workplace. Because of the nature of the threats, D__ was placed on leave until such time that her psychiatrist and the agency’s medical staff examined her to see if she was fit to return to work. The medical practitioners all agreed that D__ had no mitigating medical problems related to her unacceptable behavior. Upon her return, the Agency suspended D__ for five days for use of inappropriate comments in the workplace. The Agency offered the following arguments in support of the decision to suspend D__.
Inappropriate Behavior Cannot Be Tolerated in the Workplace.
P__ issued an oral admonishment to D__ for inappropriate comments made to a fellow employee in a group meeting. D__ had loudly scolded the employee, “You did not notify me to stop work, fuck face.” Co-worker Enoch Hasbell testified that, to most people, D__ probably was a little rough talking and could be considered offensive. The words she used were not what most people would use around others. Work Leader Craig Crenshaw testified that D__ could be a little outspoken, abusive, and harsh on occasion. When employees complained to Crenshaw about D__, he referred them to P__.
D__’s testimony was not credible. Responding to one of the supplemental sheet charges, she testified that she did not call co-worker C__ a slut. However, in later testimony D__ stated that she told co-workers that, “...there’s only one [a slut] I know of, and she works downstairs, and it’s not C__.” When employees gave C__’s name as a possible slut, D__’s response was that, “If the shoe fits, wear it. I’ve been nothing but nice to her, I mean, person-to-person wise.”
D__ was not credible when she testified that she was an hour late for a doctor’s appointment because P__ kept her over. However, she subsequently testified that she did not make her appointment for the doctor for the same reason.
C__ told Supervisor Brian Burchard that she was fearful of physical action by D__ that she felt physically threatened. Other employees complained to P__ regarding verbal assaults by D__. P__ personally investigated each accusation to assess the validity of the charge(s) and was able to authenticate each event. These events were further confirmed by D__ during her testimony.
When P__ confronted D__ about her abusive behavior, D__ told P__ something to the effect that because of the complaints against her, that she, D__, did not know whether she should blow her brains out or whether to go to a national armory, get a gun, and shake up the workplace. Since D__’s threat was so troubling, P__ reported it to upper management.
Management Has the Responsibility to Determine Internal Security Practices
The Master Labor Agreement (MLA) and Agency regulations clearly state management’s right to determine internal security practices and to take responsibility for keeping the work environment free from discrimination because of race, color, religion, sex, national origin, age, or physical or mental handicap.
Supervisor P__’s notice of proposed suspension emphasized to D__ that:
Your comments toward your co-workers are considered rude and discourteous and ... are inappropriate in the workplace.
... one of my most important responsibilities is to ensure the safety of my employees in the workplace. . . .
... your comments concerning your consideration of violent action in the workplace are also considered inappropriate. . . .
Supervisor Burchard also had a responsibility to safeguard the health and welfare of employees, and he took D__’s verbal threats seriously.
Since there was no mitigating medical evidence to account for D__’s behavior, the decision to suspend was appropriate.
The Discipline Meted Was for Just Cause and Within the Spirit of Published Guidelines
With guidance from the Employee Relations Department, Supervisor Burchard analyzed D__’s situation to consider taking disciplinary action. Burchard evaluated the case record, which included a written response from the steward, and chose to suspend D__. With a three-day suspension already on the record, a five-day suspension for a second offense was the most appropriate disciplinary choice for the Agency.
In her testimony, D__ admitted to the incidences leading to her discipline. The penalty for her behavior was appropriate. D__’s record contained previous disciplinary actions—a three-day suspension and an oral admonishment for similar inappropriate behavior. Management implemented disciplinary action to correct D__’s unacceptable behavior. The five-day suspension of D__ was for just cause.
Union’s Position 2
The Agency did not meet its obligation to prove its case against D__ by a preponderance of the evidence. The Agency relied upon a statement by Supervisor P__. Since Supervisor P__ was not present at the hearing, she could not be cross-examined. A basic rule of arbitration is that if evidence and/or testimony are not refuted, it becomes fact. D__ refuted the statement by P__, it is not true in our opinion, nor is it best evidence. D__ did admit to saying that “she should get a gun and blow her head off,” which illustrated her frustration and her condition. However, she threatened no one else.
The Agency’s key witnesses could not attend the hearing. P__ has retired and C__ was ill. No statements exist from C__ whatsoever, yet there was abundant testimony by the agency concerning her “fears” where D__ is concerned. Absent any credible testimony, or at very least a statement by C__, the Union considers the evidence to be hearsay and would ask the arbitrator to dismiss it as such.
Burchard’s testimony was not credible. His role was to support the suspension of D__ at all costs. Burchard testified that he didn’t look at the records before he came to the hearing. However, later in the hearing, he testified that, “Well, I’ve went over this package but the thing was three years ago so I briefly went over this again before I came in here [to the hearing].”
Additionally, Burchard testified that in making his decision about the suspension, he gave a lot of weight to P__’s statements. When asked how he could make a final decision without talking to D__, Burchard answered that he has made other final decisions without talking to grievants. Burchard had an obligation to talk with D__ before rendering his decision. On several occasions, Union Steward James Smith attempted to set up an appointment with Burchard to discuss D__’s situation but was unable to do so. In essence, by not meeting with her, Burchard denied D__ her due process rights.
Witness Hasbell’s testimony did not support the Agency’s position. When asked whether he could recall any occasion where D__ referred to another female as a slut or another co-worker as a fuck face, Hasbell testified that, “I cannot recall that.” When asked if reading one of the memorandums of record had helped him recall what transpired, Hasbell responded, “I honestly can’t recall.”
The five-day suspension of D__ was without just cause. It should be rescinded or reduced and D__ should be made whole for her losses.
My impression of D__ is that she is a good person who means no harm. I liked her and suspect that before she was suspended, she was going through troubled times in her personal life. Maybe acting tough and being course in her communications was in fact her way of unconsciously crying out for help. But, the fact remains that she made some serious mistakes in judgement. That is, bad mouthing other employees, using language only a rap artist would appreciate, and talking about shooting herself and maybe others.
I’m not altogether convinced that D__ wasn’t set up by co-workers. Going forward, she should be leery of employees who may try to “sandbag” her into using foul language and saying negative things about co-workers. I suspect that she has been sandbagged in the past. It is possible that D__ was baited into referring to a co-worker as a slut. If so, she took the bait and in no time, word got back to others that D__ had referred to someone, but not C__, as a slut.
Hopefully, D__ will read this opinion and follow this simple advice. Here’s a capsule of what it takes to stay out of trouble at work.3 Be at work everyday and on time. Do your job well. And, to the extent that you have to talk at all, talk about the work itself. If someone asks how things are going, say, “I love everything and everybody.” If you do all of this, there is no guarantee that you will be a great success. But, it is almost a sure thing that you won’t be suspended for bad behavior.
Despite the absence of two key witnesses, who in all likelihood were fearful of attending the hearing, the Agency proved its case that D__ was verbally abusive and potentially dangerous to herself and others. Ironically, D__’s testimony did much to support the Agency’s case against her. She admitted to comments that were verbally abusive in the workplace and to comments that any reasonable person would consider threatening to herself and others. Even if she were referring to taking her own life and not the lives of others, logically, others are at risk when one considers that it is not uncommon for suicide to become the final act of those who commit workplace violence.4 Given the dubious credibility of D__’s testimony and the strength of the Agency’s case against D__, I’m inclined to believe that D__ did say something to imply that she should shoot co-workers.
At issue is whether the five-day suspension was reasonable in terms of D__’s behavior. Was the Agency justified to come down hard on D__? The answer is yes. A chronically abusive person in the workplace is an employee relations nightmare. Productivity suffers, morale plummets, and employees react to abuse through excessive absenteeism, accidents, transfers, and turnover. Employers who suffer an abusive employee signal to others that they are not concerned for the welfare of their employees.
Then there’s the tough talk about suicide and homicide. Such talk is unacceptable, particularly when one considers the impact of suicide and homicide on 9/11. Employers who do not take strong action against an employee who threatens self destruction or violence against others not only puts all employees at risk but may find themselves held legally responsible for ignoring the warning signs.
The five-day suspension of D__ was for just cause. The grievance is denied.
1 Cut and pasted from the Agency’s brief with minor editing.
2 Cut and pasted from the Union’s brief with minor editing.
3 Distilled from thousands of tedious pages of research related to surviving in the workplace over the long haul.
4 See “The Violence Prone Workplace” by Richard V. Denenberg and Mark Braverman for a complete rundown on the issues related to workplace violence.