(Source: Conference Reporter Newsletter 04/18/2019)
At the Tampa conference last month, four labor arbitrators discussed a case in which the employer – a bank – disciplined an employee for using offensive language (the F word) toward a co-worker and for bullying her. The discussion focused on the proper level of discipline. The arbitrators felt management over-reacted. What follows are excerpts from that discussion.
The penalty must be proportionate to the offense and employee history.
First, management has the right to establish a rule that employees must be civil toward each other. Second, the use of the F word is so prevalent today that it seems almost old-fashioned to comment about its use. But there has to be a relationship between the penalty and the offense. The bank says to the employee, “The next time you use foul language, you’ll be terminated.” That essentially is imposing a last chance agreement or final warning. And that does not comport with progressive discipline. She is an otherwise good, 13-year employee. I know bullying is being recognized as a legitimate concern, but this did not rise to the level of warranting an LCA.
What is going on in the background?
The employer was doing everything right until it got to the LCA. The first thing you want to think about is: What’s up with her? What’s going on that would make her react like this? We haven’t seen these problems before so what’s triggering her? The employer appropriately refers her to the EAP. That makes sense, so the EAP can figure out why she’s lashing out at her co-workers. I am also okay with the written warning. Why then is there also an LCA put in place? She has two counselings, a written warning, and now this LCA which states: if you do it again, you’re fired. That’s just too severe a step to take. That’s not how progressive discipline works. The next step would be suspension. You’re trying to correct behavior. You’re not trying to push her out the door after one written warning.
Look at the language of the LCA: “If there are any further complaints concerning your interactions with co-employees or members of the public [you will be discharged].” Look at the word – complaints. This is extraordinary and I don’t think a future arbitrator will go along with the literal language. It doesn’t even require the employer to document that there were insulting comments made, just that there was a complaint. Read literally, the language has a terrifying effect upon the employee. That language, in and of itself, goes beyond any reasonable reaction to what happened.
Is there another approach management could take?
There is another approach. She has been having problems for awhile. Instead of giving her an oral reprimand and then a written reprimand, they coached her twice. And then, the employer held a team meeting to emphasize the civility rules. The union steward tells the supervisor that the “past coachings probably didn’t take.” What does that mean? It means that she’s known to be somebody who curses a lot or is offensive in her communications with colleagues. Then, we have this incident. And the employer sends her to an EAP and says, “We’re not going to tolerate this.” In this day and age, arbitrators are very conscious of the new emphasis in society on bullying. They’re trying to tell her: don’t do it. Culture counts. This is a bank and not a rough & tumble factory. There is heightened scrutiny and they’re trying to train her to keep her mouth shut and be polite. Instead of saying, “You do this again and you’ll be discharged,” the employer should have said, “If you do this again, you will be disciplined up to and including discharge.”