By: Jim Cline and Geoff Kiernan
In Federal Bureau of Prisons an arbitrator found that the Union failed to carry it burden of proof in proving that an Officer was “bullied” by his Commanding Officer, “Captain T.” The union attempted to prove that the Captain’s behavior should be seen as a precursor to work violence, which the CBA expressly states, cannot be tolerated. The agency however held that discipline is to be expected and the Officer was not singled by his superiors.
The Officer had worked for the prison for 16 years and at one point was the Union president. He eventually achieved a supervisor’s rank at the prison, however he requested a transfer back down to a union position in order to gain a better quality of life. Prior to his voluntary demotion, he was a member of the management negotiation team and helped craft a new schedule for the union employees. However, his agreement was ultimately modified and changed by “Captain T.” As result of this modification the Union filed an Unfair Labor Practice against the Bureau.
After the officer had returned to a position in the bargaining unit, he reported that he felt he had been bullied by the Captain. While it was determined that the Captain had violated no policy, the Captain was told to avoid contact with the Officer and the control of Officer performance evaluations was given to another officer. Then a month later, the Captain went to the Officer’s work station and inquired and discussed his work performance with a co-worker.
The Union claimed that the Officer was unfairly being harassed as a result of his decision to move from a management position to a union position. The union asserted that the agency has tolerated this harassment to the point whereas they have created a “prelude to workplace violence.” Furthermore, the Captain violated agency policies which forbid discussing work performance with co-workers. The agency asserted that the Officer failed to show any policy violations and maintained that behavior exhibited by Captain T was simply that of a superior officer to his subordinate.
The arbitrator was unconvinced by the Unions argument that Captain T was intentionally attempting to provoke the Officer. He noted that the staffing of a correctional institution is similar to a military organization. This means that while at times the Captain may have been abrupt and commanding, as commander it his largely his job to appear to be abrupt and commanding.
The arbitrator ruled that “there is insufficient evidence to prove that he singled out the Officer to harassment, intimidation and bullying”. While the contract did state that Agency should not wait until violent action occurred to take corrective action, the union still had to show that the Captain intended for violence to occur.
The arbitrator reminded the parties that the union carried to burden of proving that a violation had occurred. In this case he found that union’s burden was particular high because most of the evidence was based of the testimony of the parties. The arbitrator explained:
[that] clear and convincing evidence is the proper standard for this case. Thus, in this instance, it was the Union’s burden to come forward with clear, unequivocal evidence of harassment, intimidation and bullying to sustain its claim that was a precursor to workplace violence in this case
The arbitrator found that the evidence in this case could not prove that the Captain intended to cause violence to the Officer. So while the Captain’s actions may have been inappropriate, the union did not prove that these actions were made to insight the Officer to violence. So ultimately the grievance was denied.
It appears that these parties may have some labor management problems. Grievances over employer “bullying” are, well, a bit unusual.
Here the union claimed that the Captain’s aggressive enforcement approach was going to incite violence. For the arbitrator to have believed that he would have to assume that the Officer had a pretty thin skin. Tough, even excessively zealous, supervision should not be a prequel to violent employee responses.
This appears to be a grievance in search of a contract violation. We are often asked for advice on how to respond to difficult employers. We always note that responses need to be grounded in specific laws or CBA terms. The law prohibits many things but it does not provide relief for your boss being a simple jerk.
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