By Jim Cline and Geoff Kiernan
In Federal Bureau of Prisons, an arbitrator ruled that a corrections officer could not sustain his claim that the Federal Bureau of Prisons discriminated against him for being Hispanic. This finding was largely because none of his co-workers corroborated his story and thus there was no evidence to substantiate his claim.
The grievant, a Hispanic male, alleged that his Lieutenant made disparaging remarks about his ethnicity during a meeting about a potential of a Hispanic inmate uprising. He alleged said “ I’m going to need all the officers I can count on…” Then when looking at the Grievant, remarked, “not you. We can’t count on this Mexican.”
While the Grievant asserted that his co-workers were present and heard the Lieutenant’s slur, none of the officers appeared at the hearing. Two affidavits presented from his co-workers, whom the grievant stated were there, did not corroborate the Officer’s version of the story. In fact the affidavits stated that the comments never occurred.
The arbitrator explained “ here, the evidence moves for merely being non-corroborative of the grievant’s claim, to being firmly contradictory. Nothing subsequently presented in the evidences served to substantiate the Officers alleged version”. The arbitrator went on to explain that he could only decide the issue based on the evidence presented. He explained:
The preponderance of the evidence presented reflects a simple failure by the Grievant and Union to prove that the singular and predicating act of discrimination occurred, thus rendering any evidence of other discriminatory conduct by the Lieutenant and the Agency’s handing thereof, irrelevant. Not to oversimplify this matter but to engage in a prolonged discussion of the violation of Contract or policy…is conspicuously unwarranted and would serve the parties no purpose without proof of the discriminatory action.
Essentially the arbitrator is explaining that without any evidence to substantiate his claim the arbitrator can’t provide any relief. It is not the job of the arbitrator to consider why someone may or may not want to testify, it is the arbitrators job to reach a conclusion based on the evidence at the hearing. Thus in this case there was no evidence, so there was no claim. Thus the grievance was denied.
This case stands for the simple proposition that a union cannot win its case when it lacks sufficient evidence. That is something that should have been sorted out prior to the time and expense of the arbitration hearing.
