Josh F. Bowers, P.C. Attorney at Law
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Federal Labor & Employee Relations, Update June 1998.

"Like a dog?" That's how witnesses described the treatment an employee received at the hands of an Army Corps of Engineers supervisor. Arbitrator Michael Allen reversed the removal of an employee, with the requisite back pay, in part because he concluded her supervisor was so abusive as to render any attempt by the employee to communicate with him useless. Communications between an employee and supervisor during a PIP would normally be a key element—and Corps management cited the employee's alleged refusal to do so a major element in its case. She was described as having an obstructive attitude, exemplified by her refusal to download (and possible even read) E-mail from her supervisor—E-mail which contained work instructions and similar information. Nor did she adequately respond to requests for status reports on her work. And, said management, there was more than substantial evidence her work failed to meet the minimal standards on two critical elements.

Not so, said the union. Her work wasn't substandard, and moreover, the hostile work environment it said was created by her supervisor made it impossible for her to work effectively. The supervisor was variously described as on a "witch hunt," "hostile," "degrading" and guilty of "unconscionable behavior" towards the grievant, if not the workforce in general. And, oh yeah, one witness testified that the treated the grievant "like a dog."

The arbitrator was very complimentary to representatives for both parties, describing their briefs and case presentations in praiseworthy terms. Unfortunately for management, that was the high point in the decision. Reading it suggests that the question of whether was in fact unacceptable took a back seat to the "hostile environment" issue. He seemed persuaded by the union's witnesses that the supervisor made it so hard on the employee that she couldn't have improved sufficiently no matter how hard she tried. He cited instances where she was reduced to tears by shouting hurled at her by the supervisor. He also took obvious note that the employee's previous work record under other supervisors had been good to excellent. Finally, he credited the employee's apparent decision to "give up" trying to deal with all the directives and requests for status reports—she was at the point where trying to work and trying to respond to the supervisor were mutually exclusive—there wasn't time to do both.

So...removal reversed. Back pay, etc. Attorney Josh Bowers (who seems to be having a field day with the Corps of Engineers lately) represented the grievant, and said, "The arbitrator's decision imposes justice on a workplace out of control." Bowers maintained that the problems were of long-standing and "well-known" to management.

We received this decision literally at presstime, so were unable to obtain a comment from the Corps of Engineers. If any official reaction is forthcoming, we'll have it for you in next month's Update. In the meantime, expect this decision to be cited by the union in any case you see which has an "unreasonable supervisor" element to it. Yeah, we know that arbitration decisions aren't technically precedential in other venues, but that doesn't mean they won't try. WE certainly would.

NFFE Local 852 U.S. Army Corps of Engineers, Louisville District, 4/29/98.

© 1998 by FPMI Communications, Inc.

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Josh F. Bowers, P.C.
1100 Wayne Avenue Suite 900
Silver Spring, MD 20910
(301) 565-0090


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