Arbitrator orders Grievant made whole, and all discipline removed from file
Two New Mexico Department of Transportation employees were involved in an altercation that resulted in one employee being terminated for workplace violence and another being given a seven day suspension for defending himself.
The aggressor had a history of antagonizing the grievant. At one point the aggressor pointed a grinder-sharpened trash-picker at the grievant’s chest. At the end of the workday, when the grievant was walking to his car, the aggressor drove his car directly toward the Grievant and struck him at least twice. The Grievant threw a water bottle at the aggressor’s windshield, shattering it, after having his leg injured severely enough to require transport to a hospital.
The aggressor was fired. Initially, field supervisors recommended firing the grievant. The NMDOT district engineer later reduced that to a seven day suspension for violating state code of conduct, administrative directive 812 (workplace violence mitigation). NMDOT argued progressive discipline, citing an earlier letter of reprimand on the grievant for an entirely different matter that didn’t involve workplace violence.
Ken Long, President of Local 1211, dismantled state’s argument with straightforward facts.
- The grievant was the victim and only acting in self-defense when throwing a bottle of water at the windshield of a vehicle that had struck him;
- The state cannot discipline a worker for not properly de-escalating workplace violence if they’re under attack;
- The grievant and his co-workers have not been trained on how to execute administrative directive 812;
Progressive discipline demands that prior disciplinary actions be weighed by the severity of the incident. Workplace violence is in a class of its own
The aggressor in this incident had crossed the line on numerous occasions, and supervisors had neglected their responsibility to intervene and mediate the workers’ conflict prior to the incident.
The arbitrator sided with the union’s argument of self defense, and determined that the Grievant’s throwing a bottle of water did not constitute misconduct, or rise to the level of workplace violence based on credible evidence. He ordered NMDOT to restore the Grievants lost wages and benefit payments.
AFSCME Steward Lessons:
- Policies on workplace conflict, such as Administrative Directive 812 exist for the benefit of all parties.
- Our Union should demand that management schedule trainings that make it possible for members to have skills needed to de-escalating workplace violence.
- Maintain a timeline on letters of reprimand; we must request in writing they be removed from personnel files after one year, or however long your contract dictates they may be retained.
- Remind co-workers to be vigilant, recognize when things are coming to a boil between workers, and talk to their union stewards before violence breaks out and everyone get disciplined.
