I have presented a seminar titled Dealing with Performance and Conduct Issues dozens of times to supervisors, managers (and occasionally union officials) working at the Puget Sound Naval Shipyard (PSNS) in nearby Bremerton, WA, so it was with heightened interest that I read Susan Smith’s excellent summary of a US Court of Appeals decision regarding the PSNS and an employee they fired for several instances of inappropriate behavior toward women.
I had news of this case before reading Susan’s piece and took particular note of the fact that, while the employee’s conduct could reasonably be considered sexual harassment, the shipyard chose to charge him with “Inappropriate Conduct”. This decision may have contributed to the success the PSNS had in prosecuting the case before both a labor arbitrator and then defending the arbitrator’s decision before the appeals court.
Consider what discipline is all about
Disciplinary actions focus on inappropriate conduct. All of us have experienced illness or injury that required us to call in sick. When you’re actually about to launch your boat for a day of fishing when reporting yourself sick and are later caught in that lie, you are subject to disciplinary action. Likewise, if you’re caught taking a ream of copy paper from your agency’s supply cabinet to refill your home printer.
As with the two examples above, the welder who was removed by PSNS management should have known that his remarks to several women were inappropriate and offensive. Whether they rose to the level of removal is debatable, but some sort of disciplinary response seems reasonable to all but the most jaundiced readers.
Can you prove it?
Judges and arbitrators are trained in law and, therefore, take administrative charges seriously. “Threatening a Coworker” could serve as an example. As readers know, threatening words and/or behavior can prove serious. If witnessed by (or reported to) management, all but the most incompetent would look into the matter.
I had a couple of threat cases during my tenure at the Charleston Naval Shipyard many years back. In 1986, the Supreme Court decided a disciplinary case involving threats to others at work. It is titled Metz v. Treasury. Once that decision was made and published, we were required to assess the “Metz factors” to determine whether such a charge would stand the test of a grievance, appeal, or EEO complaint. My paperwork had to address:
- The listener’s reactions;
- The listener’s apprehension of harm;
- The speaker’s intent;
- The conditional nature of the statements; and
- The attendant circumstances.
After that had been done, I needed to review the Metz factors with management officials who would be responsible for authoring and signing the kind of paperwork Labor/Employee Relations Specialists (LERS) commonly prepare. Added to that would be a penalty analysis, which must conform to the “Douglas factors” promulgated in the 1980s by the Merit System Protection Board. It involved a lot of time and explaining, often requiring legal review. Like all competent specialists in my field, I was anticipating a grievance or EEO complaint where the burden of proof falls to management.
When preparing the paperwork for a disciplinary case, LERs have been trained to “frame” an appropriate “charge” describing the misconduct. In the majority of agencies, there is a “table of penalties” or similarly titled document that lists the various offenses to be considered by an LERS. This puts HR Specialists in a position similar to a district attorney, though they may have had no legal training.
Based on my experience, I’m guessing that most in the LERS community would have charged the PSNS welder with “Sexual Harassment”, “Disrespectful Conduct”, or similarly-worded terminology relating to their agency’s table of penalties. Were a grievance or EEO complaint pursued far enough, a judge must analyze whether remarks like “Your jeans look tighter around your butt when you climb the stairs” or “Come take a bubble bath” rise to the level of sexual harassment or whether they were intended to flatter rather than disrespect.
In most disciplinary cases, however, what management really wants to say to the employee is, “What you did was wrong” – whether the subject is lying, cheating, stealing, or flapping your jaw.
The Puget Sound Naval Shipyard dispensed with the formalities and took a more generic, route. The welder’s actions were deemed simply as “Inappropriate Behavior”. As the British would say, “Brilliant!”
The road seldom taken
Using the generic charge is a way of bypassing archaic tables of penalties and legal analysis of their terminology. Why not simplify disciplinary actions to their essence:
- Was the conduct inappropriate to a federal workplace, be it an industrial facility like a shipyard, a publicly-visible one like a national park, or cubicle/office laden regional office; and
- Is the disciplinary action taken as a result reasonable when weighing the Douglas factors?
Back in 2014, I authored a piece that was posted on the FedSmith site titled Clear the Table. I had learned back then that the Department of Labor and Social Security Administration had done away with their tables of penalties and explained why I felt (and still feel) that was a wise decision. Since then, the Office of Personnel Management has endorsed this move and rescinded their own table.
The shipyard case has taken this “debureaucratization” to the next level by making a serious disciplinary case hinge on a generic indictment of “Inappropriate Behavior”. Their HR and legal teams must have done so knowingly. The Navy’s time-worn “Schedule of Offenses and Recommended Remedies” (search for it yourself, should you choose) contains 45 possible specifications to be used when framing charges. These include “Sexual Harassment” and “Disrespectful Conduct”. They turned away from that traditional charging document and kept things simple and to the point. It worked.
I wish no ill toward the person on the receiving end of this (the most serious) disciplinary action. Informed by my own experience at a naval shipyard, I presume him to be highly skilled and imagine he’ll find work in his trade elsewhere and prove an excellent welder.
I hope he chooses (most conduct cases involve bad choices) to restrain his behavior as he moves on in life. He may come to understand and regret what he did. On the other side of the coin, I commend the PSNS for dealing creatively and decisively in their attempt to free innocent people from such obnoxious behaviors.
As for the Department of the Navy, I humbly urge it to expunge its Schedule of Offenses and Recommended Remedies. It was in place when I arrived in one of their personnel offices 42 years ago. It has outlived its presumed utility.
Specialists and attorneys can accomplish the dark task of disciplining employees without a table of penalties. In time, that skilled community may look back on the longstanding practice of framing charges as an unnecessary and needlessly complicating step in an already torturous process. The LER community needs to be reminded that the plunge is usually scariest in the moment before we take it.