Who would have thought the day would come…when I’d be blogging about poop? Now, I admit, due to the pandemic, and working virtually, and distancing, I do need to get out more. That said, the poop discussion is not an act of desperation on my part. It actually came up in a real, live case. If you’re like most employers, you’re probably thinking, “What’s the question? If an employee poops on my premises they’re out”, the employee gets purged, right? (See what I did there? Sorry, I couldn’t resist.) Seriously though, there are situations where you may have to re-think that seemingly sensible, no-brainer of a solution. Read on… The name of the case ( I did say there is a real case on this issue) is Union Pacific Railroad Company v International Association of Sheet Metal, Air, Rail, and Transportation Workers, (SMART)-Transportation Division No. 19-3747 (2/17/2021). Here’s what went down (rather literally — sorry it’s just too easy):
Matthew Lesback was an 18-year employee at Union Pacific. One fine day in November 2016, Lesback, for reasons which are not clear, saw fit to defecate on the connector between two cars throw soiled toilet paper out a train window (as you do), and inform his manager that he had a “present” for him– despite the restroom being steps away. His co-workers had to clean the mess using toilet paper and bottled water. . His co-workers had to clean the mess using paper towels and bottled water. Union Pacific terminated Lesback’s employment.
Citing his lengthy service and “other mitigating circumstances” (I’ll come back to that) an arbitration board reinstated Lesback. The United States District Court for the District of Nebraska upheld the award, and ultimately, so did the 8th Circuit Court of Appeals. Wait. An employee poops in public, admits to it, and gets to keep his job? How does that happen–and, perhaps more importantly, what does that mean for the rest of you, should you find yourselves in a similar situation?
Let’s look at the “other mitigating circumstances”. While not specified, the court referred to “psychological and physical matters”. The court and the arbitration board also referred to “personal matters”. Specifically, his wife had left him. (You might not be surprised about that.) It seems this was enough for the arbitration board to conclude that:
Given that [Lebsack] was a long-term employee with a known history of psychological issues, before any disciplinary action was contemplated, it would have been reasonable for [Union Pacific] to have first sent [Lebsack] for comprehensive psych and medical evaluations to determine his fitness for duty and the credibility of his explanations. If found fit, it would then have been appropriate to handle the incident strictly as a disciplinary matter.
So, does that mean that someone gets a free pass to engage in this or similarly outrageous behavior? No. The question that both the District Court and the 8th Circuit Court of Appeals addressed was first whether the arbitration board exceeded its authority, and second, whether this ruling means that an employer must always allow someone with a psychological issue more leeway to violate conduct rules.
In a nutshell, here’s how the court answered those questions: Basically when an employee is represented by a union, the arbitration board’s authority depends on what the Collective Bargaining Agreement says. If the CBA in any way limits an arbitration panel’s ability to modify an employer’s decision, then those limitations will apply. In this case, however, the “CBA does not expressly restrict the Board’s authority to review and modify Union Pacific’s remedy choice, even in a just-cause termination. Without such a limit, we hold that the Board’s remedy did not contradict or alter the CBA’s terms”.
Regarding the arbitration board’s reasoning that Union Pacific should have first sent Lesback for comprehensive evaluations, the court held that: “
The award only addresses Lebsack’s case. It imposes no prospective, all-encompassing duty on Union Pacific for any future cases. Further, Union Pacific’s timeliness argument fails because the Board seemingly contemplates postponing the investigation and other disciplinary procedures to allow for the completion of the psychological and medical evaluations. The governing CBA allows such a postponement for “good cause.”
For what it’s worth, it seems the court wanted to make it very clear that it didn’t agree with the arbitration board’s findings and that this case should not be seen as a far-reaching precedent when it ended with the following:
We share the district court’s bewilderment at the Board’s conclusion that a company cannot fire someone for purposefully defecating on company property. Even so, we cannot review the merits. Precedent limits us to asking if the Board is “arguably construing or applying the contract and acting within the scope of [its]authority.” N. States, 711 F.3d at 902. We conclude that the Board applied the governing CBA and acted within the scope of its authority.
OK, let’s now cut to the chase. What does this case mean for the rest of you out there? What if you don’t have to deal with any unions? Does that render this case irrelevant to you? Not necessarily. If you have an employee with a known history of psychological issues, you may, under the Americans with Disabilities Act, need to take that into account. Under the ADA you have to provide reasonable accommodations for qualified individuals with disabilities. If prior to this particular incident, the Railroad could have provided Lesback an accommodation that would have enabled him to comply with conduct standards, that could have averted this rather unfortunate event, then, arguably, it should have done so. I know, that’s a lot of “if’s”. With that said, reasonable accommodations are prospective. In other words, they need only address behavior or job performance, or related issues going forward. You are allowed to discipline an employee for past violations. The point is that you may have to look into whether there is an ADA issue before firing an employee with known disabilities that may be relevant to the situation at hand.
If your employee is represented by a union, then, before going forward with the disciplinary process, review the relevant provisions of the CBA–and consult with your friendly, local labor/employment counsel.
OK, that’s enough talk about poop for now. See you next time…
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
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