Order to Rehire Workplace Defecator Sets Crappy Precedent

26 Nov, 2019 Bob Wilson


A federal judge has upheld a decision ordering the Union Pacific Railroad to rehire an engineer who defecated on the exterior platform of a train, threw soiled tissues out a window, and made obscene gestures at security cameras.

Seems reasonable. At least they won’t schedule him in the dining car. I mean, it’s not like he had a crappy attitude or anything.

U.S. District Court Judge Brian Buescher upheld an earlier order that the employee must be rehired, despite the fact that he admitted to “defecating on a portion of the train connecting a locomotive and boxcar during a Nov. 20, 2016 stop.” He (the employee, not the judge) also admitted to tossing soiled tissues and flipping off security cameras. He told his manager afterwards that he left a "present" for his co-workers. He later blamed his actions on “physical and mental issues.”

Ya’ think? Where did he think he was? The streets of San Francisco?

An arbitration board had previously called the termination excessive and said the railroad should require the employee to undergo a medical and psychological evaluation, with an option to discipline him if he's found to be unfit for duty.

This case is unique in that it is both literally and figuratively a load of crap.

Terminating an employee who publicly defecates in his workplace is excessive? Really? Who should pay for the “medical and psychological evaluation?” Why are these things always the responsibility of the employer? I wonder, if the worker in question had dropped trou and left the arbitration board a “present” during the hearing, would they have felt any differently?

The interesting part of this story is that the judge reportedly disagreed with the board but said in his decision that he wasn't allowed to consider the merits of the case. He said instead that the railroad failed to prove the arbitration decision was not within the board's discretion.

That can only mean one thing. The employee in question wasn’t the only thing loaded with copious excrement. The contract with the union likely had its fair share as well – especially where it probably calls for the use of binding arbitration to settle employment disputes. It is ironic that arbitration was the only thing binding about this incident.

Many arbitration decisions can be subject to an appeal, however, due to the language that may exist within the contract, decisions are usually considered final. If a party can prove a flagrant unfairness in the arbitration process itself, they may have an opportunity to get that decision reversed. Otherwise, in most cases of binding arbitration, experts tell us that “finality is the rule rather than the exception.”

We don’t need to tell you that this outcome stinks as far as the employer is concerned. The reality of arbitration defending abhorrent behavior doesn’t serve them well. Ironically, it really doesn’t serve this employee’s unionized co-workers well either. Ordering the acceptance of the unacceptable degrades the workplace and damages the culture for all involved.

And defending the indefensible only lessens the outcome for everyone.

My father came to the United States from Canada in 1953. An Electrical Engineer, he had been lured away from General Electric Canada to work for RCA. He had never dealt with unions before. In his third week on the job, he was called to the factory floor to troubleshoot a problem with a piece of equipment on an assembly line where radios were produced. Seeing a cart holding the testing equipment he needed, he grabbed it and rolled it the twenty feet or so to the machine he needed to check. Suddenly, people started yelling, bells started ringing, the line shut down, and a grievance was filed against him. He did not know it at the time, but he was supposed to call for a unionized equipment mover to come from across the factory to roll that cart the required twenty feet.

Later, he asked his boss how he dealt with performance problems of unionized workers. His boss explained, “The first time there is an incident, the supervisor will discuss the issue with the worker, and drop a note in his file. The second time it occurs, the supervisor will write up a reprimand for the worker and drop it in his file. The third time it happens, we fire the supervisor.”

It’s a funny story, but that factory and those unionized jobs are long gone. We don’t make radios in this country anymore. While there are many reasons for that, accommodating inefficient and abusive policies helped ruin opportunity for everybody.

And submitting to a system that protects workplace defecators is likewise a decision that fosters and protects substandard behavior. It is a movement that figuratively dumps on us all.

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