Over the past 15 years in the U.S. and Canada, the phenomena of workplace bullying and mobbing (bullying by a group rather than an individual) have been widely discussed and debated. There is a growing consensus among lay people and scholars on the definition of workplace bullying, its causes, and its effects on individuals as well as on the workplace itself. At the same time, translating this consensus into effective employment policies and contract provisions is challenging: the parties need clear and enforceable language that also meets the sometimes divergent interests of employees, employers and unions.
Workplace bullying Essay Example
Our purpose in this paper is to provide assistance to advocates and arbitrators as they deal with this complex workplace problem. We briefly review the definitions, prevalence, impact and causes of workplace bullying and mobbing. We discuss the evolving approaches to workplace bullying by union and management representatives, providing a sampling of employer policy and contract language. Finally, we review a set of arbitration cases for insights into the grounds on which bullying and mobbing cases have been decided. Our conclusion outlines suggestions for further research.
The bulk of our research focuses on cases, contracts and employers in the United States. We have tried to add Canadian examples where possible, although differences in the legal and labor relations structures of the two countries limit the applicability of our conclusions. The authors of this paper are labor educators at the Labor Education and Research Center, University of Oregon. In this capacity, among other duties, we train union staff and elected representatives in the technical aspects of labor-management relations. In the early 2000s, we began to notice increased frustration among these advocates with the problem of workplace bullying. For example, in a training class for a group of 30 stewards in a manufacturing facility we were told that bullying by co-workers was one of the most prevalent and difficult problems the stewards faced.
A year or two later, we were asked to conduct a seminar for a local governmental jurisdiction – for both union stewards and first-line supervisors – on the phenomenon of bullying and how it might be handled. Since that time, we have conducted several training sessions each year on bullying and mobbing, some for union locals, some for unions and management jointly, and the rest open to a range of union participants. It has become clear that the phenomenon is persistent in both the public and private sectors, and that there is little consensus on effective approaches.
What We Know About Bullying
Because much has been written recently about the phenomenon of workplace bullying, this section contains only a brief summary of definitions, prevalence and causes of the problem.1 Much attention has been paid to defining the terms “bullying” and “mobbing.” The latter was first used by a Swedish psychologist, Heinz Leymann in the 1980s, to refer to “hostile behaviors that were being directed at workers.”2 By the time U.S. researchers began to pay attention in the 1990s, the more popular term had become “bullying,” and “mobbing” was increasingly used to refer to bullying by a group rather than an individual.3 By this time attention to workplace bullying was already developed in the U.K., Canada, Australia and many European countries.4 The Campaign Against Workplace Bullying, created by Drs. Gary and Ruth Namie, popularized the phenomenon in the U.S. beyond academic circles and into mainstream media as well as political action.
Most definitions today refer to workplace bullying as hostile behavior directed at employees that affects their ability to do their jobs. Bullying can come from supervisors, co-workers, customers, patients or clients, and it is presumed that the hostile behavior occurs repeatedly, rather than as an isolated event. The specific behaviors that have been documented range from social ostracism to overt aggression (spreading rumors, harsh criticism, even violence).
The ultimate consequence of bullying is generally to force the targeted employee out of his or her position.5 A widely accepted definition of bullying can be found in the Healthy Workplace Bill. The proposed language describes an abusive work environment as: Conduct, including acts, omissions, or both, that a reasonable person would find hostile, based on the severity, nature, and frequency of the defendant’s conduct. Abusive conduct may include, but is not limited to: repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct of a threatening, intimidating, or humiliating nature; the sabotage or undermining of an employee’s work performance; or attempts to exploit employee’s known psychological or physical vulnerability. A single act normally will not constitute abusive conduct, but an especially severe act may meet this standard.6
The key terms in this definition are “that a reasonable person would find hostile” and “severity, nature and frequency”. The reasonable person standard attempts to add some level of objectivity to what can seem a very subjective process. Some less severe behaviors, which may be borderline bullying, are very hard to prevent and correct, although they can have a cumulative effect that can result in negative outcomes.7 A single act of anger or hostility – for example, yelling at someone – might or might not be considered bullying, depending on the nature of the incident and the severity. “Target” is the term used most often to refer to the person being bullied and avoids the negative connotations of the other common term, “victim.” The literature emphasizes that there are no “typical” targets – they might be outspoken or vulnerable, “nice,” or “unfriendly”, ethical or not – all employees can be targeted by bullies.8 Bullying behavior falls roughly into two categories: chronic and opportunistic. Chronic bullies have a pathological need to control and harass others.
When they succeed in forcing their target to quit or move on, they move to another target. Opportunistic bullies take advantage of a workplace culture that tolerates abuse.9 We know that bullying takes a toll on the target. It affects work performance; it also affects the target’s health and can lead to severe illness and even suicide. The effects on the workplace and on co-workers have also been documented: increased absenteeism, rising healthcare and disability costs, low morale, decreased productivity, and increased turnover.10 A 2010 Zogby poll commissioned by the Workplace Bullying Institute showed that 35 percent of Americans reported being bullied at work and another 15 percent reported having witnessed it (approximately the same percentage (37 percent) of those who responded to a similar Zogby poll in 2007). 68 percent of the reported bullying in the 2010 poll was same-gender.11 Anecdotally, there is a perceived increase in the number of bullying cases over the last ten years. Some argue that the uptick in reported incidences of bullying is an outgrowth of increased attention to the problem. And, certainly, finding a label for a problem that has doubtless always existed, and drawing attention to it, can lead to increased reporting of the phenomenon by those affected.
Also, we know it is not uncommon for behavior that is not technically bullying (tough management, lost tempers, personality clashes, etc.) to be misunderstood or mislabeled by affected employees. However, incidents of bullying appear to increase in workplaces that are unstable, poorly managed, stressful, understaffed, undergoing major demographic changes or otherwise in turmoil.12 Where global competition has undermined traditional patterns of employment stability, where recession has been long-lasting, where unionization rates have declined and turnover rates have increased, and where economic restructuring is widespread, it is not surprising that bullying has become a much more widespread concern.
I. How Unions and Management Approach Workplace Bullying
Bullying and mobbing behavior poses a daunting challenge for labor relations practitioners. The problem is complex and there is little in the way of legal or contractual guidance for handling problems. In this paper we analyze strategies that unions and employers are using to deal with bullying in a collective bargaining environment. Unfortunately, it is difficult to recommend specific “best practices” for stopping bullying, because there is little evidence-based research on what actually works.13 With that disclaimer, it is still worthwhile to examine trends in how practitioners approach the problem, which include: Employer policies that specifically prohibit bullying or bullying behaviors; Anti-violence policies and/or policies that are broader in their scope, incorporating ideas such as “mutual respect”, “civil communication” or “professional conduct” standards; Contract language and the grievance procedure;
Health and safety policies and law.14
A. Employer Policy in the Absence of Effective Statutory Remedies
When workplace bullying is directed at a member of a protected class covered by federal, state or local anti-discrimination statutes, it may be dealt with as illegal harassment. But when there is no protected class issue, neither is there a statutory remedy in most jurisdictions. Over the last decade there have been multiple attempts in the United States to pass legislation that would make bullying in the workplace illegal. The “Healthy Workplace Bill” was introduced in 13 states, including Oregon, Kansas, Missouri and Hawaii, but failed in all.15 The effort to enact legislation continues in the United States, spurred by the fact that attention to bullying has increased greatly.
Canada is further along in this effort to enact legislation. Quebec has language in its safety and health statute prohibiting “psychological harassment,” and in 2010 Ontario enacted changes to its Workplace Safety and Health Act, adding a definition of workplace harassment to the anti-violence language in the statute: “Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”16 Meanwhile, efforts to prevent bullying behavior have become more widespread in both countries. Many employers have implemented policies (which may or may not be mutually agreed upon) that deal with bullying or similar hostile behaviors. Employer policies vary in how they handle bullying. Some take a broad approach, addressing workplace interactions between employees, mandating “professional conduct” or “civility.” Some have anti-violence or anti-harassment policies calling for a safe environment that is free of threats, intimidation and physical harm, and these may or may not have a specific reference to bullying.
The Oregon Nurses Association’s (ONA) 2011 publication, “Nurses and Bullying in the Workplace: A Resource Guide” elaborates on the elements of a model employer policy: A statement that reflects the values of the hospital with regard to bullying, what the hospital will do in response, and a description of the consequences for bullying behavior.17 One challenge to employers is how to define exactly what constitutes bullying. This used to be one of the most difficult steps in coming up with an anti-bullying policy, however the definition outlined in the proposed Healthy Workplace Bill may provide a template to aid the process. Some employers go further and add caveats spelling out what will not be considered bullying.
For example, the City of Portland, Oregon discipline policy cites bullying as a reason for which an employee can be disciplined, and offers a very detailed guideline as to what would be considered bullying, versus what is not necessarily bullying.18 In addition, the policy specifies the consequences for bullying behavior, how to report instances of bullying, the steps for investigating claims of bullying, and finally, a prohibition against retaliation. This kind of specificity can narrow the room for disagreement among the union, the employer, and ultimately, if the issue is arbitrable, the arbitrator.
Another example comes from the State of Oregon’s Department of Environmental Quality (DEQ), one of the earliest public agencies in Oregon to enact an anti-bullying policy, after being pushed vigorously to do so by the union representing its employees, the American Federation of State, County and Municipal Employee (AFSCME), Local 3336.19 The DEQ’s “Anti-Mobbing Policy” defined mobbing as follows: Workplace mobbing is a form of harassment that is not based on an individual’s protected class status (i.e. gender, race, sexual orientation, religion, age, disability, national origin etc.) and is perpetrated by any employee against another employee…Mobbing is intentional verbal or nonverbal conduct by one or more individuals against another individual over a period of time.20
The DEQ policy listed the types of behavior and the various ways bullying could occur: “…among co-workers; among co-workers with a manager siding against one of the co-workers…” The DEQ policy also allowed, if requested by the target, a dispute resolution procedure with a mediator. One noteworthy element of the policy was its specification that the steps for resolving the bullying might include removing the targeted employee from the situation. The DEQ policy allowed an employee to report the issue to the union steward or supervisor, but the investigation would be conducted by the Human Resources Department; and corrective action would “not preclude the requirement that management follow state policy regarding disciplinary actions or that the union provide fair representation to represented employees.”21
The requirement to follow “existing guidelines for discipline” is a key consideration in formulating an employer policy in a union setting. Most of the literature on bullying recommends a “zero tolerance” policy as a best practice. However, in spite of the frequency of this recommendation in the literature, zero tolerance language can be problematic for both sides. Managers enforcing zero tolerance policies might feel empowered to ignore factors that an arbitrator might consider crucial to establishing an argument of just cause for discipline, such as the use of progressive discipline, whether the punishment fits the offense, or mitigating circumstances. In Part II we give examples of arbitration cases where, in spite of the existence of zero tolerance language, the union filed a grievance alleging a violation of the just cause standard. With a zero tolerance policy the arbitrator might give the employer more leeway in choosing the level of discipline, but in the cases we analyzed, the arbitrator considered the overall situation and extenuating circumstances before making a decision.22
There are other problems with zero tolerance language. For example, there is both anecdotal information and evidence-based research that describes situations where the bullied employee “snaps” and becomes the perpetrator.23 The zero tolerance policy could easily have the effect of capturing the behavior of the bullied employee, but not the bully’s. This does not meet the interest of management or the union. The ONA guide cited above cautions against zero tolerance policies, noting that: “…while the organization may be trying to ‘signal their commitment to a bully-free workplace’… The unintended consequence may be a mandatory firing of an employee who should not have been.”24 To be effective and credible, of course, any employer policy on bullying must be implemented consistently and energetically, and at all levels of management.25 Recent research in healthcare settings indicates that front-line supervisory intervention is an effective way to change behavior.26
Enforcement of anti-bullying policy can be difficult, of course, especially when management must take action against a perpetrator who is in a position of power, a high producer or strategically important. And if the work environment is unhealthy in other ways (unrealistic expectations, unclear job roles, job insecurity, and perceived injustices), bullying can be even more difficult to isolate and eradicate.27
B. Negotiated Contract Language
For many unions trying to address workplace bullying, having language in the collective bargaining agreement that deals with the issue is preferred over employer policy. Negotiating contract language can give unions more control over the process, including access to the grievance procedure. The process of negotiating the language can provide a means for internal discussion and debate among elected leaders and members as to the correct strategy to use.
Bullying can be a particularly difficult issue for unions, especially in member against member situations. “Bully boss” situations, in which the bully is a supervisor or other management representative, while possibly more damaging to the target(s) due to the inherent power of supervisors and other management,28 are in some ways more straightforward for unions to address. While dealing with a bullying supervisor is not in any way an easy process, at least unions can use their usual “tools” to try to correct the behavior. When the bully is a co-worker/union member the situation is a bit trickier. Traditionally, unions have been averse to playing a role in member-on-member disputes, unless they have a legal mandate to do so, such as in discrimination and sexual harassment cases. After all, discipline is the responsibility of the employer.
However, bullying is such a widespread issue, impacting so many members, that in the last decade many unions have pushed for contract language as well as employer policies that prohibit bullying, even if it has meant that they have had to represent the employees disciplined under the very policy for which they advocated. Even if the employer has a policy on bullying, it makes sense, from the union’s perspective, to negotiate contract language. The language may make it possible to use the grievance procedure to pursue perpetrators; and while it may provide alternative resolution processes rather than access to the grievance and arbitration process; at least the process provides a label and visibility to the problem and thus a way to engage management in discussions of solutions.
The most basic type of contract provision is that which names disrespect, incivility and/or bullying specifically as unacceptable in the workplace but provides no specific resolution process. Some contract language provides that bullying behavior may be subject to discipline under a just cause provision.29
Some anti-bullying provisions are grievable or even arbitrable.30 Some are not, but are subject to an alternative resolution procedure. An example of such language can be found in the 2012-2013 bargaining agreement between Western Washington University and the Washington Federation of State Employees, AFSCME Council 28, Article 3 – Workplace Behavior: 3.1 The Employer and the Union agree that all employees should work in an environment that fosters mutual respect and professionalism. The parties agree that inappropriate behavior in the workplace does not promote the University’s business, employee well being, or productivity. All employees are responsible for contributing to such an environment and are expected to treat others with courtesy and respect.
3.2 Inappropriate workplace behavior by employees, supervisors and/or managers will not be tolerated. If an employee and/or the employee’s union representative believes the employee has been subjected to inappropriate workplace behavior, the employee and/or the employee’s representative is encouraged to report this behavior to the employee’s supervisor, a manager in the employee’s chain of command and/or the Human Resources Office. The University will investigate the reported behavior and take appropriate action as necessary. The employee and/or union representative will be notified upon conclusion. 3.3 This Article is not subject to the grievance procedure in Article 30.31