Alert! Martians Are Coming!
By David S Farkas We live in a time when nothing can shock us anymore. For better or worse, every day we read of events that would have raised more than the eyebrows of our parents, but just don’t seem to affect us. The same is true in the legal world. Practitioners barely give a passing glance at decisions that would have once been unthinkable. Experience gives one a sense of “argued there, litigated that,” such that one is rarely surprised at anything he sees in the law. I, too, thought I’d seen everything – until the little green Martians landed on my desk.
It’s true. An eye-popping legal update recently came to my attention regarding an arbitration over a union grievance, where an arbitrator ruled that a bus driver deserved the written warning issued to him by his employer, for sharing his theories about aliens with passengers. The case began innocuously enough, with a woman riding a bus. While enjoying her ride, she suddenly received an unusual request from the driver. The driver asked the passenger to visit his website, while at the same time handing her a card with the website’s address, and a picture of a rocket ship on it.
The woman dutifully visited the driver’s site, where she encountered a photograph the driver had apparently taken during a flight from California to Michigan. The photo contained images which the website claimed were of a fetus, a white dove, a black calf, a “spaceman,” a skeleton in a black square, and a religious figure with a horn protruding from his head. The driver theorized, on the website, that the images were created by an intelligence much higher than Man, and “may be connected to Martian theory.”
An investigation revealed that the driver had discussed his theories of alien life with at least two other passengers, who, like the woman discussed above, felt disturbed. The employer issued a written warning to the driver, instructing him to keep out of the passengers’ space. (Ed. – get it?) The union grieved, however, contending that the driver was neither rude nor discourteous, and thus did not deserve the warning.
At arbitration, arbitrator Debra M. Brodsky agreed with the employer. She held that making passengers uncomfortable by discussing unnatural phenomena that could have been the result of some higher intelligence is a form of discourtesy. Astutely, she noted that riders could rightfully fear that the driver might perceive “odd formations” while driving the bus, a safety hazard. Moreover, the employer had told the grievant on two separate occasions before formally warning him that it was inappropriate to discuss his theories with his passengers.
Although Martian theory discussion may not be high on the list of employer concerns, this arbitration demonstrates the lengths some unions will go to protest what they feel to be unfair treatment. It is also revealing that the arbitrator based her decision in part on the fact that the employer had issued warnings before. This underscores the need to meticulously document all warnings to employees, even verbal warnings. Employers would do well to consider our little green friends when the need for discipline arises in the future.
The Labor Department of RB&S seeks to protect you from harm, extraterrestrial or otherwise. Please contact Alan Ross or David Farkas for more information.
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