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Title: Public Utility Grant County, WA and International Brotherhood of Electrical Workers Local No. 77
Date: January, 1994
Arbitrator: Jack H. Calhoun
Citation: 1994 NAC 106

BEFORE THE ARBITRATOR

 

IN THE MATTER OF THE                              )

GRIEVANCE ARBITRATION                           )

            Between                                                          )

                                                                                    )

PUBLIC UTILITY DISTRICT NO. 2                         )          

OF GRANT COUNTY, WASHINGTON,                )

                                                                                   )            OPINION

                                                Employer,                    )             AND

                                                                                    )           AWARD

            and                                                                   )

                                                                                    )

INTERNATIONAL BROTHERHOOD OF                )

ELECTRICAL WORKERS, LOCAL NO. 77,            )

                                                                                    )

                                                Union.               )

 

--------------------------------

FMCS Case No. 93-20219

Jack H. Calhoun

Arbitrator

--------------------------------

 

 

Hearing Held

October 7, 1993

Ephrata, Washington

 

 

 

 

REPRESENTATION

 

 

FOR THE EMPLOYER:                             FOR THE UNION:

 

Clifford R. Sears                                                  John Trumble

Foianini Law Offices                          Assistant Business Manager

109 Division St. West                            IBEW Local 77

P.O. Box 908                                                    77 Angus Square

Ephrata, WA  98823                                       Kennewick, WA  99336

 


BACKGROUND

 

            The Employer, Public Utility District No. 2 of Grant County, Washington (hereinafter the District), and the Union, International Brotherhood of Electrical Workers, Local No. 77 (hereinafter the Union), are parties to a collective bargaining agreement covering the terms and conditions of employment of bargaining unit employees during the period of time pertinent to the grievance at issue.  On April 14, 1993, the grievant, Benjamin K. Perdue, was discharged after he admitted he produced and distributed a sexually offensive flyer that named a female employee.  A grievance was filed by the Union on April 15, 1993, protesting the severity of the penalty imposed.  Resolution of the dispute was not achieved at earlier steps in the grievance procedure.  The matter was submitted to arbitration for a final and binding decision.  A hearing was held on October 7, 1993, at which time the parties agreed the issue was properly before the arbitrator.  Post hearing briefs were received on November 6, 1993.

            During the evidentiary hearing the Union objected to the admission of two District exhibits in the form of memoranda that show Mr. Perdue denied any knowledge of the flyers that are the subject of this grievance.  The Union claimed it had not seen the two memoranda during earlier steps of the grievance procedure.  I overruled the objection and asked the parties to address the matter in their briefs.  Having reviewed the entire record, I now reaffirm my decision to admit the evidence for the reason that it was the grievant himself who made the statements referred to in the memoranda.  Moreover, the grievant testified on direct examination that he at first denied knowledge of the flyers.

            After the hearing, on October 21, 1993, the Union moved to reopen the record to have a letter dated August 17, 1993 admitted in evidence.  The District objected.

            On October 22, 1993 the District filed a motion to have a declaration of a District employee admitted to the record.  The Union objected.

            On November 2, 1993, the District filed a motion to reopen the record to have a letter from the Equal Employment Opportunity Commission to one of the Union's witnesses, a District employee, admitted in evidence.  At the same time, the District moved to have declarations from three more District employees admitted in evidence.  The Union objected to the admission of the letter and the declarations.

            The Union's motion to reopen for the purpose of admitting the August 17 letter is denied.  With due diligence, the letter could have been available and offered at the hearing.

            The District's motions regarding the four declarations are denied.  The Union had no opportunity to cross-examine the declarants.  The District's motion to have the letter from the Equal Employment Opportunity Commission admitted in evidence is also denied.  It appears the District knew the employee had filed a complaint with that agency on October 16, 1992.  The notice of right to sue was a part of the complaint process, which the District must have been aware of as of the date the complaint was filed.

ISSUE

            The parties stipulated that the issue is:  Within the context of the entire agreement, was the discipline assessed by the District just, and if not, what is the appropriate remedy.

RELEVANT CONTRACT PROVISIONS

            The following provisions of the parties' collective bargaining agreement are relevant to the issue in dispute:

            4.2                   Grievance

 

4.2.2            In the case of a grievance arising over disciplinary action, the question submitted to arbitration shall be "Within the context of the entire Agreement, was the discipline assessed by the District just, and if not, what is the appropriate remedy?"

 

            4.3                   Arbitration

 

4.3.1            Any grievance resulting from a difference of opinion as to the interpretation of this Agreement which remains unsettled after having been fully processed pursuant to the provisions of the grievance procedure may be submitted to arbitration providing written application is made within thirty (30) days following receipt of the written Step 2 answer.

 

4.3.5            Each party shall be given the opportunity to produce witnesses and cross examine.

            The Arbitrator shall pass on the admissibility of the evidence.  Each of the parties hereto agree to produce all its books, records or documents, or any other material or certified copies thereof, which, in the opinion of the Arbitrator are relevant to the issues in dispute.  The Arbitrator's decision and award shall be published, giving the reasons(s) therefore.

 

4.3.6            The award of the Arbitrator shall be final and conclusive on the parties hereto.  Both parties hereto agree that from the inception of a dispute, and pending the selection of the Arbitrator, and pending the award of the Arbitrator, the subject matter of the controversy shall not be changed and the status quo shall in all respects be maintained.  The Arbitrator shall have the power only to interpret this Agreement and shall not have power to alter or amend it.

 

4.3.7            Each party will bear its own costs and the party who is not upheld shall pay the Arbitrator's costs.

 

            Should the Arbitrator be unable to determine which of the parties is not upheld, then he shall order the Arbitrator's costs to be divided equally.

 

STATEMENT OF FACTS

            The grievant, Benjamin Perdue, worked for the District for three and one-half years prior to his discharge.  He was a Distribution Dispatcher Trainee III and was considered an above-average employee who had no prior disciplinary actions against him.

            On March 10, 1993, while walking to work, Mr. Perdue devised a plan to discredit a co-worker, Ms. Woodward, who had been promoted recently to a position in the District as a local manager.  There were two male employees who were also promoted to local manager positions at the same time Ms. Woodward received her promotion.  Mr. Perdue did not attempt to discredit either of the two male employees.

            When Mr. Perdue arrived at work on March 10, he produced, on District time and equipment, a one-page flyer that identified Ms. Woodward as the subject of several sexually related comments suggesting she engaged in specific sex acts to obtain her promotion.  The flyer contained such phrases as, "Getting A Head At the P.U.D.," "Dawn Woodard Shows How To Succeed At Work," "Classes Include:  Desk Diving, Head Bobbing, Belt Buckle Identification, A Clean Desk Gives Way To Quick Rises, Dictating In The Prone Position, and Sticking To The Back Seat In Relations."  The flyer's comments ended with the words "Nightly Classes" and a note at the bottom to post it.

            The grievant placed three flyers in separate interdepartmental mailing envelopes and mailed them to three of the District's most populous work locations where they subsequently became widespread among employees and others.  The message contained in the flyers eventually became known to people in the general community, including friends of Ms. Woodward and her family.  Ms. Woodward's reactions to the flyers were anger, frustration, humiliation, embarrassment, and bewilderment.  They created a hostile and offensive work environment and unreasonably interfered with her work.

            When the District's manager became aware of the existence of the flyer, he directed an investigation.  The envelopes on which Mr. Perdue wrote the names of the three addressees were recovered by the District and sent to a handwriting analyst, along with samples of the handwriting of seven individuals, including Perdue.  The analyst's report to the District was dated March 30, 1993 and concluded without reservation that Perdue was the individual who hand printed the names of the addressees on the three interdepartmental mailing envelopes.

            On April 7, 1993 two management officials of the District met with Mr. Perdue about the flyer and asked him if he knew anything about it.  He denied any knowledge of it and specifically denied any personal involvement in its preparation and distribution.

            On April 8, 1993 the two officials again met with Perdue and confronted him with the evidence the District had that implicated him in the formulation and dissemination of the flyers. He was presented with the three envelopes in which the flyers were mailed and asked if the writing looked familiar.  He admitted it was his and indicated he expected disciplinary action to follow.  He continued to deny he had produced the flyer until it was suggested to him that a peculiarity in the spelling and pronunciation of Ms. Woodward's name indicated he devised the flyer.  At that time he admitted that he prepared and mailed the flyer, and he explained that he did so because others whom he knew to be qualified for the local manager position that was given to Ms. Woodward did not get the position.  He said he had heard rumors about Ms. Woodward and a District official, so he decided to create the flyer.  He then asked if they had a check ready for him.  He was informed he would have a disciplinary hearing at which he could have Union representation and present any evidence he had and explain his conduct.

            The disciplinary hearing was held on April 13, 1993.  Mr. Perdue read an 11-page statement apologizing for producing and publishing the flyers, and apologizing to Ms. Woodward and others in the District.  He went on to explain that he believed he acted as he did on March 10 because he was under a lot of stress due to the District's recent efforts toward reorganization, which caused him concern about his tenure and status as an employee.

            As a result of the disciplinary hearing, Donald Long, director of power management for the District, who supervises the dispatchers through the chief dispatcher, recommended to the District manager that Mr. Perdue be suspended for two months without pay and that he be placed on a 10-month probationary period during which time the District could decide whether he could regain the confidence of local managers and other dispatchers.  If it was determined by the District that he could not regain their confidence, the District was to have the right to unilaterally discharge him or transfer him to another position.  Mr. Long's recommendation was made because he was aware that future communications between Ms. Woodward and Mr. Perdue could be inhibited, thereby creating a potential safety problem.  He was not aware at that time, however, that Ms. Woodward could not trust Mr. Perdue.

            The District manager met with Perdue and the shop stewardess on April 14, 1993.  Perdue read a statement admitting his mistake and explaining his behavior problems.  The manager terminated Mr. Perdue's employment with the District.  The following day Perdue received a formal statement from the District setting forth the reasons for his discharge:  Violation of the District's policies on sexual harassment, improper use of District equipment, and improper use of District time.

            The District has a written policy prohibiting sexual harassment, which is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.  The definition includes sexual advances made as a condition of employment.  The policy indicates that the District considers sexual harassment to be an offense for which discipline, including immediate termination, is warranted.

            The District has a written policy that provides minimum guidelines for employee conduct and recommends actions to be taken by supervisors where violations are found.  First offense discharge is recommended for theft, fighting, falsifying records, insubordination, destruction of property, intoxication, and false time reporting.  The policy states that it is the seriousness of the offense committed that is determinative of whether progressive discipline is appropriate.

            The District's policy against sexual harassment was adopted prior to the time Mr. Perdue was hired in 1989.  New policies are distributed by the personnel services department to all employees.  Employees may look at District policies at any time.  The District's personnel policy manual was made available to Mr. Perdue during his initial training period.

            Although the policy manual was available, its existence was not well known among rank and file employees.  The District provided no training to employees on sexual harassment prior to Perdue's discharge.

            At the time Mr. Perdue produced the flyer, March 10, 1993, he was under stress over the uncertain status of his job because of the District's ongoing reorganization efforts.  The clinical social worker, Ms. Hunzeker, who counseled him from mid-April to mid-June of 1993, after he had been terminated by the District, testified that his stress was the reason he produced the flyers.  She was of the opinion he could handle the stress of his dispatcher duties very well, but had difficulty coping with the uncertainty of his employment future with the District.

            Past disciplinary cases involving District employees who were proved to have committed various offenses, such as insubordination, theft, unauthorized use of a District vehicle, falsifying records, and sexual harassment were shown by the District to be distinguishable from the offense committed by Mr. Perdue.  No known violator of District policies was proved to have gone unpunished when the circumstances of the individual case, including the seriousness and widespread nature thereof, were considered.

            In the case of the theft of District property from a warehouse, the District could not prove who took what property.  An employee who permitted his wife to use a District vehicle for personal reasons was penalized by the loss of five days of vacation.  An employee who was found to be insubordinate and guilty of falsifying time records was required to forfeit 10 days of vacation and forego upgrade to foreman.  He was later terminated when he continued to be insubordinate.  A line crew foreman received a 10-day suspension without pay for insubordination.  He was later terminated for a separate offense.  Two employees were given three-day suspensions for putting their arms around a female employee of a contractor.  An employee who was accused of making sexually derogatory remarks about a female worker denied he made such remarks and was given a written warning.  A female employee encountered a pornographic picture when she entered the locked office of a foreman.  She complained to her supervisor who had the matter resolved.  She lodged no further complaints.  Another female employee who worked in the warehouse from which District property was being stolen informed District officials of the thefts.  She became concerned for her safety and was subsequently transferred to another position.  The District found no harassment had occurred.  She quit and filed a claim against the District and was ultimately restored to a position equivalent to her former warehouse position.  An employee was accused of stealing computer equipment, but upon investigation it was determined he was guilty of misuse of District equipment.  He was suspended for 30 days without pay.

            The District has terminated employees for such offenses as being drunk on duty, making false statements on employment applications, not reporting the use of vacation time, poor work, nonproductivity and absenteeism, insubordination and conflicts with other employees, and false statements about driving records.

POSITION OF THE PARTIES

The District

            The District contends that the flyers that were produced and distributed by Mr. Perdue amount to gross violations of its policy against sexual harassment.  They describe how Ms. Woodward used sex to obtain her promotion, and they were eventually made known to virtually all District employees and some outsiders.  The flyers had a devastating effect on Ms. Woodward.  They created a hostile work environment to women employees of the District because they had the potential to create a chilling effect on women who are willing to assume supervisory positions.

            Under District policies, termination is an appropriate penalty; sexual harassment offenses may be punished by discharge particularly where it is malicious, offensive, and widespread.  Varying degrees of sexual harassment warrant different degrees of discipline.  Mr. Perdue's conduct is almost the equivalent of a physical attack because it was so malicious, premeditated, and widespread.  His offense was of a magnitude similar to offenses for which the District has imposed termination.

            The District maintains that although Mr. Perdue's record was satisfactory, the relationship between Ms. Woodward and him cannot be restored so that both could be effective at their work.  His action potentially affected the safety of others under Ms. Woodward's supervision.

            All policies and procedures of the District regarding discipline, including discharge, were followed in terminating Mr. Perdue.  He was provided a pre-termination hearing at which he was presented with the opportunity to make a statement and present his evidence.  At a later date he was allowed to make another statement.  His subsequent termination was consistent with punishment guidelines contained in District policy.  It is the seriousness of the offense that determines what level of discipline is imposed, the District argues.  Progressive discipline is neither appropriate nor required when the violation is as serious as it is in this case.

            Mr. Perdue had notice of the District's policy against sexual harassment and he knew his conduct was wrong and warranted termination.  The policy was in existence prior to the time he was hired, and it was reviewed with him by another employee.  After being confronted with the evidence against him, Mr. Perdue indicated he expected disciplinary action to be taken against him and asked if his check was ready.

            The District argues that either Mr. Perdue's stress argument is not valid or he is not suited to perform the duties of a dispatcher, which is a high-stress job.  All District employees were under stress from the downsizing efforts that were taking place.  Mr. Perdue was the only one who reacted as he did.  Moreover, he was not going to be affected by the downsizing effort.  If stress got to him, the District believes he is unsuited for the position.

            It is the District's position that employees have been terminated for offenses of a similar magnitude and the discipline imposed is consistent with the principle that lesser punishment is given for lesser offenses.  Mr. Perdue's action in creating a hostile work environment was the most serious form of sexual harassment ever encountered by the District.  The penalty imposed on him was in proportion to the punishment imposed for less-serious offenses.  No other incident of creating a hostile work environment has occurred at the District.  The Union ignores distinctions concerning the levels of severity of sexual harassment, the District contends.

            There is no credible evidence to show where the cartoons, which were admitted in evidence, came from.  The person who testified as to their origin was giving self-serving testimony.  Moreover, none of the cartoons were created by District employees, were about District employees, named a District employee, or implied anyone received a promotion based on sexual favors.  If offensive cartoons were passed among employees, they would not be unwelcome among those employees and would not violate the policy against sexual harassment, in the District's view.

            The District contends that Mr. Perdue's conduct in creating a hostile work environment violated Title VII of the Civil Rights Act of 1964 and the District's policy prohibiting sexual harassment.  Furthermore, Mr. Perdue's conduct was so severe that his mere presence creates a hostile work environment for Ms. Woodward because she would have to work with him on a regular basis.  The relationship between them cannot be restored, no matter how much remorse he feels.  He could not be effective in a position that is involved in the safety of employees supervised by Ms. Woodward.  She will never be able to trust Perdue again.  Mr. Long would have recommended termination had he known Ms. Woodward could not trust Perdue again.

            The District cannot maintain a work environment free of sexual harassment if employees can create a hostile environment and expect to be reinstated.  The reinstatement of Mr. Perdue would have a chilling effect on women who seek supervisory positions at the District because of the message sent by the flyers.

            Under the management rights clause of the collective bargaining agreement, the District reserves the right to determine appropriate punishment.  Corrective discipline is not required under the agreement or District policies.  The policy against sexual harassment specifically states that it is an offense for which discipline, including immediate termination, is warranted.  While the District has imposed corrective discipline for lesser offenses, it is not required to use corrective discipline where the offense is similar in magnitude to offenses that require immediate discharge under District policies or other offenses that are malum in se, the District argues.

            Mr. Perdue's conduct was just short of a physical criminal attack, and in some ways more vicious than fighting, theft, and gross insubordination.  His conduct constitutes a gross violation of the policy against sexual harassment, which provides for discipline up to and including discharge.

            One of the District policies provides a checklist for managers to use to avoid arbitrary or capricious actions when discipline is to be imposed on an employee.  Each of the items on the checklist was considered by the District manager and his team prior to making the decision to terminate Mr. Perdue.  None of the mitigating circumstances claimed by the Union are valid.  The Union claims the decision to terminate was, in essence, an abuse of discretion.  An abuse of discretion is the exercise of discretion in a clearly untenable and manifestly unreasonable manner.  The decision to terminate Mr. Perdue was not an abuse of discretion because the process followed by the District was not inherently arbitrary or capricious.  The decision that his conduct fell within the category of offenses warranting discharge, or was malum in se, cannot be said to be irrational or based on untenable grounds.

            The District contends that conduct that is wrong in itself is not excused for lack of notice or training.  Discipline may be imposed without specific notice for socially disapproved misconduct such as theft, arson, assault, rape, selling drugs, gambling, and sexual harassment.  Mr. Perdue knew his conduct was wrong because he at first tried to lie his way out.  Employers are not required to issue a notice to each employee stating "Do not injure your co-worker."

            The Union had the burden to prove that the penalty assessed against Mr. Perdue was discriminatory, the District argues.  The District cites Elkouri and Elkouri, How Arbitration Works, 4th Ed. (1985), at page 685, for the proposition that where a reasonable basis for variations in penalties exists, such variations will be permitted notwithstanding the charge of disparate treatment. 

            The District contends there are varying levels of sexual harassment warranting different penalties.  Mr. Perdue's conduct was at the highest level, just short of a criminal attack.  It created a hostile work environment, instances of which the District had not previously had.  The disciplinary cases set forth by the Union show distinctions in penalty based on the level of severity.  The District does not have a history of applying progressive discipline in all cases regardless of the merits of the case and the seriousness of the offense.  Employees have been terminated for offenses of a similar magnitude to that of Mr. Perdue's offense.  Distinctions based on the seriousness of the offense and the merits of the case do not establish a past practice warranting a lessor penalty for Mr. Perdue.

The Union

            The Union contends that the District's decision to reduce the number of employees and to restructure the dispatching function, coupled with the fact that Mr. Perdue would be accelerated to full distribution dispatcher, affected him and caused him to suffer from stress.  While he was under job stress, he produced the flyer.

            The initial phase of the downsizing did not affect him; however, the second phase did.  It was announced by the District on March 1, 1993 that one position in the dispatching area had to be eliminated.  During the first week of March, several plans and ideas were circulated on how to accommodate the reduction or the transition into an 11-person office.

            The restructure depended upon several factors coming together, the Union argues.  As of March 4 or 5, the plan was to have Mr. Perdue, who was still in training, as the only distribution dispatcher.

            The Union maintains that when Mr. Perdue was first confronted with the questions regarding the flyers, he denied he produced them because he was ashamed and thought that his denial would cause the matter to go away.

            Mr. Perdue sought counseling-referral assistance through the District's employee assistance program as soon as he was terminated.  He obtained the services of a counselor who determined that he was under a lot of stress at work and that he produced the flyer because he was acting out stress relief, which smart people often do when they are unable to cope.  The counselor testified he was not a harasser or abuser.  She said Mr. Perdue did not premeditate producing the flyer.

            The Union argues that, despite the District's assertion to the contrary, there were still uncertainties involved with the plans to restructure.  Mr. Perdue was suffering from stress brought on by the downsizing.  At the time, there were no guarantees that he would maintain his status quo.

            Mr. Perdue was able to handle the stress of his dispatcher job, but the stress of downsizing was different.  Downsizing was the subject of constant conversation, which he was aware of and which caused him stress.  Employees did not know who was going where; some had to take pay cuts and others were reduced in rank.

            Mr. Perdue had a good work record during his tenure with the District, the Union maintains.  His evaluations all showed him to be above standard, and he has no disciplinary record.

            The District did not provide training to its employees on sexual harassment prior to Mr. Perdue's discharge.  Although it had a policy prohibiting sexual harassment, the existence of the policy was not well-known.  The Union argues that experts hold that for sexual harassment policies to be effective, employees have to understand it; the employer must communicate it and its meaning to employees.

            The Union concedes the District may have had cause to discipline Mr. Perdue to some degree; however, discharge was unjust because he was suffering from stress, and the penalty was inconsistent with past discipline for similar offenses.  The Union details nine cases where the District imposed less discipline than termination.  Some of the cases involved serious violations such as theft, falsifying records, and insubordination, which clearly establish inconsistence in applying the District's policies.  Mr. Perdue's good work record and his problem with stress should serve to mitigate the penalty.  His discharge should be modified to a suspension.

            The District's assertion that if Mr. Perdue is reinstated safety would be compromised is meritless, in the Union's view.  A lineman testified that if Perdue were reinstated, the lineman would have no concern for his safety.  Mr. Perdue said he could get along with Ms. Woodward and that safety was the main objective of his dispatching job.  The communication between the dispatcher and area managers is less frequent than the District contends, it occurs about once a week.

            The stipulated issue gives the arbitrator authority to modify the penalty imposed, and there is no language in the contract that precludes him from modifying it.  Sexual harassment is a high profile and politically charged issue in today's workplace, but discipline for sexual harassment should not be different from other cases of misconduct.  The Union cites specific cases where arbitrators have found that penalties other than discharge were appropriate in sexual harassment cases.

            The Union contends that the discharge of Mr. Perdue should be modified to a 30-day suspension without pay.  He should be reinstated with back pay, minus interim earnings, and placed on probation for one year.  During the probationary period, he may be terminated for conduct related to sexual harassment without recourse.

            The Union specifically asks that reinstatement without back pay not be awarded because it would send the wrong message to the District.  The District would learn it may impose unfair, harsh discipline with impunity and only be required to re-employ the terminated employee, who bore the full brunt of the discipline.  Finally, the Union asks that the District be required to pay the Arbitrator's fees and expenses.

OPINION

            In order to determine whether the grievant was discharged for just cause, it is necessary to determine:  (1) whether his misconduct was sexual harassment, and (2) whether the discipline imposed by the District was appropriate.  The District had the burden to show by a preponderance of the evidence that the grievant was discharged for a bona fide, work-related reason.  The Union had the burden of proving that the penalty imposed was improper.

            The Equal Employment Opportunity Commission issued Guidelines on Sexual Harassment in 1980 which define sexual harassment as:


            Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when ... such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.  (29 CFR 1604.11)

 


            In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the U.S. Supreme Court approved the applicability and enforceability of the EEOC guidelines.  Two different types of sexual harassment have been recognized by the EEOC and federal courts:  (1) quid-pro-quo, and (2) hostile-environment.  The instant case does not involve sexual harassment of the first type.

            To prove that misconduct created a hostile environment, it must be demonstrated:  (1) that the person was subjected to offensive conduct; (2) that the conduct was unwelcome; (3) that the conduct was sufficiently severe or pervasive to alter the condition of the employee's employment and create an abusive working environment; and (4) that the employee suffered some degree of injury as a result of the abusive and hostile environment.

            In determining whether sexual harassment is sufficiently severe or pervasive to create a hostile work environment, the harasser's conduct must be evaluated from the perspective of a reasonable woman.  Ellison v. Brady, 924 F.2d 872 (CA9, 1991).

            There is no dispute over whether Mr. Perdue did in fact produce and publish the flyers in question.  The Union states as much in it brief.  Further, there is no question that the message in the flyers was of a sexual nature.

            As to whether his conduct created a hostile work environment for Ms. Woodward, there can be little doubt.  It is undisputed that she was the subject of the flyers.  In fact, she was named on the flyer itself.  The conduct was offensive to her.  No reasonable person could read one of the flyers and conclude otherwise.  She was accused of immoral sexual conduct.  The accusation was uninvited and altogether unwelcome.  No action on Ms. Woodward's part was suggested to indicate she was less than completely offended by the message contained in the flyers.

            From the perspective of Ms. Woodward, as indicted by her testimony, the conduct of Mr. Perdue in publishing the flyers was extremely severe and pervasive to the extent of creating an abusive working environment.  The flyers created barriers to her success and isolated her from developing communications.  They had an adverse effect on her ability to build trust and respect with her employees.  They affected her self-image and self-esteem, and caused her to doubt whether people respected her.  In discussions concerning the dispatch office, she feels embarrassed, awkward, and uncomfortable.  Mr. Perdue's conduct was completely hostile and patently offensive.  The environment created by his actions was abusive and hostile.  The flyers sowed the seeds of doubt and distrust among Ms. Woodward's co-workers.

            There can be no serious argument that Mr. Perdue's conduct constituted sexual harassment.  The question then is whether the penalty imposed by the District was proper.  Where there mitigating factors that should serve to warrant a penalty less than discharge?

            The District had a written policy prohibiting sexual harassment, which contained a statement that termination could be imposed.  The policy was contained in a manual that was available to employees.  Testimony by one of the Union's witnesses showed that Mr. Perdue had the policy reviewed with him when he began his employment.  The District's policies also contained a provision allowing supervisors to impose more drastic forms of discipline for more serious violations of policy.  Progressive discipline was not required in cases where the violation was serious.  Although previous to Mr. Perdue's termination the District had not provided training to employees on its sexual harassment policy, the policy did exist in written form and was available to anyone who had questions about it.  The lack of training cannot excuse Mr. Perdue's conduct.  It was such obviously grievous and destructive conduct that anyone could expect to know it was wrong in itself.  Society condemns slander, and rumor mongering affects the morale of an organization.  Food Wagon Tom Boy Store, 71-1 ARB 8021 (Sembower, 1970).  Sexual harassment is one of the offenses for which discipline may be imposed without specific advance notice.  Dover Corp., 78-2 ARB 8465 (Haemmel, 1978).

            All the evidence on the record indicates that the misconduct engaged in by Mr. Perdue was especially egregious and widespread.  It was a wicked act designed to harm a female employee who had worked hard to achieve an amount of success only to have the merit of her efforts put in question by a devised scheme to unjustifiably discredit her throughout the District.  The District's policies did not preclude termination in such cases.

            The Union argues Mr. Perdue was under stress caused by the District's restructuring.  Mr. Perdue himself and his counselor, a social worker, testified it caused him to produce the flyers.  Earlier herein I have found that there were still uncertainties that could have existed, at least from Mr. Perdue's perspective, regarding his tenure and capacity with the District.  There is also ample evidence to the contrary; however, I have credited Mr. Perdue's testimony on this point and decided he was indeed concerned about his future with the District immediately before he produced the flyers.  His stress or concern about his future, however, cannot serve to mitigate the devastating effect his subsequent action had on Ms. Woodward and his ability to perform again as a dispatcher who is required to communicate with her.  Moreover, his stress, in itself, does not warrant a reduction of the penalty, given the deliberateness with which he planned and executed his deed.  His action in producing the flyer was well thought out, calculated, and conscious.  Almost all workers in the present-day work force experience anxiety and pressure from employers' efforts to produce their goods and services more efficiently through reorganization and restructuring.  It would be a serious mistake for one to conclude that an employer should not be able to discharge employees during such times when they commit flagrant violations of policy and decency. 

            The fact that Mr. Perdue had a good work record of three and one-half years without any disciplinary problems, and that he had never sexually harassed anyone previously is noteworthy, but not persuasive as to mitigation of the penalty.  Three and one-half years is not a long period of employment.  That he was a good employee who had not harassed females previously is admirable, but not mitigating here as to the penalty.

            The remaining question is whether the District engaged in disparate treatment of Mr. Perdue by discharging him.  The Union listed nine cases to show that other employees of the District were treated in a more lenient regard for the offenses they committed.  The District pointed to a number of cases where it imposed discharge upon employees for various offenses.

            Where a reasonable basis for variation in penalties exists, they are permitted.  See Elkouri and Elkouri, How Arbitration Works, 4th Ed. (1985) at p. 685.  The critical question is whether there was a valid reason for the unequal treatment.

            The valid reasons for Mr. Perdue's discharge are significant.  His conduct was extremely malicious, premeditated, and widespread.  The severity of his misconduct was much greater than any of the sexual harassment cases the District had handled.  It was the first such case that created a hostile work environment, the extent of which was spread throughout the organization of the District.  There is nothing in the record to prove that the District has ever condoned behavior of the kind and seriousness in which Mr. Perdue engaged.  It is not improper for an employer to consider the effect or consequences of an employee's conduct in determining the degree of discipline to impose.  WGN Continental Broadcasting Corp., 88-2 ARB 8500 (Kossoff, 1988).

            The Union cited cases to show that some arbitrators reduce the penalty of discharge to a lesser form of discipline in sexual harassment cases.  My review of the cases leads me to conclude that, depending upon the facts and circumstances of the particular case, where the conduct of the grievant is especially grievous, and where there are no significant mitigating factors involved, the better view is to uphold the discharge or, at a minimum, to conditionally reinstate the offender without back pay.  In the instant case, the Union specifically asked that reinstatement without back pay not be awarded.  Given the severity of Mr. Perdue's offense, its widespread effect, and its long-term impact on Ms. Woodward's work environment, reinstatement without back pay is the minimum penalty that could be appropriate here.

            There is no reason, however, to set aside the penalty imposed upon Mr. Perdue by the District.  There was no discrimination or unequal treatment that was not justified based on the facts of Mr. Perdue's sexual harassment of Ms. Woodward.  His conduct was particularly egregious and was deserving of termination.  The District did not abuse its discretion.  I find that within the context of the entire agreement, the discipline assessed by the District was just.  Accordingly, the grievance must be denied.

AWARD

            The grievance is denied.

            Pursuant to the parties' collective bargaining agreement, the Union, being the party that is not upheld, is ordered to pay the arbitrator's costs, including fees and expenses.

            Dated this _____ day of January 1994.

 

                                                                                                                                                                                                       Jack H. Calhoun

 

 

07-93W

 

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