Title: Public Utility Grant County, WA and
International Brotherhood of Electrical Workers Local No. 77
THE MATTER OF THE
UTILITY DISTRICT NO. 2
GRANT COUNTY, WASHINGTON,
BROTHERHOOD OF )
WORKERS, LOCAL NO. 77,
Case No. 93-20219
FOR THE UNION:
Assistant Business Manager
Division St. West
IBEW Local 77
77 Angus Square
Kennewick, WA 99336
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
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
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.
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.
The following provisions of the parties' collective bargaining
agreement are relevant to the issue in dispute:
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?"
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.
Each party shall be given the opportunity to produce witnesses and
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
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.
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.
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
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
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
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
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
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
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,
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
OF THE PARTIES
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.
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
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
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 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
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
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
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
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
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
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
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.
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
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,
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.
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
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028