This Arbitration arises pursuant to Agreement between Oregon Public Employees Union ("Union"), and State of Oregon, Department of Transportation, Driver and Motor Vehicle Services Branch (“State,” “Department” or "Employer"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

Hearing was held on March 17 and 18, 1997, in Portland, Oregon, and on April 9, 1997, in Salem, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  The parties submitted the matter on closing oral argument on May 7, 1997.

APPEARANCES:

On behalf of the Union:

 

Susan Dobrof, Esquire, Swanson, Thomas & Coon, 621 SW Morrison, Suite 900, Portland, OR   97205

 

On behalf of the State:

 

Josephine Hawthorne, Esquire, Assistant Attorney General, Labor and Employment Section, Department of Justice, 1162 Court Street NE, Salem, OR   97310

 

             ISSUE

 

Whether there was just cause for the discharge of Jose Mora; and, if not, what should be the remedy?

 

   RELEVANT SECTIONS OF AGREEMENT

ARTICLE 19--PERSONNEL RECORDS

...

Section 5.  Material reflecting caution, consultation, warning, admonishment, and reprimand shall be retained for a maximum of three (3) years.  Such material may however be removed after twenty-four (24) months, provided there has been no recurrence of the problem or a related problem in that time.  Earlier removal will be permitted when requested by an employee and if approved by the Appointing Authority.

...

 

ARTICLE 20--DISCIPLINE AND DISCHARGE

...

Section 1.  The principles of progressive discipline shall be used when appropriate.  Discipline shall include, but not be limited to: written reprimands; denial of an annual performance pay increase; reduction in pay; demotion; suspension; and dismissal.  Discipline shall be imposed only for just cause.

 

               FACTS

Grievant has worked for the Department since 1981.  He initially worked in the Highway Division, then transferred to the Forest Grove Branch of the Motor Vehicles Division (the “Division”) in 1989.  He transferred to the Northeast Portland Branch of the Division (“Northeast”) in November 1994.  He was dismissed effective January 29, 1996.  The dismissal letter enumerated incidents prior to his arrival at Northeast and other events involving notice of workplace expectations, described later herein.  The dismissal itself was based on the following allegations:

On numerous occasions, you have engaged in inappropriate behavior while at work that is disrespectful of female co-workers.  You touched them on the face, shoulder, and back.  You continued your inappropriate behavior despite repeated statements directed to you by your co-workers that your behavior was unwelcome.

 

In late August or early September, 1995 you asked a female co-worker “Can I spank you?”  On a continuing basis over the last several months, you touched this employee’s shoulder or back as you walked past her.  You continued to do this despite the employee’s repeated directives to stop it.  Additionally, you reached out and patted her face with your hand after she told you to “knock it off.”

 

In October or November, 1995, you entered the break room where the same female employee was standing at the sink.  In the presence of of [sic] another employee, you ap­proached her with your back to hers, pushed up against her, and rotated your buttocks against hers two times.  When she said “Jose, stop it”, you laughed and continued on your route to your locker.

 

On November 28, 1995, you entered the break room where the same female co-worker and others were present.  When one of them remarked that you were wearing jeans, you re­sponded by loosening your belt buckle, grabbing the zipper of the jeans, and saying something like “Oh, baby, I know you want it” or “I know you want some, Baby” and laughing.  One of the women present believed that you were going to take off your pants and turned her head away.

 

On that same day, November 28, 1995, you told the same female co-worker “You’re such a troublemaker” as she left the Office Leader’s office.

 

Approximately in mid-November, 1995, you pushed your chair up against that of a female co-worker and ran your hands down her back.  Since that event she has told you to leave her alone, that you were rude, and that she didn’t want to talk to you.  She has avoided you.  You continued to throw paper clips in her direction, even after she told you that she didn’t like it.

...

Despite repeated directives from management over a sustained period of time, you continue to engage in behavior that is disrespectful of others, disruptive to the work environment, and totally inappropriate and unacceptable.

 

Your actions created a work environment that is detrimental to a number of female co-work­ers. Your behavior embarrassed some female co-workers and made them uncomfortable.  Some female co-workers have avoided you rather than subject themselves to your actions.  At least one female co-worker repeatedly made it known that your behavior was un­acceptable to her.  Your characterization of her as a troublemaker reflects retaliation for complaining about your behavior toward her.

 

Your failure to respond to your co-worker’s repeated requests to stop your unwelcome behavior demonstrates disrespect in the extreme.  The Department reasonably expects its employees to establish and maintain cooperative working relationships with others.  You have failed to meet the standards and expectations of appropriate behavior and conduct of any ODOT employee, regardless of position, classification, or level.

The Department cannot continue to employ individuals whose conduct is contrary to its values and detrimental to the well-being of others.  You have been directed many times over the last four years of standards and expectations of appropriate behavior in the workplace, and of your need to meet these expectations and behave appropriately.  You have received professional counseling regarding cooperation in the workplace.  You have been told clearly that you would be dismissed unless your conduct changed.  Despite all of this, you continue to exhibit disrespectful behavior toward others.

The bulk of these allegations involved Grievant’s interactions with co-worker Phyllis Whitmore.  Whitmore was hired on August 1, 1995, as a temporary employee, working at the reception desk.  She later became a limited duration employee, and was out of the office for training between September 11 and October 2.  By all accounts, Whitmore and Grievant were friendly and joked with one another at the office.  On a few occasions, Grievant gave Whitmore a ride home from work; Whitmore testified Grievant was always a “perfect gentleman” in those rides.

Whitmore talked to co-workers Marianne Vandervort and Jeanette Curry about various incidents with Grievant.  She testified Curry told her she did not have to tolerate that behavior and suggested she talk to Office Leader Eveline McGuire.^[1]  Although she believes the incidents were blown out of proportion, she wanted the troublesome behavior to stop.

THE INITIAL COMPLAINT AND INVESTIGATION

On November 28, McGuire gave Whitmore a packet of insurance materials and other documents.  Whitmore had only recently become a limited duration employee.  As Whitmore went through the documents in the break room, she came across a pamphlet on sexual harassment.  She commented to McGuire, “We should give this to [Grievant].”  Whitmore testified McGuire asked her if there was something they should talk about.  Whitmore later met with McGuire in the office and told her of events with Grievant.

McGuire testified she did not inquire immediately into the reason for Whitmore’s comment, but simply  returned to her office, intending to inquire later.  Curry sought her out in the office a few minutes later and said Grievant had been harassing Whitmore.  According to McGuire, Curry began describing an incident between Grievant and Whitmore.  When McGuire asked whether Curry had witnessed the incident, Curry said she had not, but that Vandervort had.  McGuire talked to Vandervort, who described an incident in which Grievant rubbed his buttocks against Whitmore.  McGuire then called Whitmore in.  Whitmore described the buttocks incident, and also an incident involving Grievant’s jeans.  McGuire testified she did not ask other employees about the matter.  Instead, on November 29, she contacted her superiors and requested an investigation.

In a December 4 memo, McGuire summarized the steps she had taken. The memo briefly recounted the November 28 reports from Curry, Vandervort and Whitmore, including one of an incident involving Grievant’s jeans, which allegedly had occurred “That morning while [Whitmore] was on break.”

Personnel Officer Joyce MacWilliamson began an investigation on  November 30.  MacWilliamson interviewed the witnesses identified in McGuire’s memo regarding the specific events.  She also asked those witnesses whether anyone else had witnessed the conduct, and interviewed anyone identified in that process.   She testified she was unaware employee Gayle Watts was present for any incident, and Watts was not at work that day.  She did not recall asking shop steward Betty Latimer about specific incidents, and could not recall whether she asked employee Jennifer Davis about specific incidents.  She did not interview Susan Dooley, a temporary employee who had worked for a few months in the “dealer center.”^[2]

On November 30, after MacWilliamson had finished interviewing for the day, Grievant sought out McGuire.  He asked what was going on, and said he was sure it involved im.  He also said he had heard it involved “harassment.”  On the advice of Senior Personnel Officer Victoria Masengale, McGuire told Grievant there was a sexual harassment complaint involving him.  When Grievant asked who had com­plained, McGuire responded she could not tell him or discuss incidents.  She also declined to answer whether the complaint was from someone at the counter or someone in the dealer center.  Grievant left mid-day on December 1 on sick leave caused by “stress and mental anguish,” saying he would also be off work on the following Monday and Tuesday.^[3]  He remained off work until December 7.

MacWilliamson and Systems Manager Michael Ward met with Grievant and his shop steward on December 6.  Grievant was asked about specific incidents, but was not given the names of the people allegedly involved.  That information was provided to the Union on March 1, 1996.  By then, the Union had interviewed all the complaining witnesses.

In mid-December 1995, MacWilliamson asked other employees in Northeast about  the general work atmosphere and whether they had witnessed any incidents of inappropriate comments or touching.  She did not inquire into specific incidents raised in her investigation, except where an employee had been identified as a witness to an incident.  She testified she wanted to know whether the office culture was one in which there was a lot of off-color humor, touching, or sexually-oriented behavior.  She testified Latimer told her there was not a lot of touching, there were no backrubs, and there were few jokes.

Masengale took up the investigation after MacWilliamson left town in December 1996 due to a death in the family.  She re-interviewed Whitmore and McGuire, spoke to Davis by phone, and interviewed Watts.  She and MacWilliamson both had input on the discharge letter.

THE “CAN I SPANK YOU” INCIDENT

Whitmore testified that once, while she was in the break room, Grievant asked if he could spank her.  She responded, “What?”  He started laughing.  She testified she took the comment as a joke, and joined him in laughter.  She had not heard Grievant joking with other employees about being a bad boy or needing a spanking.  MacWilliamson’s November 30 interview notes indicate this event occurred three months earlier.

Grievant denied asking to spank anyone.  He testified he sometimes pulled minor pranks on Dooley.  In response, Dooley would joke that she was going to tell his mother he was a bad boy and needed a spanking.  He initially testified that was the only reference to spanking he ever heard in the workplace.  He later testified to an occasion when Dooley offered to massage Whitmore’s shoulders and moved toward her.  According to Grievant, Whitmore responded, “If you touch me, I’m going to spank the shit out of you.”  He considered this a joking comment.

Davis testified Grievant and Dooley joked with one another frequently.  On one occasion, Grievant commented he had been a bad boy.  In response, Dooley asked if he needed a spanking.  Davis did not hear Grievant ask to spank anyone.

THE BUTTOCKS-RUBBING INCIDENT

The allegation that Grievant rubbed his buttocks against Whitmore involves the break room.  The break room is a small rectangular room dominated by a large rectangular table.  The coffee pot, a counter with a sink, and refrigerator sit at one end of the room.  At the time, a set of lockers and a television sat at the other end of the room, near the door; a large couch sat along one wall, blocking any movement along that side of the table.  To get to the sink or coffee pot, one had to pass along the remaining side of the table, then walk between the refrigerator and the end of the table.  If two people wanted to pass simultaneously behind someone seated at the long side of the table, physical contact would be unavoidable.  A single person could pass behind someone seated or standing along that side without making physical contact.

Whitmore testified that, shortly after she returned from training, she was in the break room talking to Vandervort.  She was standing at the sink, rinsing out her cup, when she felt something rubbing against her buttocks.  She turned her head and saw it was Grievant, rubbing his buttocks against hers.  She asked, “What the f--- are you doing?”  He responded by laughing.  She testified there was no logical place for him to be going at that end of the room.  Other than Vandervort, no one else was present.  She believed the event occurred in early December 1995.  MacWilliamson’s November 30 interview notes include this allegation; those notes indicate the event occurred while Whitmore was at the sink rinsing out a cup.

Vandervort testified Whitmore was at the end of the table, coming from the lockers.  Grievant came in, on his way to the lockers.  According to Vandervort, Grievant turned his back to Whitmore and pressed her into the table, leaning backward and bending her almost flat on the table.^[4]  Whitmore told him, “Jose, stop it,” and appeared surprised.  He laughed and pulled away from her, rubbing his buttocks on hers as he did so.  He then continued to the lockers.  Vandervort placed this incident toward the beginning of December.  She testified no one else was present.  A written statement Vandervort prepared in mid-December recounts the same incident, as do MacWilliamson’s November 30 interview notes.  Both indicate the event occurred while Grievant was walking to his locker.

Davis testified she was in the break room once with Whitmore, Vandervort, Curry, and Grievant.  Grievant was rinsing a cup at the sink, and Whitmore was bending down to get something from the refrigerator.  When Grievant finished at the sink, he brushed by Whitmore back to back, almost certainly brushing buttocks briefly.  According to Davis, there was nothing inappropriate about the contact.  MacWilliamson interviewed Davis on December 7 and again by telephone on December 11.  The event appears only in her December 11 notes.  Those notes indicate Davis later informed Grievant that Whitmore had thought he touched her, and that Grievant denied it but said he was sorry if she thought he did.

Watts testified she was in the break room once when Grievant squeezed by Whitmore to get to the coffee pot.  At the time, Whitmore was leaning to get something from the refrigerator.  Grievant did not linger, and no words were spoken.

Grievant testified he never intentionally pressed his buttocks against any employee, including Whitmore.  He acknowledged it would be inappropriate to do so.  He denied ever pushing Whitmore against a table.  He has passed Whitmore in the break room many times.  He had no recollection of any incident in which Whitmore was leaning into the refrigerator.  In late September or early October, he heard rumors that he had been touching other employees’ but­tocks.  At a staff meeting, he mentioned the rumor and asked that anyone who had something to say go ahead and say it, and otherwise to stop talking about him.

THE JEANS INCIDENT

Several employees testified to the jeans incident, although their recollection of the date, day of the week, and time of day differed. Whitmore, Reeves, and Latimer believed it was in early December, at the start of a shift on a Wednesday.  Grievant and Watts believed it was at a morning break, and Watts further believed it occurred on a Friday.  The incident is reflected in MacWilliamson’s November 30 notes from interviewing Whitmore and Reeves and, as noted above, in McGuire’s memo recounting the genesis of the investigation.  November 22 and 29, 1995, were both Wednesdays.

By all accounts, on one occasion, Grievant came to work wearing jeans and a sweater instead of his usual slacks, shirt and tie.  Whitmore testified that, as employees were getting ready for a routine Wednesday morning meeting at the start of the shift, she commented on his casual attire. In response, he raised his hand, grabbed his belt buckle, and said something to the effect of “Do you want it?  I know you want it.”  She testified he called her “Baby” in this incident.  Whitmore looked at Reeves.  Reeves commented he must have other pants on underneath, and asked if he grabbed for his zipper.  Whitmore responded he had only grabbed for his belt.

Reeves testified the event began when employees commented Grievant looked good in “civvy clothes.”  She did not hear all of Grievant’s response, because she was talking to Whitmore and Grievant was mumbling.  She heard the word “Baby” and some reference to “it.”  Whitmore said, “My goodness, he’s taking off his pants.”  Reeves commented she had to be kidding, then looked and saw Grievant had pulled up the front of his sweater and was unbuckling his belt.  She said Grievant must have other pants on underneath.  Whitmore responded he did not.  Reeves commented, “I don’t need this, I’m getting out of here.”  By this time, Grievant had fully unzipped his pants and was starting to push them downward.  Reeves testified she went directly to McGuire and told her she would not put up with that behavior. A written statement prepared by Reeves at the end of December recounts most of this incident, but does not mention seeing Grievant’s pants unzipped or seeing him starting to push them downward.  MacWilliamson’s November 30 interview notes indicate Reeves reported Grievant began unbuckling his belt buckle and started to unzip his pants.

Latimer testified the jeans incident occurred in the morning before work, as they were getting ready for a Wednesday morning meeting.  Whitmore made a series of comments about Grievant’s jeans, in a teasing vein.  He finally put his hands on his belt and asked, “Do you want them?”  Latimer testified Whitmore responded, “No, Jose, I don’t want your jeans.”  She testified Grievant did not ask if Whitmore “wanted some” or suggest she “wanted it.”  He did not put his hands on his zipper or unzip his pants.

Watts testified the jeans incident occurred on a Friday, an agreed-upon “casual day.”  According to her, Whitmore made several comments throughout the morning about Grievant’s jeans.  At the morning break, Whitmore commented again that she liked his jeans.  In response, he asked if she wanted them, and touched the top of his jeans; he did not touch his belt buckle or his zipper.  Reeves said, “Oh, I don’t need this,” and left.  According to Watts, Grievant was more exasperated than amused, and everyone was tired of hearing about the jeans.  She did not hear Grievant suggest Whitmore “wanted some” or “wanted it.”

Grievant testified the incident occurred a few days after a Wednesday meeting in which the team had agreed to relax the dress code in the office.  His recollection was that Whitmore expressed surprise at seeing him in jeans and commented he looked good in them; he, in turn, reminded her of the team’s decision.  He testified Whitmore continued to comment on his jeans all day.  He testified Whitmore was in the break room when he came in to go to the lockers.  She commented on his jeans again, and he asked whether she wanted them.  He denied unbuckling his belt, unzipping his pants, or suggesting she “wanted some” or “wanted it.”  He testified Whitmore continued to tease him about his jeans after this exchange.  He acknowledged it would be inappropriate to unzip his pants or to suggest that a co-worker “wanted some” while touching his pants.

THE “TROUBLEMAKER” ALLEGATION

Whitmore testified she encountered Grievant as she left McGuire’s office, after the meeting that led to the investigation in this case.  She testified Grievant asked, “Are you making trouble for me?”  She reported that comment to MacWilliamson when she was interviewed on November 30.

Grievant testified he saw Whitmore near McGuire’s office, and may have called her a troublemaker that day.  However, he testified the term was a common joke in the office.  According to Grievant, there had been an emphasis on having the team resolve problems themselves rather than go to McGuire.  He testified several of his co-workers, including Whitmore, began jokingly accusing one another of being a “trouble­maker” whenever they talked to McGuire or her assistant.

RUBBING AND TOUCHING  INCIDENTS

Whitmore testified Grievant would rub against her as he passed by or massage her shoulders.  He would also stand very close behind her as she worked, so that when she stepped back she would make contact with him before she realized he was there.  She testified the issue was not whether the touch was friendly; it was that he had no reason to touch her.  She testified she did not like being touched, but said nothing to him because she was new.  Whitmore testified Grievant also massaged Reeves’ arm and shoulder.  She did not see other employees massaging one another.

McGuire testified she witnessed part of one exchange between Grievant and Whitmore.  She recalled walking past the counter as Whitmore was telling Grievant her concerns about his customer service.  As Whitmore talked, Grievant put his hand on her cheek and caressed it, smiling at her.  Whitmore told him to stop it.  He removed his hand from her cheek, and she continued talking.  Whitmore testified to this incident as well, but testified she did not respond to the gesture.  Reference to the event appears in MacWilliamson’s November 30 interview notes of Whitmore and McGuire.

Reeves testified Grievant often came into the dealer center to get coffee.  As he walked behind her, he would run his hands across her back or press against her.  She testified he engaged in the same conduct in the break room.  She testified that, although space was tight, more portly employees were able to pass behind her without touching her.  She testified she initially ignored the contacts; however, she eventually began telling Grievant to quit touching her.  When she did so, he would laugh, in a manner she characterized as almost a snicker.  She testified the touching stopped only when she began avoiding Grievant by leaving the room or refusing to enter it if he was there.

Reeves testified that, at times when he touched her, Grievant said something half in English and half in Spanish.  When she asked him to repeat what he had just said, he would snicker and refuse to repeat it.  Reeves testified she did not report the rubbing incidents to anyone at first, and she was unaware others were experiencing similar events until Whitmore mentioned it during a cigarette break.

MacWilliamson’s November 30 interview notes indicate Reeves complained Grievant had “crossed the line” 2-3 weeks earlier, after Reeves became a limited duration employee.  The notes indicate Grievant pushed his chair against Reeves and ran his hands down her back.  The notes further indicate Reeves told Grievant to leave her alone and began avoiding him, and that he had done nothing to her since.

Reeves provided a written statement on December 27.  In it, she commented there was room in the lunch room to walk around chairs.  She complained there was “no need” for Grievant to “pretend he had to squeeze by + rub up against the back of chairs + rub our backs or put his hands over our shoulders [sic].”  She also complained he accompanied this conduct with “some kind of remark that you could not understand [sic] + left you with the impression he was laughing at you not with you like he had a secret.”

Employee Paul Rich testified he and Grievant might greet one another with a pat on the shoulder or a “high five.”  He did not see Grievant touch Whitmore, nor did he hear any complaints about inappropriate touching.  Watts also recalled Grievant patting her shoulder in greeting, doing the same with Rich, and giving Rich a “high five.”  She testified being patted on the shoulder did not bother her.

Grievant denied ever running his hands down anyone’s back.  He acknowledged he would squeeze or pat a shoulder or arm as a friendly gesture.  In particular, he identified Rich, Dooley, Watts, Davis, Latimer, and some of the St. Vincent’s temporaries in the dealer center as people who used physical gestures to greet one another.  He denied touching or patting anyone’s cheek, and particularly denied doing so to Whitmore.  He denied ever touching or pressing against Reeves.  He testified Reeves did not talk to him about any discomfort she felt about his conduct toward her.  He testified no one ever asked him to stop touching them or others, or suggested the way he was touching them was inappropriate.  In particular, he testified Whitmore never asked him to stop touching her or told him to “knock it off.”

Grievant testified he never spoke to anyone at work half in Spanish and half in English.  He testified he did sometimes speak Spanish to Latimer and read Spanish newspapers with her, because she was taking Spanish.  He testified Reeves never asked him to repeat what he said.  Other employees sometimes asked him to repeat things they did not understand, and he always complied.

Grievant testified the only person he ever saw massage anyone was Dooley.  Davis testified Dooley once offered to give her a shoulder massage.  When Davis declined the offer, Dooley desisted.  Reeves did not recall seeing Dooley massage others.  She did recall Dooley engaging in other attention-getting maneuvers and spending a lot of time away from her work.  She testified giving massages would be consistent with Dooley’s behavior.

OTHER EVENTS

According to Whitmore, Grievant began tossing paperclips at her and making comments to her shortly after her arrival.  She testified she did not respond initially because she was new and did not want to make waves.  As the behavior continued, she told Grievant he was going to have to stop making comments or she would have to file a sexual harassment suit against him.  Nonetheless, he continued in the same vein.

Reeves testified Grievant would come into the dealer center on his break and throw such items as paper clips, wads of paper, and rubber bands at them.  When she told him to stop, he would laugh and continue the behavior.  She began telling him to leave the room after getting his coffee, and finally told him he could no longer come into the dealer center.

Davis testified she and Grievant threw paper clips at one another, and that Grievant also threw paper clips at Gayle Watts.  She characterized it as kidding around and a way to get attention.  She did not tell Grievant to stop throwing paper clips, nor did she hear other employees do so.

Grievant testified he and Whitmore commonly greeted one another with the term “Baby” as a joke.  Whitmore testified Grievant used that term toward her, but denied calling him “Baby.”  Masengale’s notes of an interview with Whitmore indicated Grievant would say, “good morning baby,” and Whitmore would reply, “hey baby.”  Whitmore’s written statement, prepared December 21, 1995, notes:

As I told the genlteman [sic] from the Union, [Grievant] and I would say “flirtatious” things to each other, but I feel the touching was a bit too much.

McGuire testified that, on one occasion, she scheduled Latimer to work next to Grievant.  According to McGuire, Latimer asked not to be scheduled next to him again because it made her feel uncomfortable.  She did not say why this was so, and McGuire did not inquire.  Latimer testified that, within Grievant’s last two or three months, she commented to McGuire that Grievant sometimes talked in a low voice, and she thought it was kind of funny he did that.  She denied saying she was uncomfortable working next to him.

PRIOR DISCIPLINE^[5]

On May 29, 1993, Grievant received a verbal warning for “inappropriate actions towards a co-worker.”  No grievance was filed over this warning.

The Department suspended Grievant for one week effective July 20, 1993.  The specific charges underlying this action involved two encounters with a fellow employee named Ray.  In one, Grievant was charged with engaging in persistent, negative questioning that made Ray feel uncomfortable, and leaving the counter to stand closer to him in an intimidating manner.  In the other, Grievant was charged with offering change to Ray, then pushing Ray’s hand away so he could not take it; following Ray to the counter and repeatedly turning his stool away from a customer; threatening physical harm to Ray; and physically restraining Ray from using the telephone.  In the latter incident, Grievant was also charged with saying he “didn’t give a damn about the customers” and with blocking a co-worker who attempted to intervene.

In addition to the specific charges, the suspension letter summarized prior counseling regarding various forms of unacceptable behavior.  The letter summarized those behaviors as follows:

intentional brushing up against co-workers; aggressive, unwelcomed touching of co-workers; talking to co-workers in an intimidating, hostile, and offensive manner; blocking the way so that co-workers must walk around you; threatening to slap your supervisor; and refusing to help co-workers when asked.

The suspension letter admonished Grievant to refrain from “rude, discourteous, intimidating, or inappropriate touching or comments toward customers, co-workers, or supervisors.”  It was characterized as a “final warn­ing” and concluded, “If you do not change your inappropriate behaviors you will be terminated.”  No grievance was filed over this suspension.

Grievant was suspended for one month without pay, effective February 25, 1994, based on three charges.  The first was that he had been rude and made comments insulting to the intelligence of a title clerk from a car dealer.  The second was that he destroyed the front of a cabinet by ripping the cross-board off a locked drawer instead of using a spare key to open the drawer.  The third was that he moved too quickly through the numbering sequence for waiting customers; implied the written test would be given, then told the customer it was too late to take the test (without advising the customer that she could take the test as long as she was finished by 5:00), and asked inappropriate questions about studying for the test.

The suspension letter admonished Grievant regarding treating others with courtesy and respect, as well as damaging state property.  The letter was characterized as a final warning, and again warned that Grievant would be terminated if he did not change his “inappropriate behavior.”

The 1994 suspension initially was processed as a pre-dismissal.  As part of a negotiated non-precedential settlement, it was reduced to a one-month suspension, with the remainder of his time off work to be considered leave without pay.  The settlement also included a transfer to Northeast starting in November 1994.  Grievant also agreed to complete five counseling sessions focused on improving his com­mu­nication and cooperation skills in the workplace.  He completed those sessions by March 15, 1995.

OTHER NOTICE OF STANDARDS OF BEHAVIOR

NOTICE WITHIN THREE YEARS BEFORE GRIEVANT’S DISCHARGE

In February 1995, Northeast held “safety net” training, intended to encourage cooperative teamwork within the workplace.  As part of that training, employees jointly developed written expectations.  One of the written expectations was to “maintain professional relationships at work, regardless of personal differences.”  A new position description for Grievant, developed around that time, also included an expectation of “participative decision making and cooperative interactions among employees.”

On December 5, 1994, Grievant signed a copy of the “Rules of Conduct.”  Those rules included admonitions to “Be courteous, pleasant and conscientious in the performance of your duties;” “Work in harmony with fellow employees;” and  “Conduct yourself, on and off duty, in a manner that will reflect favorably on yourself and the Motor Vehicle Division.”

Grievant’s May 1993 evaluation included cryptic comments about Grievant’s “negative encounters” with four of his fellow employees.  It commented there had been no inter-staff incidents in the office that did not involve Grievant.  It concluded that, “As long as the negative encounters with co-workers do not occur, [Grievant] is a helpful addition to this office.”

NOTICE MORE THAN THREE YEARS BEFORE GRIEVANT’S DISCHARGE

On November 12, 1992, Dan Dlugonski, who was then Manager of the Forest Hills office, co-authored with Region Manager Jay Bosse a memo to Grievant regarding “Expectations.”  The memo referred to “recent incidents involving interpersonal relationships between you and other members of the Forest Grove office staff.”  It reiterated the following expectations from the “Rules of Conduct”:

... all employees will work in harmony with their fellow employees.  This means that each employee will treat all other employees, including subordinates, peers, and superiors, with respect at all times.  Treating other employees in a manner that intimidates, belittles, embarrasses, or in any other way causes them to be uncomfortable, will not be tolerated.

The memo warned of discipline “up to and including dismissal” for breach of its expectations.  Dlugonski testified this memo followed employee expressions of concern involving physical blocking, some physical contact, and some perceived lack of respect.  Dlugonski testified one incident involved Grievant tossing paperclips at a co-worker.  When Dlugonski asked Grievant about the paperclips, Grievant said he intended to be humorous.  Dlugonski informed him the co-worker found it irritating, and Grievant agreed to stop.

A June 1992 evaluation did not mention concerns over inter-personal relations.  The evaluation com­mented approvingly on Grievant’s help with Hispanic customers and his community activities.  It noted his

biggest challenge is in helping staff teamwork and morale.  Since we are a small staff usually operating under significant customer demand, teamwork and a good sense of humor are important to working in this office. [Grievant’s] awareness of helping more than the customer in front of him has increased over the past three months.

On August 9, 1991, Poole, who was then Manager of the Forest Hills office, notified Grievant of a sexual harassment complaint from a female customer.  The customer felt Grievant asked probing personal questions unrelated to the purpose of her visit and made lingering eye contact.  Poole testified he could not sustain the claims, so he focused his efforts on explaining the nature and potential consequences of the complaint.  In a meeting with Grievant and a follow-up memo, he asked Grievant to “evaluate your conduct toward all customers, especially female, to ensure that your behavior is professional and above reproach.”

Poole testified another of the customer’s concerns was Grievant’s use of a soft voice.  Co-workers who spoke to Grievant on the phone also mentioned to Poole that Grievant spoke very softly, so they had trouble understanding him.  Poole testified he discussed with Grievant whether he should speak more loudly.^[6]

On February 27, 1991, field employees, including Grievant, received a memo discussing recent incidents in which other employees received severe discipline.  Attached to the memo were the Department’s Rules of Conduct and the Code of Ethics for Oregon Driver Examiners.  The memo included the following admonishments regarding workplace behavior:

Racist or sexist remarks are offensive and out of place in the work place, if not out of place in the world.  As our customers become more culturally diverse and we increase our multi-cultural work force, the sensitivity to our workplace atmosphere becomes even more important.  Accordingly, I assure you that racist and sexist remarks will result in discipline.

Grievant testified he heard no complaints from female co-workers in Forest Grove.  He testified he received no counseling regarding inappropriate touching or comments to females in Forest Grove.

OFFICE RUMORS ABOUT GRIEVANT

McGuire testified it was common knowledge Grievant had been transferred from Forest Grove as a result of a settlement.  She testified it struck her as odd that someone with employment problems would be transferred into an office with personnel problems, such as Northeast had.  She had heard rumors about Grievant’s problems at Forest Grove.  She had heard he hit or threatened to hit a manager, and that he threw paper on the floor for others to pick up.

Latimer testified she had heard rumors about Grievant before his arrival at Northeast.  She had heard he was charged with improper conduct at Forest Grove, but got no specifics.  Davis testified McGuire told her Grievant had gotten in trouble in Forest Grove for throwing paper and throwing things on the floor, and that a woman had left her job.  The next day, McGuire told her she had not meant to tell her that, and had not meant to imply the woman left her job because of Grievant.

Watts testified Curry and another employee (now deceased) told her Grievant had been fired in Forest Grove for being a troublemaker.  She quoted Curry as saying “We don’t need his kind here.”

Rich testified the prior Office Leader, Maggie Robles, told him Grievant was coming from Forest Grove, and that he had some personnel problems there.

GRIEVANT’S WORK PERFORMANCE

By all accounts, Grievant was a productive worker.  McGuire testified he had one of the highest document counts in the office (referring to the number of transactions processed).  He participated actively in the team meetings, offering suggestions and comments.  He received extra pay for using his bilingual skills to assist with Spanish-language concerns.

During the investigation, four employees (Rich, Watts, Davis, and Latimer) signed a petition on Grievant’s behalf.  The petition praised Grievant’s technical skills and his interactions with customers and co-workers.  Watts also wrote a letter to Masengale on Grievant’s behalf, praising his helpfulness and competence.

Grievant initially received monthly evaluations after moving to the Division in 1989.  Each of the monthly evaluations in evidence found he met or exceeded expectations regarding “Maintains harmonious working relationships with other employees” and “Maintains courteous and pleasant attitude in dealing with the public.”  In an evaluation dated April 7, 1989, Supervisor Harley Poole wrote Grievant “has an excellent personality for this job which helps him to work well with fellow employees and to serve the public.”  A June 1991 merit rating report commented approvingly on Grievant’s work in helping both the police and the Division improve relationships with the Hispanic community, and described him as “an exceptional representative of the State and DMV.”  Concerns over inter-personal relations began to be raised only later.

     POSITION OF THE STATE

This is a classic progressive discipline case.  With the kind of deficiency involved here, it is not unusual for an employee to work without problems at first.  As Grievant established relationships and got to know other people in Forest Grove, problems began to arise.  The Department dealt with those problems, initially with counseling and entries in his performance evaluations.  These early documents establish that the issues involved here were already beginning to develop.  Grievant received further notice from the 1992 memo of expectations that such behaviors would not be tolerated.  The May 1993 evaluation repeated the concern over the impact on office morale from Grievant’s behavior.  This is a traditional mechanism to help Grievant understand he was not working well with his peers.

Grievant had another incident very close to the time he received the May 1993 evaluation.  He had a major conflict in early July 1993, and engaged in behaviors he had been specifically warned to avoid.  As a result, in July 1993, he had received a one-week suspension, which is very serious discipline.  The suspension notice gave very specific notice of the kinds of behaviors that the Department found troublesome.  Those behaviors included brushing, unwelcome touching, talking in an offensive manner, blocking an employee’s way, threatening to slap a supervisor, and refusing to help co-workers.  This was further notice of expectations and a warning of possible termination if the behavior continued.  Since he did not grieve the discipline, it must be accepted as valid.  Some of the same  issues came up again in this case.

In November 1993, Grievant again showed serious problems in his interactions at work.  This time, the focus was primarily on his interactions with customers rather than co-workers.  The negotiated settlement from the initial dismissal demonstrated the Department’s willingness to give Grievant another chance to conform his behavior to expectations.  The facts underlying this negotiated settlement cannot be disputed.  Grievant received a final warning, further notice of expectations, and a threat of termination if he did not meet those expectations.

The November 1993 incident took Grievant out of the workplace for a year, so there were no incidents in that time.  To give him another chance, the Department was willing to send Grievant to counseling and transfer him to another office.  Upon his arrival at Northeast, he received notice of the team-oriented environment and the need to establish productive relationships at work.  He worked without incident for eight or nine months.  This period is not surprising in view of the counseling he had received and the nature of the behaviors.

If one eliminates the year Grievant was off work due to the suspension, there is a smooth progression from his second final warning to the discharge.  Although no complaint was made until November 1995, the events that led to his discharge began several months before his discharge, in September or October.

Both of the principal complainants began work in the summer of 1995 as temporary employees.  It is not surprising some other employees were unaware of the incidents, or that they disagree on some details.  Employees had other things to do.  Whitmore and Reeves were the least involved in the office.  Both had just started, and Reeves worked in a separate part of the office doing separate work.  No evidence exists that they had any reason to collude to make up allegations against Grievant, or that they did so.

Whitmore did not complaint to McGuire; instead, she made a passing comment.  Her reports of the incidents have been consistent throughout this case.  She admittedly liked Grievant and permitted him to give her rides home.  If she was going to concoct false allegations of improper conduct, she would have done so about those rides.  She has consistently said she did not want to get Grievant in trouble.  That is typical where an employee reports misconduct and management does what it must do.  It is typical for witnesses to be uncomfortable in testifying.  Whitmore’s discomfort is no indicator of untruthfulness.

The incidents reported by Whitmore were consistent with Grievant’s problems in Forest Grove.  Most of the incidents had to do with touching.  Although grabbing or slapping a hand is a different kind of touching, the message Grievant received was that he should keep his hands off co-workers.  It does not matter whether the touch is overly familiar, as in this case, or hostile, as in Forest Grove.  Engaging in unwelcome touching is a form of domination.  The fact that some employees might find it acceptable to have Grievant touch their arm or shoulder did not mean other employees would find it acceptable to have him rub their shoulder or back.  That is not the same kind of touch.  The throwing of paperclips and other items was another form of domination.  Although some people might not mind having such items thrown, Reeves had asked Grievant to stop.  Continuing in those cir­cum­stances was not a friendly gesture.

It is undisputed that Grievant made some comment about his jeans and some gesture.  Whitmore and Grievant were the most involved in that conversation; they were the ones paying attention.  Other employees were peripheral to the event.  The people most likely to recall what was said were the people involved in the conversation, not others who were standing around and not paying attention.  Reeves has consistently described what she saw, which motivated her to leave the room.  The differences in recollection are typical of a spontaneous event such as this.  It is a minor point whether Grievant used the term “Baby” in this exchange.  Whitmore reported the comment at the outset, closer in time to the actual event.

The evidence supports the claim that Grievant called Whitmore a “troublemaker” in response to her discussion with Whitmore.  Grievant had reason to know the interview concerned him.  McGuire had talked to Curry, Vandervort, and Whitmore.  He left the workplace shortly thereafter due to “stress” from the in­vesti­gation.  In the context of a complaint to higher authority, his use of the term “troublemaker” has more significance than it would have as an ordinary workplace comment.

Other witnesses corroborated portions of the reports from Whitmore and Reeves.  McGuire saw the cheek patting incident.  Vandervort corroborated the buttocks-rubbing incident, and Davis saw something similar.  This was not an inadvertent contact.  This was consistent with Reeves’ report that Grievant brushed her in circumstances where other employees could pass without touching.  Grievant used these events as an opportunity to make physical contact.   Employees did not report having had similar contacts with others.  The Arbitrator should discredit the claim that Dooley was giving backrubs.  When MacWilliamson inter­viewed employees, none of them reported such conduct.

When behavior is repeated, it is difficult to identify the dates of specific events.  Employees tend not to know what to make of the behavior initially, then eventually fit it into a pattern; what they remember is the pattern.  It is also common not to bring matters to management’s attention until a pattern has been iden­ti­fied.  Until then, employees do not recognize the pattern, or consider other explanations for the behavior.

McGuire was not a member of management and had no business investigating the case.  If she had investigated the case, the Union would have had grounds for complaint.  It is irrelevant whether she disliked Grievant or did not want to work with him.  She gathered enough information to report to management, which conducted the investigation.  MacWilliamson talked to appropriate witnesses.  Masengale later followed up with more interviews, including witnesses who had not been available for the first interviews.  The State did not rely on Curry’s hearsay comments; it talked to the identified recipients of the behavior.  By the time of the investigation, Dooley was gone.  An interview of her would not have changed the result.

Grievant received the substance of the charges against him in his December 6 interview.  He denied everything except the paperclip throwing, then claimed to have apologized for his behavior.  There was only one time when Grievant allegedly wore jeans to work and grabbed at his belt buckle.  Grievant had enough information to know what event that was.  He could have done more than denied this incident; he could have offered information about the only incident he was aware of.

The December 6 interview of Grievant was a delicate matter.  The Department had to avoid prompt­ing retaliation at an early stage when the investigation might not result in any formal charges against him.  Withholding the identity of the complainants was done as much to protect Grievant from himself as to protect the complainants.  Employees’ names and written statements were provided to the Union later in the process.  The Union knew Whitmore was the primary complainant, and contacted her early in the investigation.

The Union confuses the issue of Grievant’s accent and soft tone of voice.  The alleged difficulty in understanding what Grievant says does not get him off the hook.  Latimer’s request not to work next to Grievant was a legitimate matter to raise in this hearing. 

The object of Grievant’s misconduct were temporary employees, who could be fired for any reason.  Rather than direct his behavior toward permanent employees, he selected the most vulnerable employees.  The only other employee identified as engaging in any similar behavior was another temporary employee, Dooley.  It was inappropriate for Grievant to model his conduct on her.  He should have conformed his behavior to the expectations laid out for him in prior discipline.  He was placed on notice that he should keep his hands off others because they did not like such contact--in this context or that in Forest Grove.

The Department gave Grievant notice of its expectations, progressive discipline, and one more chance to work without these kinds of concerns and interactions.  Nonetheless, these behaviors continued.  The Department had good reason to believe the complaints it received.  But for the past behavior and progressive discipline, discharge might not have occurred.  However, just cause existed for discharge.

Grievant was not a good employee.  He was an employee who had been terminated, then brought back to work with a final warning.  It was unnecessary to give him notice not to engage in each new type of misbehavior before he could be disciplined.  It was unnecessary to wait until he had offended each em­ployee in the workplace before taking action.  Grievant had offended two employees; one would have been enough.

The early disciplinary notices were properly retained in the file, because they were referenced in later discipline.  Had there been no further disciplinary incidents after 1991, they would have been removed.  They were referred to repeatedly as Grievant engaged in more behaviors.  It was unnecessary for the Department to tell Grievant again not to engage in such behaviors.  It had given him notice in prior discipline and tried to work with him.

     POSITION OF THE UNION

The State did not meet its burden of demonstrating that the charged events actually happened.  It also did not conduct a proper investigation.  Grievant was not given specific information about the accusations, and not all the possible witnesses were interviewed.  Moreover, the State has not shown that it administered progressive discipline.

It is undisputed that Grievant touched employees of both genders on the arm or shoulder as a friendly gesture.  He never received any indication that such actions were unwelcome.  Whitmore admitted she had a friendly relationship with Grievant.  Reeves did not dispute Grievant’s testimony that, until near the end, he also had a friendly relationship with her.  Reeves gave no clear testimony that Grievant rubbed against her.  Although she asked him to stop throwing paperclips, she did not complain about his touching her until all of the allegations in this case were collapsed together.

The discharge letter gives the impression that multiple female employees asked Grievant not to touch them.  The written statements discussed one incident in which Grievant allegedly pushed his chair against Reeves and ran his hand down her back, and allegations regarding squeezing by in the lunchroom with no specific allegation that he touched Reeves.  There is no evidence that Reeves told Grievant to stop doing anything other than throwing paper clips.  Any physical contact must be understood in the context of the friendly relationships in this office.  Unless Grievant was told such contact was unwelcome, he had no way to know.  Whitmore testified she never said anything to Grievant about his touching her back or shoulder.  No evidence exists that anyone ever told Grievant it made them uncomfortable for him to stand close to them.  The discharge letter tracks Curry’s hearsay claim that Whitmore told Grievant to stop.

The only alleged instance of touching a co-worker’s face allegedly involved Whitmore.  Grievant denies this incident.  The evidence in support of the charge includes the information that Whitmore told Grievant to stop.  No evidence exists that he touched her face again.

No one other than Whitmore heard the alleged “spanking” comment, and Grievant denies it.  Whitmore’s initial statement did not mention this allegation.  Given this inconsistency, the lack of corroboration, and Grievant’s denial, this allegation should be rejected.  The more convincing evidence is that Dooley used this term jokingly.  Even if the event occurred as Whitmore alleged, it was an isolated incident which was understandable within a teasing, friendly relationship.

The buttocks-rubbing incident demonstrates the problem with this case.  Whitmore and Vandervort gave very different accounts of the event, and Grievant denies it.  Vandervort’s statement suggests a degree of exaggeration and is inconsistent with Whitmore’s statement.  Whitmore’s statement could not have been describing an incident in which she was forced into a table.  Her description of her comment to Grievant is also inconsistent with Vandervort’s.  It is more likely that any contact was the incidental contact in squeezing by to which Grievant, Watts, and Davis testified.  The Department’s view of the incident was colored by Curry’s hearsay description.

The Department’s witnesses gave vastly differing accounts of the jeans incident.  No one talked to Grievant or other witnesses, such as Watts and Latimer.  When Grievant was asked about one version of this event in his interview, he was not given the time, place, or persons present.  He therefore could only deny the event.  Later, when he learned more information about the incident, he was able to recall what actually happened.  As the Union’s witnesses corroborate, Grievant did not unbuckle his belt or unzip his pants, and he did not make the comment alleged.  Instead, he put his hands to waist and asked “Do you want them?”  Grievant has a heavy accent, and can be difficult to understand.  Some witnesses could have thought he said something different from what he said.  Whitmore did not testify that Grievant said, “I know you want some, Baby.”  The State’s witnesses do not agree on what he did say.  Therefore, that part of the charges must be rejected.  In any event, his comment occurred in the context of a teasing, friendly relationship.  Whitmore continued to tease him about his jeans that day.  If she had believed he said something inappropriate, she would not have continued to joke about the jeans.

The “troublemaker” allegation should be rejected.  Grievant had no reason to know Whitmore and other employees had met with McGuire about him.  His joking comment to her should be seen in light of the safety net training and team building efforts.  He did not know she was coming from McGuire’s office, and he was not informed of the investigation until later.  The fact that he knew in early December that something was going on does not mean he knew what the charges were.  His comment therefore could not have been retaliation.

The paper clip-tossing allegation should be rejected.  Reeves did not mention it in her written statement; it came up only later in the investigation.  There is no dispute that some employees, including some in the dealer center, playfully tossed paper clips at one another.  This is not a serious dischargeable offense.  The claim was added in by Reeves after she stopped being friendly to Grievant.

Whitmore gave inconsistent statements about touching, bantering, and sexual innuendos.  There is con­siderable evidence they joked around and teased one another.  From Grievant’s perspective, the relationship was friendly.  Other employees heard Whitmore tell Grievant to “cut it out,” but that could be serious or goofing around.  Whitmore denies saying anything to Grievant.  Given the inconsistencies, the evi­dence does not support the charge of repeated inappropriate touching despite notice the touch was unwelcome.

Whitmore was obviously uncomfortable in testifying, and said events were blown out of proportion.  If the events actually occurred as she indicated, she had no reason to be uncomfortable testifying.  Her discomfort could be the result of the inconsistencies or being at the hearing.

It was well known in the office that Grievant transferred in because of prior difficulties.  Some of his co-workers would not give him a chance because of his problems and their difficulty in understanding him.  Reeves assumed he was saying bad things because she could not understand him.  In contrast, Latimer worked with him.  McGuire admitted she did not like him and did not get his side of the story.  Management did not give him a chance, and took the opportunity to discharge him.

Reeves’ testimony must be evaluated in light of the clear dislike for Grievant she has developed.  Until that change in attitude, she and Grievant had a friendly joking relationship.  McGuire did not like Grievant and would not tell him he was under investigation at first.  When he called in sick due to stress, MacWilliamson wrote a memo suggesting he was abusing sick leave.  MacWilliamson distorted Grievant’s account of the meeting in which Grievant asked employees to talk to him about rumors of inappropriate touching.  She referred to him as a “perpetrator” before ever talking to him.

The Department has engaged in a smear attempt with McGuire’s testimony that Latimer was uncomfortable working with Grievant.  The Arbitrator should credit Latimer’s explanation that Grievant speaks softly and is hard to understand, but that she never indicated she did not want to work with him.

The investigation in this case was not conducted to determine what happened.  It was conducted to get stories from some employees to support the discharge of someone the Department wanted to discharge.  Management was not interested in getting stories that would cast serious doubt on the allegations.  The incidents in the discharge letter were pulled together in an attempt to get rid of Grievant. 

The investigation was flawed.  McGuire did not follow up on Whitmore’s off-hand comment until after talking to Curry and Vandervort.  She did not talk to Grievant or other witnesses.  Later investigators heard from only some of the witnesses to events.  Eventually, Watts, Davis, and Latimer were talked to, but only on general matters rather than the specific allegations.  Although Dooley was identified as a possible witness, no effort was made to track her down to determine whether she had any information.  The Union therefore was unable to bring her in as a witness.  Grievant did not model his behavior on Dooley; the only point is that the Department did not try to contact her.

Grievant did not get all the allegations in his interview, nor were copies of the investigative notes or complaints provided.  Grievant could only deny the allegations because he had no specifics.  The Union could not have done anything to rebut these allegations prior to the dismissal, because it did not have names, dates, or specific events.  Grievant had a right to the specifics and the chance to respond in the investigation, not just at arbitration.

Not all of the evidence was disclosed to the Union prior to this hearing.  McGuire’s memo was disclosed only after Ward admitted such a memo existed.  If the discharge was reasonable, the State should have had nothing to hide.

The Department relied on improper evidence.  The 1991 complaint was not substantiated, and should not have been in Grievant’s file.  The 1992 discipline should have been removed from the file under Article 19, Section 5.  Progressive discipline is not an exception to the contractual requirement to purge the files after three years.  It was not appropriate to use or consider that discipline.  In any event, the prior discipline is not relevant.  It involved conduct toward other employees, not specifically directed at female employees or bordering on sexual harassment.

The conduct with which Grievant is charged in this case was not unwelcome, and no complaints were made prior to November 28.  Grievant received no direction from a supervisor that his behavior was a problem or needed to be corrected.  Grievant was a good, productive employee, and no evidence exists that his conduct affected his productivity or that of other employees.  No effort was made to give him notice or to retain this productive employee.  Instead, the effort was made to pull together serious charges, using accounts from employees who did not like him, and with no effort to get the real story.  The Department ignored contrary evidence and refused to give Grievant and the Union details of the allegations.

Progressive discipline requires letting the employee know of the problem and giving a chance to correct it.  It was not enough for Whitmore to tell him to stop his behavior; management must know of the problem and take steps to correct it.  No employee went to management to request action to stop his conduct.  Whitmore believed that would happen, but found events were blown out of proportion.  Her discomfort with management’s response does not necessarily mean no discipline was warranted; it does show how the information was used.

If Grievant had engaged in the conduct with which he is charged, it would have been inappropriate.  He was never given a chance to respond to the charges or to correct any substantiated behavior.  There was no chance to stop the march toward discharge.  Disclosing evidence for the first time at arbitration ensured there would be no fair evaluation of the evidence prior to arbitration.  The prior discipline gave notice of expectations, but through a very different process.  Presumably, Grievant had a chance to respond to those charges, and the Union was involved.  Here, he received no specific information and no statement before his discharge that he was not conforming to standards.  The missing link here is involvement of supervision in correcting the behavior.

       OPINION

The State bears the burden of establishing just cause for discharge.  It must show, by clear and convincing evidence, both that Grievant engaged in misconduct and that discharge was within the range of reasonable penalties for that misconduct.

Given the initial report from McGuire, the State had a justified concern over Grievant’s workplace behavior.  This concern was heightened by his very serious disciplinary history.  It had not only the right, but the obligation to investigate the allegations and take reasonable steps to stop any misconduct.  ­The principles of just cause required a full and fair investiga­tion before disciplinary action could be taken.

While it is inappropriate to graft all of the judicially-recognized complexities of due process onto the arbitration process, it has long been recognized that certain basic due process rights apply in the workplace.  One such due process right is the right to be confronted with the alleged misconduct.  Omission of this step both offends the due process concern of fairness and calls into question the thoroughness of the investigation.

In this case, Grievant was not apprised of the identity of his accusers at the outset of the investigation.  However, he was given considerable details of the allegations against him in his interview--details which reasonably should have led him to identify the events.  He therefore had the opportunity to give his differing perspective of those events.  Further, by December 21, the Union had already interviewed Whitmore, the principal source of most of the allegations.  Thus, on this record, Grievant was not prejudiced by the relatively brief delay in identifying her as an accuser.

Reeves did not testify to one specific allegation--that Grievant pushed his chair against hers and ran his hand down her back.  As there was no corroboration of the hearsay report in MacWilliamson’s notes, this allegation has not been sustained.  Grievant admits the gist of the remaining allegation involving Reeves, that he threw paper clips at her.  Accordingly, it is of no moment, for purposes of this decision, when Grievant or the Union first learned Reeves was the source of these allegations.

It is irrelevant that McGuire did not get Grievant’s version of events when Whitmore’s concerns came to her attention.  She passed the issue on very quickly to management; it would have been inappropriate for a unit member to do otherwise.  Thereafter, employees were interviewed extensively, and sometimes repetitively.  The State went beyond a minimal investigation by seeking input from other employees in addition to identified witnesses to specific events.  By inquiring into the general office atmosphere as well as specific incidents, the State’s investigation made it possible to put the specific incidents into context.  Thus, the investigation was thorough and appropriate.

Under the clear language of the Agreement, records of past discipline were to be removed from Grievant’s personnel record after three years.  That does not mean, however, that the fact of such past discipline could not be considered for any purpose.  Grievant has called into question the nature and extent of the notice he received regarding what constituted appropriate workplace conduct.  All forms of notice, including prior discipline, are relevant to resolve the credibility of his testimony on the issue of notice.

The issue of notice is particularly significant because of the varying kinds of misconduct with which Grievant has been charged over the years.  Ordinarily, except where the misconduct is of a nature that any reasonable employee would know was improper,^[7] employees are entitled to notice that they have breached workplace standards and an opportunity to conform their behavior to those standards.  However, where an employee has received discipline and counseling for a succes­sion of behaviors, an employer is entitled to expect the employee to apply common sense and recognize that other behaviors, of similar gravity but differing details, are likely to be as unacceptable as those for which discipline has already been imposed.  To hold otherwise would permit an employee to continue to disrupt the workplace with no real remedy, as long as the employee was careful never to repeat exactly the same behavior.  Thus, the fact that Grievant’s prior discipline involved hostile and somewhat violent encounters did not require that the State begin at the lowest level of progressive discipline for suggestive and overly-familiar encounters.

Before turning to the specific incidents alleged in the discharge letter, the Arbitrator notes that the propriety of the alleged misconduct here is dependent on context.  Any physical contact could be a friendly touch or an unwelcome battery, depending on the relationship between the participants.  Similarly, a raucous comment could be a joke or verbal harassment.  However, context provides only limited shelter from disci­pline.  The workplace is not a playground.  Where an employee chooses to make physical contact or make comments beyond those required by the job, s/he must take care to respect other employ­ees’ personal dignity.  The more forward the behavior, the greater the burden on the employee to do a “reality check” and desist at the slightest hint that the behavior is unwelcome or unexpected.

Turning to the specific allegations against Grievant, Whitmore credibly testified to the incident in which Grievant asked to spank her.  Grievant’s denial of the comment was not convincing, nor does this allegation tie into his description of Dooley’s somewhat different comments.  However, by Whitmore’s account, she concluded the comment was a joke and shared a laugh with Grievant over the incident.  Thus, at the time it occurred, the conduct was not unwelcome.  In this context, it therefore did not constitute misconduct.

Whitmore credibly testified that Grievant stood closely behind her while she worked and rubbed her shoulders.  The Arbitrator does not doubt that Whitmore found this conduct irritating.  However, by her own account, she said nothing.  The reasons for her silence are understandable and not uncommon, particularly for a new employee anxious to fit in.  However, in the context of a friendly and, in her words, “flirtatious” relationship, it was incumbent on her to let Grievant know when he had been too forward.  Only after such notice would continued contact demonstrate his unwillingness to comply with her wishes.  The charge that Grievant persisted despite such notice came from other employees’ reports that they had overheard Whitmore’s remarks, not from anything Whitmore herself reported at any point.  Such reports cannot stand in the face of Whitmore’s contrary first-hand testimony.  Accordingly, the State has not sustained its burden of establishing that Grievant touched Whitmore “despite ... repeated directives to stop it.”

The allegation regarding the incident in which Grievant touched Whitmore’s face does not track the evidence.  Both McGuire and Whitmore testified that Grievant touched Whitmore’s face before, not after, she told him to stop.  Whitmore testified she did not respond, and McGuire testified Grievant removed his hand when told to stop.  The contact was unnecessary and, perhaps, somewhat uncalled for.  However, by either account, he did not persist in physical contact despite a request to desist; on the contrary, he complied with the request.  The State therefore has not sustained its burden of proof as to this allegation.

The buttocks-rubbing incident is another matter.  As an initial matter, intentionally rubbing buttocks is quite an intimate contact, even among close friends.  Any employee knows, or should know, that in most workplaces, one does not expect such an intimate encounter.  It is therefore unnecessary to give notice that it is unwelcome.  Instead, an employee who initiates such a contact at work must show good reason to believe it would be welcome.  No such evidence exists here; instead, Grievant denies that the contact occurred.

The troublesome aspect of the buttocks-rubbing allegation is that even the reports close in time to the alleged event differed so greatly.^[8]  The event Whitmore described occurred at the opposite end of the room from the one Vandervort described, and in quite a different manner.  Whitmore’s account of her verbal response was also quite different from the comment Vandervort reported.

Having carefully reviewed the written reports, interview notes, and the testimony in this proceeding, the Arbitrator concludes that Vandervort witnessed an encounter in the break room that caused her concern.  However, on this record, Vandervort exaggerated the incident.  The suggestion that Whitmore would look as if she would break in two is difficult to credit.  Whitmore is relatively young and trim; no evidence exists that she is physically incapable of bending forward at the waist.  Since Grievant had his back to Whitmore, he would have shown remarkable backward flexibility in executing the maneuver Vandervort described, particularly in a manner capable of forcing Whitmore to bend forward beyond normal limits.

On this record, there is some doubt whether an incident roughly corresponding to Vandervort’s account was the same incident to which Whitmore testified.  Had Whitmore been forced to bend over the table near the lockers, it is difficult to believe she would have recalled the incident as merely feeling a rubbing against her buttocks while she stood at the sink at the other end of the room from the lockers.  It is thus concluded that any encounter that occurred did not occur in the severe manner described by Vandervort.  However, for the reasons that follow, clear and convincing evidence of misconduct does exist.

This is one of the very rare cases in which demeanor plays an important role.  Whitmore’s reluctance to cause Grievant’s discharge was quite evident throughout her testimony.  At the same time, her demeanor in describing this incident, in particular, made it obvious that she found Grievant’s conduct both very aggravating and somewhat perplexing--the latter because Grievant had been a “perfect gentleman” in potentially more compromising circumstances.  Given Whitmore’s impressive demeanor and her consistent reports of the incident, the Arbitrator cannot credit Grievant’s denial that he rubbed or brushed his buttocks against Whitmore’s.

The buttocks-rubbing incident, as credibly described by Whitmore, was not merely an incidental contact to squeezing by her.  As the more innocuous events to which the Union’s witnesses testified illustrate, Whitmore was capable of discerning when such an incidental contact occurred, and letting it go by without comment.  Her indignant response to the contact on this occasion demonstrated that she recognized it as a very different kind of contact.  Accordingly, the State has sustained its burden regarding this allegation.

No dispute exists that some exchange involving Grievant’s jeans occurred in the break room.  It is less clear when it occurred.  It had already occurred by the time McGuire talked to Whitmore on November 28; indeed, if McGuire’s written report is accurate, it happened on November 28.  However, since November 28 was a Tuesday, it could not have been in conjunction with the regular Wednesday morning meeting, despite the testimony from Whitmore, Reeves, and Latimer.  However, the timing of the incident is a minor point.

On this record, it is more likely than not that Grievant made some gesture toward his waist, but did not unbuckle his belt or unzip his pants.  Had he gone that far, one would expect that Whitmore would have recalled and reported that very troublesome conduct in her initial report to McGuire, her written statement, and/or her testimony.  She was the one most involved in the conversation, and therefore most likely to notice such outrageous behavior.  Moreover, it would have been both out of character and extraordinarily risky for him to go that far in a room full of employees waiting for a staff meeting.   It is therefore concluded that Reeves’ account exaggerated his physical conduct on this occasion.   The gesture toward his jeans, if unaccompanied by other behavior, thus would have been unobjectionable.

The closer issue is Grievant’s verbal comment on this occasion. Whitmore has consistently reported that Grievant said something along the lines of “you know you want it;” whether he used the term “Baby” in that comment is of little significance.  As the person most involved in the conversation, it is unlikely that Whitmore misunderstood his comment.  Moreover, Reeves’ reaction to his comment lends credence to Whitmore’s version.  Several witnesses agree that Reeves was sufficiently offended by the incident that she left the room abruptly.  Even given her conclusion that Grievant had “crossed the line” a few weeks earlier, this reaction would be quite extreme if Grievant had merely asked if Whitmore wanted his jeans.  It is therefore concluded that Grievant’s comment was substantially as reported by Whitmore, and not the more innocuous inquiry he and the Union’s witnesses reported.

Grievant’s comment was tasteless and inappropriate in the workplace, but went only slightly beyond the joking and flirtatious exchanges he had with Whitmore in the past.  Absent other misconduct, it would not have been sufficient to warrant serious discipline, even given his disciplinary history.  However, when coupled with his physical gesture, it demonstrate a lack of common sense and propriety.  The State thus properly took it into consideration in determining the appropriate discipline for the reported incidents.

Grievant has conceded that he probably called Whitmore a troublemaker.  Had this comment occurred after Grievant confronted McGuire on November 30, the remark would have been somewhat intimidating.  However, on November 28, he did not yet have reason to believe Whitmore had reported his conduct to McGuire.  The State therefore has not sustained its burden regarding the charge of retaliation.

Grievant was not charged with unwelcome touching of Reeves, other than a single alleged instance of pushing his chair against her and running his hands down her back.  As noted above, Reeves did not testify to this specific event; only hearsay interview notes suggest this occurred.  Accordingly, the State has not sustained its burden regarding this allegation.