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Title: Department of Veterans Affairs and AFGE Local 1089
Date: November 11, 1999
Arbitrator: Sandra Gangle
Citation: 1999 NAC 118

FEDERAL MEDIATION AND CONCILIATION SERVICE

BEFORE SANDRA SMITH GANGLE, ARBITRATOR

 

In the Matter of the Arbitration                                     )

between                                                                       )

                                                                                    )

DEPARTMENT OF VETERANS AFFAIRS,         )    FMCS Case No. 99-07934

Employer,                                                                     )    DECISION AND AWARD

                        and                                                       )

AMERICAN FEDERATION OF                             )  (Charles Leadford, Grievant) 

GOVERNMENT EMPLOYEES (AFGE),               ) 

                                    LOCAL 1089,                         )

Union                                                                           )

_________________________________________ )

 

Hearing Conducted:                              September 17, 1999

Representing the Employer:                   Michael P. McCarthy, Regional Counsel
                                                            Department of Veterans Affairs
                                                            1224 Federal Building
                                                            1220 SW 3rd Avenue
                                                            Portland, OR  97204

Representing the Union:                        Alan Vines
                                                            President
                                                            AFGE Local 1089 
                                                            P.O. Box 2546
                                                            White City, OR 97503

Arbitrator:                                            Sandra Smith Gangle
 
                                                           Sandra Smith Gangle, P.C. 
                                                           
117 Commercial St. N.E., Suite 310
 
                                                           Salem, OR  97301

Date of Decision:                                 November 11, 1999

                                                 BACKGROUND

            This matter came before the arbitrator pursuant to the Master Agreement between the Department of Veterans Affairs (hereafter DVA or “the Employer”) and the American Federation of Government Employees (hereafter AFGE or “the Union”), effective between March 21, 1997 and March 20, 2000.  Jt. Ex. No. 1.

            A grievance was filed in this matter on December 4, 1998.  See Joint Exhibit 2, page 35.   The parties, having been unable to resolve the matter during the grievance procedure, mutually selected Sandra Smith Gangle, Attorney at Law, 117 Commercial St. N.E., Suite 310, Salem, Oregon 97301, through selection procedures of the Federal Mediation and Conciliation Service, as the labor arbitrator who would conduct a hearing and render a decision in the matter. 

            A hearing was conducted on September 17, 1999 in a conference room of the Administration Building, Department of Veterans Affairs Domiciliary, White City, Oregon.  The parties were thoroughly and competently represented by their respective representatives throughout the hearing.  The Employer was represented by Michael P. McCarthy, Regional Counsel, DVA, assisted by Don Sweeney, Human Resources Management Officer.  The Union and the Grievant were represented by Alan E. Vines, AFGE Local 1089 President.

            There were no objections to procedural or substantive arbitrability of the matter.  The parties were each afforded a full and fair opportunity to present testimony and documentary evidence in support of their respective positions.   The following witnesses appeared and testified under oath and were subject to cross-examination: 

         (a) For the Employer:  Charles Silvey, Patrick Liles, Sharon Kalvels and George H. Andries, Jr.;
       
(b)  For the Union:  Charles Leadford (Grievant), James Miller, Tommy Joe Hulin, John Mitchell,
         Dennis Dye, Cinda Lynn Klumpp and David Irwin.

            At the close of the hearing, the parties elected to present oral closing argument, rather than written briefs. The arbitrator officially closed the hearing and took the matter under advisement upon completion of oral argument by both parties.

            The arbitrator has considered all the testimony and evidence offered by the parties at the hearing.  She has weighed all the evidence and has given careful consideration to the final arguments of the parties and the arbitral/legal authority offered by the parties in support of their respective positions, in reaching her decision.

STATEMENT OF THE ISSUE

            The parties stipulated that the issue before the arbitrator in this matter is as follows:

            Was the Grievant, Charles Leadford, suspended for five days for just and sufficient cause?   If not, what is the appropriate remedy?  

RELEVANT CONTRACTUAL PROVISIONS

ARTICLE 13—DISCIPLINE AND ADVERSE ACTION

Section 1 - General.   

The Department and the Union recognize that the public interest requires the maintenance of high standards of conduct.  No bargaining unit employees will be subject to disciplinary action except for just and sufficient cause.  Disciplinary actions will be taken only for such cause as will promote the efficiency of the service.  . . . .

Section 3 – Removal of Disciplinary Actions

Admonishments and reprimands may be removed from an employee’s files after a six-(6) month period.  If an employee requests removal of such actions after six (6) months, they should be removed if the purpose of the discipline has been served.  In all cases, an admonishment will be removed from an employee’s file after two (2) years and a reprimand will be removed after three (3) years.

Section 5 – Alternative and Progressive Discipline.

The parties agree to a concept of alternative discipline which shall be a subject for local negotiations.  The parties also agree to the concept of progressive discipline, which is discipline designed primarily to correct and improve employee behavior, rather than punish.

Section 6 – Fairness and Timeliness

Disciplinary actions must be consistent with applicable laws, regulations, policy and acceptable practice within the Department.  Discipline will be applied fairly and equitably and will not be used to harass employees.  Disciplinary actions will be timely based upon the circumstances and complexity of each case.

Section 10 – Investigation of Disciplinary Actions.

A.  Management will investigate an incident or situation as soon as possible to determine whether or not discipline is warranted.  Ordinarily this inquiry will be made by the appropriate line supervisor.  The employee who is the subject of the investigation will be informed of their right to representation before any questioning takes places (sic) or signed statements are obtained. . . .

B.   Disciplinary investigations will be conducted fairly and impartially, and a reasonable effort will be made to reconcile conflicting statements by developing additional evidence.  In all cases, the information obtained will be documented.  Supervisory notes may be used to support an action detrimental to an employee only when the notes have been shown to the employee in a timely manner after the occurrence of the act and a copy provided to an employee as provided for in Article 23 Official Records.

ARTICLE 16 – EMPLOYEE RIGHTS

            Section 1 - General    

In an atmosphere of mutual respect, all employees shall be treated fairly and equitably and without discrimination in regard to their political affiliation, Union activity, race, color, religion, national origin, gender, sexual orientation, marital status, age, or non-disqualifying handicapping conditions.  Employees will also be afforded proper regard for and protection of their privacy and constitutional rights.  It is therefore agreed that Management will endeavor to establish working conditions which will be conducive to enhancing and improving employee morale and efficiency.

* * * * *

            B.         No disciplinary or adverse action will be taken against an employee upon an ill-founded basis such as unsubstantiated rumors or gossip.

            C.         No employee will be subjected to intimidation, coercion, harassment, or unreasonable working conditions as reprisal nor will an employee be used as an example to threaten other employees.

* * * * *

            Section 8 – Dignity and Self-Respect in Working Conditions.         

Employees, individually and collectively, have the right to expect, and to pursue, conditions of employment which promote and sustain human dignity and self-respect.

* * * * *

ARTICLE 17 – EQUAL EMPLOYMENY OPPORTUNITY

            Section 2 – Equal Employment Opportunity Program

The Department’s Equal Employment Opportunity (EEO) Program shall be designed to promote equal employment opportunity in every aspect of the Departmental personnel policy and practice in accordance with applicable law and Government-wide rules and regulations.  The program shall include, but not be limited to, the following:

* * * * *

E.         Commitment to the prevention of sexual harassment. . . .

ARTICLE 28 – SAFETY, HEALTH AND ENVIRONMENT

            Section 23 – Workplace Violence

            The parties agree that violence should be eliminated from all workplaces within the Department.   
           
Each facility will develop a policy on the prevention of violence.

ARTICLE 30 – STAFF LOUNGES

Due to the complexities and variables surrounding needs, facilities, and/or services, the parties agree that the subject of staff lounges is more appropriately addressed at the Local level.

ARTICLE 40 – ARBITRATION

            Section 2 – Conventional Arbitration Procedure

* * * * *

            B.         The procedures used to conduct an arbitration hearing shall be determined by the arbitrator.  Both parties shall be entitled to call and cross-examine witnesses before the arbitrator. . . . .

            C.         The arbitrator’s fees and expenses shall be borne equally by the parties. . . .

            F.         The arbitrator’s decision shall be final and binding.  However, either party may file an exception to the arbitrator’s award in accordance with applicable law and regulations.  The arbitrator will be requested to render a decision within sixty (60) days.  Any dispute over the interpretation of an arbitrator’s award shall be turned over to the arbitrator for settlement, including remanded awards.

                                                                                    Jt. Exhibit No. 1

                                    STATEMENT OF THE FACTS

            The undisputed facts of this matter are as follows:

            1.         The Grievant has been employed by the DVA for seven years.  He has worked in the kitchen at
                        the Domiciliary in White City, Oregon during that entire time.

            2.         On January 8, 1998, the Grievant stipulated to accept a written Reprimand, which was     
                        based on the following stated reasons:

                                    “a.       A patient asked about getting a larger portion of food.  In response to the patient’s request, you were abusive towards the patient by slamming down a plate and saying, “No! That is all you get!”; [and]

                                    “b.       Mr. Leadford’s behaviors while working in the Nursing Service area presented an on-going problem involving his interactions with staff nurses.  This problem had an adverse affect (sic) on the efficiency service (sic).”

                                                                                                            Jt Exhibit No. 2, page 50

  3.         Mr. Charles Silvey is a co-worker of the Grievant.  He has worked in the kitchen at
              the Domiciliary for fifteen years.  He is hard-of-hearing in his left ear.

            4.         The Grievant and Mr. Silvey both worked the same shift on October 5, 1998.  At approximately
                        6:45 p.m. the two men were in the men’s locker room, changing their uniform shirts and waiting to
                        leave for the day.  Their shift was scheduled to end at 7:00 p.m.   At least two other co-workers,
                        James Miller and Tommy Joe Hulin, were in the locker room as well.

            5.         The conversation in the locker room focussed on recent news stories about the relationship
                        between President Clinton and Monica Lewinski.   There was some laughing and joking going on.
                       
The Grievant was doing much of the talking.  The precise statement or statements which the
                        Grievant made are in dispute and will be discussed elsewhere in this report.

            6.         The following day, Mr. Silvey approached supervisor Patrick Liles, looking distraught.  When Liles
                        asked Silvey what was wrong, Silvey first said he did not want to talk about it.  When pressed for
                        an explanation, Silvey went to a typewriter in the office and typed the following message for his
                        supervisor:

            Subject: Sexual Abuse

            Abuse upon Charles Silvey by Charles Leadford

            Date of Incident:  October 5, 1998

            Time:  6:45 p.m.

            Place:  Men’s Restroom (Mess Hall)(Kitchen)

            Witnesses: Joe Hulin, James Miller

            What happened was I and the other men were in the restroom preparing to go home after completing our work at the Domiciliary.    At approximately 6:45 p.m., I, Charles Silvey, without any provocation and for no reason, was verbally attached (sic) by sexually vulgar language twice in succession by Charles Leadford.  After each vulgar comment (sexually vulgar), I, Charles Silvey, replied to Charles Leadford’s vulgar comments that he was sick (referring to the vulgar statements).

            I, Charles Silvey, not being able to bear any more harassment and being embarassed in front of my co-workers left the men’s restroom and shortly thereafter went home (time 7:00 p.m.). This action upon myself by Charles Leadford also caused me to lose a lot of rest (sleep) the following night.

                                                [s] Charles Silvey, 10/6/98

In relationship to the vulgar statement that was said was, “Charlie, do you want a blow job (repeated twice)”.

                                                                        Jt. Ex. No. 2, page 49.

            7.         On October 8 and 9, 1998, Mr. Liles interviewed Tommy Joe Hulin and James Miller separately
                        about their recollection of the conversation that had occurred on October 5 in the men’s lounge. 
                       
In response to the specific question, “. . . [D]id you hear any unwanted or nasty language from 
                        Mr. Leadford to Charlie Silvey?”, Hulin responded:

 “[T]here is a lot of talk like that going on all the time and I hear a lot of truck stop talk all the time and I let it go in one ear and out the other”.

                                                            Jt. Ex. No. 2, page 47.

Miller, in turn, responded to the same question in the following manner:

 “I hear stuff like that and I don’t pay any attention to it.”

                                                            Jt. Ex. No 2, page 46.

            8.         On October 13, 1998, Mr. Silvey returned to Mr. Liles’s office and asked Liles to return his
                        letter to him, because he did not want Mr. Leadford to get into trouble.  Mr. Liles told
                        Mr. Silvey he could not return the letter, because he was obliged to take action on the
                        matter.      

            9.         On October 15, 1998, Liles issued a memorandum to the Grievant, entitled “Official
                         Inquiry”, which provided in pertinent part as follows:

                                    (1)        On October 5, 1998, at approximately 6:45 p.m., you were heard using obscene and disrespectful remarks towards an employee in the men’s lounge.

                                    (2)        Your alleged actions in this matter may have had an adverse impact on the efficiency of this service.

                                    (3)        I order you to provide me with a written explanation of your conduct . . . by the close of business on the 7th calendar day after your receipt of this inquiry.

                                                                                    Jt. Ex. No. 2, page 43(c).

          10.       The Grievant responded to Mr. Liles’s memorandum as follows:

                                On the evening of October 5, 1998, I felt great and was in a joyful mood.  I did not have any problems and I was not aware of any problems.  So I was teasing and joking around like everyone else.

                                                There has always been teasing and joking around between the men.  This teasing and joking has always been condoned in the Mens Lounge (Locker Room), by the past and present supervisors.  At times the language during the teasing and joking can be grubby and colorful.  To my knowledge this was not a major problem as long as it stayed in the Mens Lounge.

                                                No One said a thing that night that they were offended or that they take exception to the joking or teasing.

                                                I never Intended or said anything that was meant to be disrespectful.

                                                                                                                      [s] Charles L. Leadford

                                                                                                                  Jt. Ex. No. 2, page 43(b)

           11.          On November 5, 1998, Sharon Kalvels, Chief of Nutrition and Food Service, issued a notice of proposed five-day suspension to the Grievant.  The proposal was based on the allegation that the Grievant had been “heard using obscene and disrespectful remarks towards an employee in the men’s lounge on October 5, 1998”. See Jt. Ex. No. 2, page 43(a)

                        The Grievant was also advised that his past record, which included the letter of reprimand dated January 8, 1998, would be taken into account in determining the appropriate discipline.  The Grievant was invited to submit an oral and/or written response, with supporting evidence, with regard to the previous infractions and penalties.

           12.       On or about November 20, 1998, a Union steward, Travis Eubanks, submitted a letter to Ms. Kalvels,  in which the following arguments were presented:

                        The proposed action violates Mr. Leadford’s rights as identified in 5 U.S.C. 7116(a)(2) because of his duties as a shop steward.  The proposed action . . . was clearly unwarranted. . . . (T)here was no intent to demean or offend anyone in the locker room,

                        . . . . this is the usual and condoned practice by which the men release tension before going home as they dress down after a stressful day of dealing with patients, some of [whom] are downright abusive to the staff. . . .  At no time did [Leadford] single out anyone, but was joking to the room at large. . . .

                                                            See Jt. Ex. No. 2, page 39

            13.       On November 23, 1998, Ms. Kalvels issued a notice of five-day suspension to the Grievant, based on the facts of the October 5 incident, considered in the light of the Grievant’s past disciplinary record.  See Jt. Ex. No. 2, page 37.  It is that discipline that is the subject of the instant grievance.

POSITIONS OF THE PARTIES

            A.        The Employer:         The Employer contends it had just and sufficient cause, as required by the parties’ collective bargaining agreement, to suspend the Grievant for five days. 

            The Grievant violated the applicable standard of behavior for employees of the DVA Domiciliary, which is mutual respect, when he directed hostile, demeaning and abusive remarks at co-worker Charles Silvey on the men’s locker room on October 5, 1998.   This was the second incident for which the Grievant merited disciplined for abusive conduct.  He had previously been reprimanded for verbal abuse of a patient and of nursing staff. 

            The Employer points out that the Range of Penalties for Stated Offenses, which is published in the Management Handbook, permits the Employer to issue discipline ranging from a ten-day suspension to removal for a second offense under the category of “Disrespectful conduct, use of insulting, abusive or obscene language to or about other personnel”.  See Agency Ex. No. 1.   Therefore, the Employer contends that its decision to implement a five-day suspension to the Grievant in this case was not only reasonable, but was less than the level of discipline that it could have implemented.  The discipline was appropriate under the principle of progressive discipline and it should not be set aside by the arbitrator. 

            B.        The Union:         The Union contends that the Grievant did not commit any disrespectful or abusive act and that the arbitrator should grant the grievance.  Whatever the Grievant said in the men’s locker room on October 5, 1998 was in the nature of joking or “shop talk” only, and referred generally to the Clinton/Lewinski relationship.  Such joking had historically been acceptable in the parties’workplace, particularly in the men’s locker room. 

            The Union contends the Employer failed to prove the Grievant directed any obscene or disrespectful remark at Mr. Silvey, as alleged in the notice of charges.  Mr. Silvey is the only person who testified at the hearing that he heard the specific vulgar remark that the Grievant allegedly directed at him, purportedly asking him if he wanted a “blow job”. 

            Since Mr. Silvey is hard-of-hearing, he may have misunderstood the words that the Grievant actually said.  Other witnesses confirmed that they had only heard light-hearted jokes on the afternoon in question. Therefore, the preponderance of evidence supports the Grievant’s version of the facts, rather than Silvey’s.

ANALYSIS AND DECISION

            The arbitrator’s role is to determine whether the parties’ collective bargaining agreement has been violated.  Since this case involves a disciplinary action, the primary contract provision which the arbitrator must interpret and apply is Article 13, governing Discipline and Adverse Actions.    Section 1 of  Article 13 provides as follows:

The Department and the Union recognize that the public interest requires the maintenance of high standards of conduct.  No bargaining unit employees will be subject to disciplinary action except for just and sufficient cause.  Disciplinary actions will be taken only for such cause as will promote the efficiency of the service.  . . . .

                                                                         (emphasis added)

Section 6 of the same article provides as follows, in pertinent part:

Disciplinary actions must be consistent with applicable laws . . . and acceptable practice within the Department.

Guided by those provisions, and considering the context of other relevant contractual provisions, the arbitrator must determine whether the Employer had just cause for the five-day disciplinary suspension that it imposed on the Grievant.  The burdens of proof and of persuasion, to establish just cause for the suspension, are on Management, not on the Union.

            Arbitrators ordinarily determine “just cause”[1] by asking a series of seven questions, or “tests”, which correspond to the various elements of just cause.  According to Arbitrator J. Carroll Daugherty, who developed the tests in 1964, a “No” answer to any of the seven questions leads to a conclusion that the Employer did not have just cause at the time the disciplinary action was taken.  See, e.g., Grief Bros. Cooperage Corp., 42 LA 555, 557-59 (Arb. Daugherty, 1964).  

            The arbitrator has determined that three of Arbitrator Daugherty’s questions (i.e., tests) are relevant to the instant case.  They are as follows:

1.                  Did the Employer give the Grievant forewarning or foreknowledge of the possible or probable disciplinary consequences of the Grievant’s conduct?  (The NOTICE test)

2.                  Did the Employer obtain substantial evidence, or proof, that the Grievant was guilty as charged?  (The PROOF test); and                                                             

3.                  Was the penalty that the Employer imposed reasonably related to (a) the seriousness of the Grievant’s proven offense and (b) the record of the Grievant’s service?   (The APPROPRIATE PENALTY test)

A.  The NOTICE Test:

            In the typical employment setting, the employer notifies employees of its expectations regarding appropriate workplace behavior in a variety of ways.   Written rules may be published in an employee handbook, or they may be posted on an employee bulletin board or distributed individually to employees.  Sometimes rules are communicated verbally.   In order to be enforced, arbitrators generally require that the work rules be reasonably related to the orderly, efficient and safe operation of the employer’s business.   See generally, Koven and Smith, Just Cause, The Seven Tests, 2nd ed. (BNA Books 1992), Chapter 1.        

In this case the Employer demonstrated that its management handbook contains a list of sixteen specific categories of prohibited conduct.  Suggested ranges of penalties are included for the first, second or third offense in each category.  One of the categories of offenses is “Disrespectful conduct, use of insulting, abusive or obscene language to or about other personnel”.  See Agency Exhibit No. 1.

There was some disagreement at the hearing over whether the union and its members, including the Grievant, had ever seen the management handbook.  The issue is moot, however, because the arbitrator is persuaded that the Grievant had actual knowledge, on October 5, 1998 that he was obliged to avoid “disrespectful conduct and insulting, abusive or obscene language” toward his co-workers. 

First, the Grievant had stipulated to a disciplinary reprimand less than one year earlier, in January of 1998, that was based on two instances of alleged disrespectful conduct on the job -- one involving abusive language toward a patient and the other referencing an on-going problem of “interactions with staff nurses”.   In the stipulation, the Grievant had expressly agreed “to refrain from the conduct which [had] led to [the] reprimand” and stated that he knew he could be disciplined more severely for future acts of similar misconduct.  See Jt. Ex. No. 2, page 50.

The Grievant also acknowledged at the hearing that he had taken on-the-job training in avoiding sexual harassment.  According to management witness George Andries, sexual harassment training would have included discussions about the obligation to avoid conduct or language that could create a hostile workplace for those employees who are embarrassed or offended by vulgar or obscene language.  Although the Grievant testified that his training had only dealt with harassment of persons of the opposite sex, he did not deny that he knew vulgar and obscene language could constitute a “hostile environment”.

Thirdly, there are some types of misconduct that are considered so egregious that they are generally known to be prohibited in all workplaces.  Employers do not need to publish specific work rules prohibiting such misconduct and arbitrators will usually uphold disciplinary actions that are based on proven incidents of such misconduct. Some arbitrators are now including workplace sexual harassment, including excessive profanity or obscenity directed at others, among the “generally forbidden” categories as well.  See, e.g., GTE Cal, Inc., 103 LA 343 (Arb. Grabuski, 1994); Santa Cruz Transit Dist., 103 LA 167 (Arb. Pool, 1994). In Steuben Rural Electric Corp., 98 LA 337 (Arb. La Manna, 1991), the arbitrator determined that sexually explicit questions and requests for sexual acts of co-workers, which had been repeated after the co-workers had rejected them, had posed a possible imminent danger to the co-workers.  He upheld the grievant’s discharge and did not even require the use of progressive discipline. 

The types of conduct which constitute “sexual harassment” have been determined through case law interpreting Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of sex”.   The United States Supreme Court has construed Title VII to require that employers prohibit, not only direct requests for sexual favors in the workplace, but the use of unwelcome sexual language, jokes or other demeaning and insulting conduct of a sexual nature as well.  That is the so-called “hostile environment” theory, which was first discussed in the 1986 case, Meritor Savings Bank v. Vinson, 106 S. Ct. 2399.
   
         Originally, sexual harassment was deemed to be a male-to-female issue. Assuming that the victim would be a woman, the Ninth Circuit established a “reasonable woman” test to determine whether harassment existed under the facts of a particular case.  See Ellison v. Brady, 924 F.2d 872 (9th Cir.,1991).   The “reasonable woman” standard has since been changed, however, to a “reasonable victim” standard, because of the recognition that men, as well as women, can be victims of sexual harassment.   The Supreme Court explained, in Harris v. Forklift Systems, Inc., 114 S. Ct. 367 (1993), that a hostile environment can be found to exist, and Title VII may be violated, when “the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”  The Court also determined that sexual harassment would be established if “the environment would reasonably be perceived, and is perceived, as hostile or abusive.”    Id., at 228. 

 In a 1998 case, Oncale v. Sundowner Offshore Services, Inc., the Supreme Court determined that workplace harassment could violate Title VII, even if the harasser and the harassed employee were of the same gender.  See Agency Exhibit 2.  In same-gender situations, however, the Court warned that it would be necessary to distinguish “ordinary socializing in the workplace – such as male-on-male horseplay” from severely or pervasively abusive behavior, which would violate the statute.  The Court’s conclusion was, “Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive." Id., page 4.

In labor grievances involving the alleged use of abusive or obscene language by a grievant, arbitrators usually consider the context of the employment setting where the offensive incident allegedly occurred.  If the expected standard of behavior in the workplace has been mutual respect and reasonable decorum, the arbitrator is more likely to find that the employees are on notice that discipline will be imposed if they violate that standard.  See generally, Brand (Editor), Discipline and Discharge in Arbitration (BNA Books, 1998) at page 278-280.   Where obscene or profane language has led to the discipline, an arbitrator is likely to consider whether “the manner and spirit of use of the language, the exact language used [and] the extent to which profanity is used and/or tolerated in th[e] particular [workplace] and in the community at large” are sufficiently egregious to support the imposition of discipline.  See, e.g., Freightliner Corp., 95 LA 302, 311 (Arb. Tilbury, 1990).

            The standard of “mutual respect” is incorporated by express reference or by clear implication in several provisions of the parties’ collective bargaining agreement.   The standard is recognized as a joint obligation of management and the union and is reflective of the fact that the mission of the Domiciliary is to provide caring service to medically and psychologically fragile veterans.   The parties have expressly agreed, in Article 13, Section 1, the just cause provision, that “the public interest requires the maintenance of high standards of conduct”.  Also, in the Employee Rights section, Article 16, Section C, the parties agreed that “[e]mployees, individually and collectively, have the right to expect, and to pursue, conditions of   employment which promote and sustain human dignity and self-respect.”  See Jt. Exhibit No. 1. 

            Now, the Union contends that sexual banter is common at the Domiciliary and that end-of-the-day joking, or “shop talk”, among male employees in the mens’ locker room is out of the hearing of patients and is not likely to offend anyone.  Indeed, off-color jokes can help the employees to vent their emotions and relieve the tensions of the workday, in the Union’s view.   Also, the particular subject that the men were joking about on October 5, 1998 was a subject that was very much in the news at the time, involving alleged sexual conduct by President Clinton and Monica Lewinsky.  The Union implies, therefore, that the co-worker who claimed he was offended by the Grievant’s remarks should not have been upset, but should have been able to tolerate what he heard.

The arbitrator is persuaded, however, that this case involves something more serious than casual off-color joking or comments about the Clinton-Lewinsky situation. The language which led to the discipline in the instant case was a remark which the Grievant, a male, allegedly directed at a male co-worker twice.  The specific remark that is alleged was a question, “Do you want a blow-job?”  After the question was asked once, the co-worker contends he told the Grievant, “Charlie, you’re sick”, and then he says he got up to leave the room.  The Grievant nevertheless allegedly repeated the remark, forming the words in a whisper and directing the remark at the co-worker as the co-worker opened the door to leave. 

The arbitrator finds that the alleged conduct, if sufficiently proved, would constitute abusive conduct in the particular workplace that is involved in this grievance.  First of all, the alleged language could not be construed as a mere “joke” or teasing.  The question, “Do you want a blow-job?” could only be interpreted in one of two ways.  It is either a direct solicitation for sex or a demeaning putdown, intended to shock the recipient or belittle his sexuality. 

             While such a remark might possibly be shrugged off by some co-workers, it would clearly be offensive to others.  What is most significant to the arbitrator, however, is that the alleged request was made, not once but twice.  It was allegedly repeated a second time, after the co-worker had demonstrated to the speaker that he was offended by the question and wanted the speaker to stop bothering him.  The co-worker said, “Charlie, you’re sick”, and then got up to move away.  By that movement, he clearly conveyed the message that he was disgusted and annoyed and wanted the sexual questioning to stop.  The questioning did not stop, however.  It was at that point that common sense says the questioner crossed the line and became harassing and abusive.  

Even the co-workers who testified at the hearing as to the joking and teasing that customarily went on in the mens’ locker room at the Domiciliary agreed that the specific question that is alleged in this case, and its alleged repetition, would not constitute acceptable conduct.  Witnesses James Miller, Tommy Joe Hulin, Cinda Klumpp and David Irwin agreed that it would never be acceptable to direct sexual comments at another individual.  According to those witnesses, the off-color jokes that were considered acceptable in the men’s (and women’s) locker rooms were always about third parties.  They also acknowledged that it would be unacceptable to repeat offensive comments to a co-worker, once that co-worker demonstrated that he was offended by the discussion.[2]  Cinda Klumpp even said that an apology would be in order.

            This case does not involve a simple off-color joke or an example of teasing a co-worker who showed no disgust or offense at the teasing.  The arbitrator expresses no judgment here regarding such conduct at the Domiciliary.  This case involves a direct request to a co-worker about a sex act and then a repetition of the question after clear notice was given by the co-worker that the question had been unwelcome and offensive. 

            Assuming that such a sequence has been proven by adequate evidence, the arbitrator finds that the Grievant knew, or reasonably should have known, that he was subject to disciplinary action, for abusive conduct, if he behaved in that fashion. The Grievant already had one reprimand in his file for abusive verbal conduct to a patient and to his co-worker nurses.  In that reprimand, he had stipulated that any future conduct of a similar nature would lead to further discipline.  The Grievant cannot claim lack of notice as a defense to the discipline in this matter, nor can he claim that the alleged remark, which led to the discipline, was benign sexual banter.    

                B.  The PROOF Test: 
           
As countless arbitration decisions demonstrate, the Employer must produce convincing proof that the Grievant committed the offense with which he was charged and disciplined.  It is not up to the Grievant to prove that he was “not guilty”.

In the instant case, the only witness who heard the specific remark with which the Grievant was charged was Mr. Silvey.  Neither of the men who happened to be in the men’s locker room at the time (Miller and Hulin) heard the Grievant ask Mr. Silvey if he wanted a “blow-job”.  They both testified that they only recalled a conversation which was generally focussed on the Clinton/Lewinski affair.

Supervisor Liles testified that he believed Mr. Silvey when Silvey went into his office on October 6, 1998, and reported that the Grievant had accosted him the day before with the specific question about a “blow-job”.  Liles said Silvey looked and acted very distraught.  Unable to talk about what was bothering him, Silvey typed out a letter on Liles’s typewriter, explaining why he was so upset.  In his letter, Silvey typed out the express wording of the question which had offended him.  He also indicated it had been asked twice.  See Jt. Ex. 2, p. 49. 

Mr. Liles conducted a reasonable investigation, first interviewing Miller and Hulin to learn if they had heard any “unwanted or nasty language” on October 5.  Miller responded, “I hear stuff like that and I don’t pay any attention to it.”  See Jt. Ex. 2, p.46.  Hulin, in turn, stated, “There is a lot of talk like that going on all the time and I hear a lot of truck stop talk all the time and I let it go in one ear and out the other.”  See Jt. Ex. 2, p. 47. 

Liles also interviewed the Grievant and reviewed the Grievant’s record.  Meanwhile, he observed that Mr. Silvey remained quiet and withdrawn.  In fact, Liles testified at the hearing that Silvey’s behavior became visibly different after the incident; he appeared “scared,  paranoid and upset”. 

Mr. Liles was concerned that the matter should be reviewed by his superiors, for possible disciplinary action.  He passed the information on to his supervisor, Dennis Overlook, who subsequently referred the matter to Sharon Kalvels, Chief of Nutrition and Food Service. It was Kalvels who then made the decision to discipline the Grievant.

During the disciplinary review process, Mr. Silvey went into Mr. Liles’s office and asked to take back his written statement.  He did not say the statement had been untruthful, but rather that he did not want to get the Grievant into trouble.  Mr. Liles refused to give back the statement, however.

At the hearing, the only witness who testified that he actually heard the Grievant say, “Do you want a blow-job?” was Mr. Silvey.  The arbitrator carefully observed his demeanor and  evaluated his credibility as he related the incident that had occurred on October 5, 1998.  Silvey was direct and forthright in addressing the arbitrator.  Although he appeared a bit tense and uncomfortable, he did not display any signs of untruthfulness.  He gave specific details about the size and arrangement of the men’s locker room and he described the locations where he and the Grievant had been sitting on October 5, 1998.  He also explained where Miller and Hulin had been standing during the conversation.  While the Grievant was sitting about six or seven feet away from him, he said, Miller and Hulin were considerably further away, over by their lockers on the other side of the room. 

Silvey told the arbitrator that he had said, “Charlie, you’re sick”, after the Grievant asked him if he wanted a “blow-job”.  He said he then got up from the table and opened the door to leave. At that point the Grievant repeated the same words to him in an audible whisper, “Do you want a blow-job?”.  Silvey said he was upset himself and was concerned that a couple of women in the hallway might have been able to hear  the “vulgar” comments that the Grievant had made.

Silvey acknowledged that he suffers from a slight hearing impairment in his left ear.  He said the Grievant had been seated to his right side during the subject conversation, however.  Therefore, his hearing problem did not interfere with his ability to hear correctly what the Grievant said to him.

Silvey said he waited outside in the parking lot for awhile, because he thought the Grievant might apologize to him.  When that did not happen, he went on home and tried to rest. He was so upset, however, that he could not sleep that night.  He decided he had to make a report to supervisor Liles the next day.

The Grievant denied that he had made the alleged comments to Sylvie about a “blow-job”.  He said that Silvey was hard-of-hearing and must have misunderstood what he said.  He said he was “just joking and teasing about Clinton and Lewinsky, like everyone else”.

During his testimony, the Grievant’s face became very red and his eyes blinked rapidly.  He did not look at the arbitrator when he answered questions.  He spoke defensively during cross-examination.  The arbitrator concluded from these signs that he was not being truthful. 

The Employer produced sufficient proof to meet the just cause standard.  Mr. Silvey’s  testimony was credible and the Grievant’s was not.  Even though Sylvie has a slight hearing impairment, the arbitrator is persuaded that he could hear sufficiently in his right ear to detect the actual language that the Grievant directed at him.  Also, even though witnesses Miller and Hulin did not hear the Grievant ask Mr. Sylvie if he wanted a “blow-job”, it appears they were simply too far away to pick up the objectionable comments.

The arbitrator notes here that it took considerable courage for Mr. Silvey to come forward and report the harassing incident that occurred on October 5, 1998 to his supervisor.  It no doubt required even greater courage for Silvey to appear and testify at the arbitration hearing about the event, which had been so offensive to him.  Not only did he have to confront his co-worker with the facts, but he was obliged to repeat the actual words that had been so distasteful and upsetting to him. 

The arbitrator notes specifically here that it is only as a result of the courage of people like Mr. Silvey that incidents of sexual harassment in the workplace can be stopped.  Mr. Silvey should be commended.

III.  The PENALTY Test: 

Article 13 Section 5 of the parties’ collective bargaining agreement expressly requires the use of progressive discipline, to correct inappropriate behavior, rather than punish.

For the conduct in question, the Employer issued a five-day suspension to the Grievant.  Sharon Kalvels testified that she considered the Grievant’s record, as well as the seriousness of the offense, in deciding on the appropriate level of discipline.  He had a previous written reprimand on his record, which had been based on misconduct of a type similar to the misconduct with which he was being charged  – disrespectful behavior toward others in the workplace.  The table of recommended penalties in the management handbook recommended a minimum of ten days’ suspension for conduct of this nature.  Kalvels chose, however, to implement only a five-day suspension.  She thought that would be sufficient to get the Grievant’s attention and persuade him to correct his behavior.

Under the circumstances, the arbitrator finds the level of discipline entirely reasonable.   

AWARD

            For the reasons set forth in the preceding analysis and decision, the arbitrator has determined that the Employer did have just cause for the five-day suspension.  The grievance is denied. 
            The parties shall share equally the arbitrator’s fee and expenses.

            DATED this 11th day of November, 1999.

                                                           ___________________________________

                                                             SANDRA SMITH GANGLE, Arbitrator

                                                           

[1] While a different term, such as “proper cause”, is used in some contracts, and additional words, like “just and sufficient cause” (which is the phrase used in the parties’ agreement in this case), are found in others, arbitrators agree that those phrases should be interpreted in the same general manner as “just cause”, unless there is an express explanation.  See Koven and Smith, Just Cause: The Seven Tests (2nd ed., BNA Books, 1992) at page 1.

[2] .  Other Union witnesses who appeared at the hearing made similar distinctions between off-color jokes, that were generally tolerated in the workplace, and direct sexual comments, which would not be acceptable.

 

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