Title: Department of Veterans Affairs and AFGE Local
FEDERAL MEDIATION AND
BEFORE SANDRA SMITH GANGLE,
the Matter of the Arbitration
DEPARTMENT OF VETERANS AFFAIRS, ) FMCS Case No. 99-07934
AMERICAN FEDERATION OF ) (Charles Leadford, Grievant)
September 17, 1999
Michael P. McCarthy, Regional Counsel
Sandra Smith Gangle
November 11, 1999
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
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.;
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
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:
the Grievant, Charles Leadford, suspended for five days for just and sufficient
cause? If not, what is the
13—DISCIPLINE AND ADVERSE ACTION
Section 1 -
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
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.
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
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.
– Investigation of Disciplinary Actions.
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. . . .
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.
16 – EMPLOYEE RIGHTS
Section 1 - General
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
* * * * *
No disciplinary or adverse action will be taken against an employee upon
an ill-founded basis such as unsubstantiated rumors or gossip.
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.
individually and collectively, have the right to expect, and to pursue,
conditions of employment which promote and sustain human dignity and
* * * * *
17 – EQUAL EMPLOYMENY OPPORTUNITY
Section 2 – Equal Employment
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:
* * * * *
Commitment to the prevention of sexual harassment. . . .
28 – SAFETY, HEALTH AND ENVIRONMENT
Section 23 – Workplace Violence
The parties agree that violence should be eliminated from all workplaces
within the Department.
30 – STAFF LOUNGES
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.
40 – ARBITRATION
Section 2 – Conventional
* * * * *
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. . .
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:
The Grievant has been employed by the DVA for seven years.
He has worked in the kitchen at
On January 8, 1998, the Grievant stipulated to accept a written
Reprimand, which was
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]
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
The Grievant and Mr. Silvey both worked the same shift on October 5,
1998. At approximately
The conversation in the locker room focussed on recent news stories about
The following day, Mr. Silvey approached supervisor Patrick Liles,
looking distraught. When Liles
Subject: Sexual Abuse
Abuse upon Charles Silvey by Charles Leadford
Date of Incident: October 5,
Time: 6:45 p.m.
Place: Men’s Restroom (Mess
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.
On October 8 and 9, 1998, Mr. Liles interviewed Tommy Joe Hulin and James
“[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.
in turn, responded to the same question in the following manner:
“I hear stuff like that and I don’t pay any attention to
Jt. Ex. No 2, page 46.
On October 13, 1998, Mr. Silvey returned to Mr. Liles’s office and
asked Liles to return his
On October 15, 1998, Liles issued a memorandum to the Grievant, entitled
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.
Your alleged actions in this matter may have had an adverse impact on the
efficiency of this service.
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.
Ex. No. 2, page 43(c).
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
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
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)
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.
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. . . .
Jt. Ex. No. 2, page 39
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
disciplinary record. See Jt. Ex.
No. 2, page 37. It is that
discipline that is the subject of
the instant grievance.
OF THE PARTIES
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
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.
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.
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. . . . .
6 of the same article provides as follows, in pertinent part:
Disciplinary actions must be
consistent with applicable laws . . . and acceptable practice within the
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” 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:
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
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
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.
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
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”.
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).
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
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.
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.
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
what he heard.
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.
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.
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.
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.
The PROOF Test:
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.
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.
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.
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”.
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.
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.
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.
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.
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.
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”.
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
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.
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
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
III. The PENALTY Test:
13 Section 5 of the parties’ collective bargaining agreement expressly
requires the use of progressive discipline, to correct inappropriate behavior,
rather than punish.
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.
the circumstances, the arbitrator finds the level of discipline entirely
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
DATED this 11th day of November, 1999.
SANDRA SMITH GANGLE,
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.
. 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.