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Title: Oregon Health and Science University and American Federation of State, County and Municipal Employees, Local 328 
Date: February 1, 1999 
Arbitrator: Luella E. Nelson 
Citation: 2001 NAC 129

 

In the matter of arbitration between:


American Federation of State, County and Municipal Employees, Local 328
,

                           and

Oregon Health and Science University,

 

 

 

RE:  Don Smith Grievance

LUELLA E. NELSON, Arbitrator

 

                                                                                            


ARBITRATOR'S
OPINION AND AWARD

This Arbitration arises pursuant to Agreement between AFSCME LOCAL 328, COUNCIL 751 (“Union”), and OREGON HEALTH SCIENCES UNIVERSITY  ("University") 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 October 22 and 23, 1998 in Portland, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties filed post-hearing briefs on or about November 24, 1998.

APPEARANCES:

On behalf of the Union:

Barbara Diamond, Esquire, Smith, Gamson, Diamond & Olney, 2110 SW Jefferson, Suite 200, Portland, OR  97201-7712

On behalf of the University:

Victor J. Kisch, Esquire, and Karin L. Guenther, Esquire, Tonkon Torp LLP, 1600 Pioneer Tower, 888 SW 5th Avenue, Portland, OR  97204‑2099

ISSUE

Shall the grievance be sustained or denied; and, if sustained, what shall the remedy be?

RELEVANT SECTIONS OF AGREEMENT

ARTICLE 2
MANAGEMENT RIGHTS

The parties agree that the Agency has the right to operate and manage the institution including, but not limited to, the right to maintain order and efficiency, to direct employees ... to discipline, demote or discharge employees for just cause; ... provided that such rights shall not be exercised so as to vio­late any of the specific provisions of this Agreement.

...

            ARTICLE 6

EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION

...

6.3 [The University] is committed to providing a harassment free work environment.  Any em­ployee who believes s/he is being harassed in violation of Administrative Policy 64-05.07, or its successor may file a complaint with the Affirmative Action Division of the Department of Human Resources.  The Affirmative Action staff shall utilize the same investigatory and grievance process that is utilized for filing AA and EEO complaints.

ARTICLE 10
DISCHARGES AND DISCIPLINE

10.1 The principles of progressive discipline shall be used except when the nature of the problem requires more serious discipline or immediate action.  Progressive discipline includes the following steps: verbal warning; written warning; suspension without pay, salary reduction, demotion; and dismissal.

 

An employee may be disciplined, denied a salary increase, suspended, reduced in pay, de­moted or dismissed only for just cause which shall include misconduct, inefficiency, incompetence, insubordination, indolence, malfeasance, or other unfitness to render effective service.  The “Just Cause” standard is attached hereto and incorporated by reference under Appendix E.

...

10.2 A written pre-disciplinary notice shall be given to a regular status employee against whom a charge is presented.  Such notice shall include the known complaints, facts and charges, and a statement that the employee may be disciplined and/or discharged.  The employee shall be afforded an opportunity to refute such charges or present mitigating circumstances to the Employer ....

ARTICLE 11
GRIEVANCES AND ARBITRATION

...

11.4 Expenses of Arbitration.  The arbitrator fee and expenses shall be paid by the losing party.  If, in the opinion of the arbitrator, neither party can be considered the losing party, then such expenses shall be apportioned as in the arbitrator’s judgment is equitable. ...

ARTICLE 14
PERSONNEL RECORDS

...

14.2 No information reflecting critically upon an employee shall be placed in the employee’s personnel file unless the employee has received a copy of the material and has a bona fide opportunity to see, sign, and submit rebutting information.  The employee shall be asked to sign such material to be placed in his/her personnel files provided the following disclaimer is attached:

“Employee’s signature confirms only that the supervisor has discussed and given a copy of the material to the employee, and does not indicate agreement or disagreement.”

 

If an employee is not available within a reasonable period of time to sign the material, the Employer may place the material in the files provided that a copy of the document was mailed, certified return receipt requested, to the employee at his/her address of record.

...

14.5 Any material including materials reflecting caution, consultation, warning, admonishment or reprimand shall be removed from the personnel file after two (2) years upon written request of the employee.  Such material shall be removed after eighteen (18) months upon written request of the employee provided there are no recurrent problems of a similar nature.

...

APPENDIX E
JUST CAUSE STANDARD

The following questions will assist the parties in determining whether or not the “just cause” standard has been properly applied in instances involving the discipline or discharge of an employee as specified in Article 10 - Discharges and Discipline.

 

1. Did the employer give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

 

Note 1: The forewarning or foreknowledge may properly have been given orally by man­age­ment or in writing through the medium of typed or printed sheets or books of rules and of penalties for violation thereof.

 

Note 2: There must have been actual oral or written communication of the rules and pen­alties to the employee.

 

Note 3: A finding of lack of such communication does not in all cases require a “no” an­swer to question #1.  This is because certain offenses such as insubordination, coming to work intoxicated, drinking intoxicating beverages on the job, or theft of the property of the University or of fellow employees are so serious that any em­ployee in working society may properly be expected to know already that such conduct is offensive and heavily punishable.

 

Note 4: Absent a contractual prohibition or restriction, the employer has the right unilater­ally to promulgate reasonable rules and give reasonable orders, and those need not have been negotiated with the Union.

2.                Were the employer’s rules or managerial order reasonably related to:

a. the orderly, efficient, and safe operation of the employer’s business, and,

b. the performance that the employer might properly expect of the employee?

Note: If any employee believes that the rule or order is unreasonable, the employee must never­theless obey it (in which case the employee may file a grievance) unless the em­ployee sincerely feels that to obey the rule or order would seriously and im­me­di­ately jeopardize his/her safety and or integrity.  Given a firm finding to the latter ef­fect, the employee may properly be said to have had justification for the disobedience.

3. Did the employer, before administering discipline to an employee, make an effort to dis­cover whether the employee did in fact violate or disobey a rule or order of manage­ment?

 

Note 1: This is the employee’s “day in court” principle.  An employee has the right to know with reasonable precision the offense which is being charged and to defend his/her behavior.

 

Note 2: The employer’s investigation must normally be made before its disciplinary deci­sion is made.  If the employer fails to do so, its failure may not normally be excused on the grounds that the [employee] will get a day in court through the grievance procedure after the exaction of discipline.  By that time there has usually been too much hardening of positions.  In a very real sense the employer is obli­gated to conduct itself like a trial court.

 

Note 3: There may, of course, be circumstances under which management must react im­me­diately to the employee’s behavior.  In such cases the normally proper action is to suspend the employee pending investigation with the understanding that (a) the final disciplinary decision will be made after the investigation and (b) if the em­ployee is found innocent after the investigation, the employee will be restored to the former job with full pay for time lost.

 

Note 4: The employer’s investigation should include an inquiry into possible justification for the employee’s alleged rule violation.

 

4. Was the employer’s investigation conducted fairly and objectively?

 

Note 1: At the investigation the supervisor may be both “prosecutor” and “judge” but may not also be a witness against the employee.

 

Note 2: It is essential for some higher detached management official to assume and consci­entiously perform the judicial role, giving the commonly accepted meaning to 

 

Note 3: In some disputes between an employee and a management person, there are not witnesses to an incident other than the two immediate participants.  In such cases it is particularly important that the management “judge” question the management participant rigorously and thoroughly, just as an actual third party would.

 

5. At the investigation did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?

 

Note 1: It is not required that evidence be conclusive or “beyond all reasonable doubt.”  But the evidence must be truly substantial and not flimsy.

 

Note 2: The management “judge” should actively search out witnesses and evidence, not just possibly [sic] take what participants or “volunteer” witnesses tell him/her.

 

Note 3: When the testimony of opposing witnesses at the arbitration hearing is irreconcil­ably in conflict, an arbitrator seldom has any means for resolving the contradic­tions.  The task is then to determine whether the management “judge” originally had reasonable grounds for believing the evidence presented by the people.

 

6. Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

 

Note 1: A “no” answer to this question requires a finding of discrimination and warrants negation or modification of the discipline imposed.

 

Note 2: If the employer has been lax in enforcing it [sic] rules and orders and decides henceforth to apply them rigorously, the employer may avoid a finding of discrim­ination (unequal treatment, not necessarily unlawful discrimination) by telling all employees beforehand of its intent to enforce hereafter all rules as written.

 

7. Was the degree of discipline administered by the employer in a particular case reasonably related to (a) the seriousness of the employer’s [sic] proven offense and (b) the record of the employee in service with employer?

 

Note 1: A trivial proven offense does not merit harsh discipline unless the employee has properly been found guilty of the same or other offenses a number of times in the past.  (There is no rule as to what number of previous offenses constitutes a “good, a fair, or a bad” record.  Reasonable judgment thereon must be used.)

 

Note 2: An employee’s record of previous offenses may never be used to discover whether the employee was guilty of the immediate or latest one.  The only proper use of his record is to help determine the severity of discipline once the employee has properly been found guilty of the immediate offense.

 

Note 3: Given the same proven offense for two or more employees, their respective records provide the only proper basis for “discriminating” among them in the administra­tion of discipline for the offense.  Thus, if employee A’s record is significantly better than those of Employees B, C, and D, the employer may properly give A lighter punishment than it gives the others for the same offense, and this does not constitute improper discrimination.

 

Note 4: Suppose that the record of the arbitration sharing [sic] establishes firm “yes” answers to all the first six questions.  Suppose further than [sic] the proven offense of the accused employee was a serious one, such as drunkenness on the job, but the employees’s [sic] record has been previously unblemished over a long, continuous period of employment with the employer.  Should the employer be held arbitrary and unreasonable if it decided to discharge such an employee?  The answer depends, of course, on all the circumstances.  But, as one of the country’s oldest arbi­tra­tion agencies, the National Railroad Adjustment Board, has pointed out re­peatedly in innumerable decisions on discharge cases, leniency is the prerogative of the employer rather than of the arbitrator, and the latter is not supposed to substi­tute judgment in this area for that of the employer unless there is compelling evi­dence that the employer abused its discretion.  This is the rule, even though an arbitrator, if he/she had been the original “trial judge,” might have imposed a lesser penalty.  Actually the arbitrator may be said in an important sense to act as an appel­late tribunal whose function is to discover whether the decision of the trial tribunal (the employer) was within the bounds of reasonableness set forth above.  In general, the penalty of dismissal for a really serious first offense does not in itself warrant a finding of employer unreasonableness.

RELEVANT PROVISIONS OF
SEXUAL HARASSMENT POLICY

1. [The] University prohibits harassment (both general and sexual).  This policy ap­plies to all students, staff, faculty, patients, vendors, visitors, or any other person doing business with [the University].

 

2. Sexual harassment is defined as unwelcome and unwanted sexual advances, re­quests for sexual favors and other verbal or physical conduct of a sexual nature when:

...

c. Such conduct has the purpose or effect of unreasonably interfering with an indi­vidual’s work performance, training or services, or it creates a hostile, intimidating or offensive environment.

....

FACTS

Grievant has worked in the Radiation Health and Safety Department (the “Department”) since 1990.  At the time of his discharge on March 30,1998, he held the position of  Program Technician 1 and was responsible for the dosimetry program.  His discharge was based on the charge that he had sexually harassed a  female employee ("E.D.").

E.D.’s EMPLOYMENT IN THE DEPARTMENT

E.D. graduated from a private Catholic high school in 1993.  She began working in the Department as an office assistant in February 1996.  She reported directly to Grievant and shared office space with him.  She left in late January 1997 to take a job abroad, but became unhappy there and ­successfully sought re-hire from Grievant.  She returned in March 1997, again reporting directly to Grievant and sharing office space with him.  Grievant was responsible for evaluating her and directing her work.

E.D. and Grievant initially worked in the dosimetry program office, along with one to three other employees who also worked in that office on a fairly regular basis.  Employees from other offices also fre­quently came through the office, and equipment used by other employees was kept there.  Shortly before E.D. left in late January 1997, the University reconfigured office space in the Department.  E.D. and Grievant moved to a small office, measur­ing approximately 16'  x 10'.  Their desks were approximately 3' apart.  The employees with whom they had shared office space moved elsewhere, the equipment moved elsewhere, and there was much less traffic through their new office.  When E.D. returned to work in March 1997, it was to the same small, private office shared only with Grievant.

GRIEVANT’S CONDUCT TOWARD E.D.

E.D. testified her first year of reporting to Grievant generally was unremarkable.  Their working relationship was satisfactory and cordial.  Though Grievant occasionally told “dirty jokes” during this period, they were not directed individually to E.D., but rather were generic jokes told to whomever was in the office at the time.  After the move in early January 1997 and until E.D. left the University in late January 1997, their working relationship remained satisfactory.

The first month after E.D.’s return in March 1997 also was uneventful.  She testified Grievant began making offensive comments in approximately April.  Some of these com­ments were of a sexual nature.  She testified she attempted to ignore the comments.  However, she concluded the situation was hopeless after Grievant returned from a sexual harassment training (discussed further infra) and commented he had learned he was not working hard enough to sexually harass her and would have to try harder.  She testified the last straw was in January 1998, when the President Clinton/Monica Lewinsky scandal broke.  At that time, Grievant suggested she have an affair with him so that, when he became famous, she could make money from it.  She ran from the office crying.  A co-worker intercepted her and learned the cause of her distress, then told her to call the Union and a lawyer.  Both the Union Representative and the lawyer suggested she file an Affirmative Action complaint.

E.D.’s COMPLAINT AGAINST GRIEVANT

E.D. filed a written Complaint with the University Affirmative Action/Equal Opportunity Division, Human Resources on January 29, 1998.  In her Complaint, she alleged Grievant had sexually harassed her.  She submitted a handwritten list of the comments he had made to her, including the following remarks:

·                     [after Grievant sold his truck] “How much of this will it take for you to spend weekend with me?  Can you figure a way to get this $ out of my wallet.  You’re a smart girl.”

·                     [in commenting on the Clinton/Lewinsky scandal] “This is what you can do to make $. ... I’m gonna do you a favor, let you have an affair with me so you can make $ off it when I make it big.”

·                     [after attending sexual harassment training] “I found out I’m not working hard enough to sexually harass you.”

·                     Various comments to the effect that she would make a good stripper but needed more curves.

·                     Various discussions of his visits to strip clubs.

·                     [after he received an e-mail from a returning male co-worker asking him to find him a woman] “Do you think you can help us out with this? ... Come on, don’t you want to find a man?”  Also suggesting she let the co-worker move in with her.

·                     Comments regarding what she needed to do to find a man, including, “If you want to find a good man, you have to know how to please him.”

·                     [when Grievant brought to the office a worksheet on stress relief he had received at a DUI class] It says touching and feeling is good for stress relief.  “I think I could use your help on this, my wife doesn’t do a good enough job.”

·                     [after she asked whether he needed anything else done] “You could give me a massage.”

·                     “I bet you can’t guess what my [computer] password is -- it starts with a “w,” ends with an “e,” and is a word for a woman.”[1]

·                     Various comments about her weight and lack of curves, and comments that men like curves.  In that vein, suggesting she attend a campus program on overeating.

·                     [after they both listened in the office to a talk radio segment about premarital sex] “Are you listening to that?  Do you hear what they’re saying?”

·                     Discussions of his experiences with oral sex.

·                     [when E.D. called in sick] “Are you pregnant?”

E.D. testified Grievant made some of these comments repeatedly, and that he told her about his outings to strip clubs and discussed his first experience with oral sex.

THE UNIVERSITY’S INVESTIGATION OF E.D.’s COMPLAINT

Equal Opportunity Specialist Richard Loudd began an investigation on the day of E.D.’s complaint by interviewing her.  Loudd asked her whether she had reported the problem to Grievant’s supervisor, Dr. Lawrence Winans.  E.D. said she had not because in her opinion Dr. Winans was “not supportive of sexual harassment issues.”

E.D. reported Grievant made offensive comments to her on an almost daily basis, sometimes multiple times in one day.  E.D. told Loudd that when Grievant made offensive comments to her, she would attempt to complete the task she was working on, but often would have to leave the office to compose herself.  When Grievant asked E.D. for a back rub, she was upset, made no oral response, and left the office.  She did the same in response to Grievant’s comments about her being able to get rich by having an affair with him.   E.D. told Loudd that when Grievant asked whether his former co-worker could stay with her, she responded, “Why are you saying this to me?”  Grievant responded, “I'm just trying to help you out, get you a good man.”

E.D. reported she was upset by all of Grievant’s sexually-related comments to her.  At the end of her January 29 interview with Loudd, E.D. told him, “I can’t stand it anymore.”

Loudd interviewed Grievant on February 3 for approximately one hour and got his response to E.D.’s report.  According to his notes, Grievant denied making the “stripper” comments but admitted some of the other comments; however, he placed the latter in the context of what he believed was a friendship between the two of them.  Grievant reported that just before the conversation he surmised E.D. was referring to, he had overheard E.D.’s office telephone call with a female friend about the two of them going with some male friends to a club where women were stripping.  Grievant reported he said to E.D. when she hung up that if she wanted “to make a lot of money, I understand that those dancers make a lot of money.”  E.D. responded that her “mom would never approve of that.”  When a certain song was on the office radio, Grievant reported he said, “I stopped for a beer last night and one of the dancers was dancing to that song.”

Grievant explained that after he had sold his truck, he showed E.D. some new $100 bills.  According to Loudd, he reported that he “might have said, ‘Clever women could get that out [of my pocket]’.”  He said he could not “recall the exact statement.”

Loudd noted that Grievant said he often made “light, humorous” statements to E.D. in jest.  He said she gave no indication of being bothered.  Grievant explained he had been the subject of an EEO com­plaint brought by a co-worker “seven or eight years ago,” and was involved in a more recent EEO incident as well. He said that, although he had received no discipline as a result of those matters, he behaved with more caution since then.  Grievant said he had told E.D., “Sometimes I say things off the wall that are O.K. with me, but may not be O.K. with you—just let me know.”  He recollected E.D. responded, “Wouldn’t be a problem.”

Grievant admitted telling E.D., “if she really wanted to have fun, go to a country/western bar to meet some cowboys,” but said it was in the context of knowing that E.D. was having problems with her boy­friend.  Grievant told Loudd that E.D. had asked him about a male job applicant’s age, marital status and looks.  In this context, Grievant recalled saying to E.D., “If I find you a boyfriend, then you’ll have to find me a girlfriend.”

Grievant reported that “most” of his conversations with E.D. were “interactive,” and that “many” of the conversations were started by E.D.  Grievant’s statements “did not come out of the blue—they were part of a conversation between two people—not intended to be of a sexual nature.”

Grievant explained he was joking when he discussed the former co-worker's need for a girlfriend and a place to live, and when he asked E.D. to let the former co-worker stay with her.  She responded, “Why don’t you let him stay at your place?” to which he answered, “I’m his supervisor, it wouldn't look right.”

Grievant confirmed he had asked E.D. to give him a back rub, but explained he said it “just to see what her response would be.”  Grievant said he never expected E.D. to give him a back rub, and that he did not believe she was upset.  Grievant denied making any statements to E.D. about oral sex, and denied he made any statement about his computer password.  He admitted he “teased” her about being “skinny," but denied making any comments about body curves.  Grievant said the two of them would make personal comments about each other, such as E.D. commenting about Grievant’s age.

Grievant confirmed he had suggested to E.D. in January 1998 she could make money by having an affair with him if he later became famous and she then wrote about it.  She responded, “no way.”  He “wasn’t expecting that response,” so he “dropped it.”  Grievant explained to Loudd that E.D. had “missed the point —it was a ridiculous statement—what are the chances of my getting famous—unlikely.”  Grievant noted E.D. “had responded differently in the past to his off-the-wall comments,” that in the “last two or three weeks,  she was not the same.”  She had mentioned to him that the bank returned a check; he “gave her advice on how to handle [it].”  He noticed she was “moody” during this period and “under some stress.”

Grievant did not recall asking E.D. if she was pregnant, but did recall that on one occasion when she called in sick, he had asked her if she had been “partying at Copper Penny.”  Grievant explained that “in most of these conversations, my perspective was more from a parental view rather than a sexual one.”  He emphasized he never touched E.D. or tried to have an affair with her.  

Grievant pointed out E.D. sent him an e-mail on Bosses Day in which she said how much she ap­pre­ciated working for him.  Grievant wondered if E.D. “is being coached by someone” about her Complaint.

On February 4, the day after his interview with Loudd, Grievant submitted a written “Response To Allegations Of Sexual Harassment.”  It states in pertinent part:

... I ... have never tried to date anyone working at [the University].  Affairs within a working environment often lead to problems.

 

I have never been accused of sexual harassment before now.  I have been accused of other types of harassment at [the University], but I believe it was because I made the person mad and it was their way of getting back at me.  Communication and misunderstanding was a factor.

 

In response to the allegations, I am going to attempt to establish the type of working rela­tion­ship and environment [E.D.] and I had.  I try to maintain a relaxed environment and use humor as one of the tools.  Sometimes I throw out a ridiculous comment, suggestion, or ques­tion, just to get an expected response.  Like when I tryed [sic] to convince her she should have a fun weekend at the Farm Fair in Hillsboro with horse pulling contests, etc.  Or when we could have fun going to a Country Western dance.  This would be similar to asking someone to go skydiving who is deathly afraid of heights.  Picking out things the person hates the most could hardly be interpreted as trying to have an affair.  And I fail to see the sexual implication in any of this.

 

To focus on one or two comments in any isolated moment in time can result in a distorted picture.  Not hearing the “exact” words and the emphasis used in a statement can change the interpretation of that statement.  The conversation prior to the stated remark can result in a different conclusion than if the statement is heard alone.

 

Shortly after [E.D.] started working for me I told her about the other problems.  I informed her that I joke and make off the wall comments sometimes.  I asked her to please let me know if anything I said bothered her.  She said, “That would not be a problem,” or something very close to that.  [E.D.] has never voiced on [sic] objection to what I have said, and never told me to stop talking about any subject.

...

On “Bosses Day,” which I believe was in December 1997, I mention[ed] that Dr. Winans had gotten a card and I felt bad because I didn’t get one.  When I checked my E-mail the next morning there was one from [E.D.].  She apologized for not getting me a card but wanted me to know that she liked having me for a boss.[2]  Later that same morning I thanked her for the E-mail and she again told me verbally that she liked working for me and that she appreciated things I had done for her.

...

We discussed a lot of personal problems over the two years....We offered each other advice, opinions, or was [sic] just there to listen as a friend.  We also made teasing comments about ... things.

 

I did not notice any change in [E.D.’s] attitude until early January [1998].  She mentioned that a check had been returned to the store by her Bank.  She indicated that she wasn’t feeling good.  She looked depressed but I thought it was because of the money problems and not feeling well.

 

I have a lot of respect for [E.D.] and believe she is a good person.  At this time I am com­pletely convinced that [E.D.] would not, by herself, make these allegations and try to harm and jeapardize [sic] my job at [the University].  If [E.D.] truely [sic] believed I was trying to have an affair, all she would have had to do was say so, which I told her to do in the beginning.  She made it clear that she didn’t want to listen to Country Western stations on the radio.  We don’t listen to Country Western stations when she is in the office.  Any other matter could have been handled just as easily.  I firmly believe she is being coerced by a coworker, a friend, or her boyfriend.  Until it is found who is behind this, the motive will not be clear. [E.D.] is not the type of person to let something like this go for several months.  If she truely [sic] believed she was being harassed back in July of 1997, she would have confronted me then.

...

I believe that [E.D.] and I can still work together and be productive in the department.  I do not believe that [E.D.] truely [sic] looks at me as the person that is trying to be portrayed. [E.D.] and I are very different and I know, as does [E.D.], that we would never have dated, even if I was her age and not her supervisor.

Grievant submitted a second memo the next day.  That memo provides in pertinent part:

...I went to the class at [the University] on sexual harassment and feel that I understand what it is.  I have been very careful to not touch [E.D.], even accidentally.  I avoid getting to [sic] close by usually asking her to hand me something if reaching for it would cause us to touch, even though it interrupts her work and she would have to stand up to get the item.  I always looked for facial expression or body language which would indicate that she did not like some­thing I was saying.  I saw no response which would indicate that she was offended by what I was saying and there was never even once during her entire employment that she voiced any dislike about the content of what was said in her allegation statements. [E.D.] did voice her dislike for Country music, cowboys, farm boys, guys who wear ball caps, sports, and guys who like sports.  Why didn’t she voice a dislike for the items in the allegations?

 

We did share opinions, likes, and dislikes about subject matter on the radio and other news items we shared.  We did share some things of a confidential nature.  I also overheard things when she was talking to a friend in my presence that I believe she would only share with a trusted friend.  I always felt there was a mutual trust between [E.D.] and I [sic].

 

About the joke of what is a five letter work that starts with “w” and ends in “e” that means some­thing about a woman.  I have told every joke I hear to my wife.  I asked her about this one and she doesn’t remember ever hearing it either.  I know the answer is not what comes to mind first.  Maybe [E.D.] knows the answer and would share.  I feel she has me mixed up with someone else.

 

Several things don’t add up or make sense.  If [E.D.] felt that something I said several months ago was harassment, why didn’t she (1) Say something to me at that time to stop it, or (2) Write it down at that time with date and exactly the words that were said, instead of waiting until January 1998.  What she wrote in January 1998 was not always the exact words.  What happened to cause [her] to write these in January after telling me on “Bosses day” that she enjoyed working for me and appreciated what I have done for her?

...

 

The working environment that Dr [sic] Winans has extablished [sic] and maintains is very relaxed.  It is a friendly open door environment which promotes teamwork and openness among coworkers and subordinates.  Dr [sic] Winans would not permit any type of harass­ment in the workplace.  I understand the rules and would not intentionally break them.  If my coworkers observed any situation or heard anything that could be labeled as sexual harassment, I believe they would have confronted me or would have said something to Dr. Winans if they felt uncomfortable talking to me about it.  There are some people in the office who tell me jokes.  There are some people in the office I tell jokes to and some that I would never tell a joke to.  You gain peoples [sic] trust and you learn to trust people.  The ideal is to trust everyone until you find out who can’t be trusted.  Unfortunately, that philosophy is very dangerous in the workplace today.  Trusting no one is not a healthy philosophy either.

 

My working relationship with [E.D.] included confidentiality and trust.  We both shared personal things which we would not have shared with the general population at [the University].  I do not feel that [E.D.] is the type of person to break that trust without a very good reason.  That is why I am reasonably certain that she was influenced by someone else and lead [sic] to believe that this was the right thing to do.  It is unfortunate that the person who talked her into doing this did not know the kind of working relationship that [E.D.] and I had.

 

Loudd interviewed E.D. again on February 11.  He discussed with her Grievant’s responses to her Complaint.  His notes reflect that she countered in pertinent part:

·                     She did not share personal information with Grievant, other than that she had a boyfriend.  She told him this in “defense of the sexual comments—‘need to get you a man.’”

·                     She and Grievant had office conversations regarding radio talk show topics, news programs, and the like.  “When the conversation became sexual in nature,” she “would either not respond or move away.”

·                     She never spoke about sexual matters with him.

·                     She recalled “on occasion, when [Grievant] was telling dirty jokes, I told him ‘I didn’t want to hear it.’”

·                     She did not have a “close relationship” with Grievant; “he might have felt close, but I certainly did not.”

·                     She “did not laugh at any of his jokes or comments.”

On February 19, 1998, Loudd sent a “Step 2 Grievance Report and Recommendation” (“R&R”) to Grievant’s supervisor, Dr. Winans.  Loudd sent copies of the R&R to, among others, Grievant, E.D., and David Blair, the University Director of Labor Relations.  The R&R summarized the incidents on which Grievant and E.D. agreed, and concluded:

... [Grievant] states that it was not his intent to offend [E.D.].  He further states that many of the statements were made during conversations with [E.D.] and that she participated in the con­versations. [Grievant] states that at no time did [E.D.] indicate to him that any of the state­ments were offensive to her.  [E.D.] disagrees.  [E.D.] states that on at least one occa­sion she did tell [Grievant] to refrain from telling dirty jokes, and adds that she would usually walk away from [Grievant] when she believed that a conversation was becoming sexually charged. 

 

[The University] policy prohibits sexual harassment. [Excerpts from the policy.] Hostile or offensive en­vironment sexual harassment is unwanted and unwelcome activity of a sexual nature that is severe and pervasive enough to create, for a “reasonable woman,” a hostile or offensive environment that interferes with an individual’s work.  The fact that [E.D.] had to walk away from her work area, on repeated occasions, in order to escape the sexually charged conversations meets the test of hostile or offensive environment.

 

Consideration must be given to the special liability that accrues to organizations when lead workers, supervisors, managers, etc. engage in any type of sexual harassment activity; hence the requirement that they refrain from this type of activity.  Additionally, the fact must be considered that [Grievant] has previously had gender-based harassment complaints lodged against him; and has been counseled, trained and warned not to repeat such activity.

 

RECOMMENDATION:

 

Given the evidence above, I believe the [University] policy prohibiting sexual harassment has been violated by [Grievant].  Therefore, I recommend the necessary and appropriate level of disciplinary action be given, up to and including termination of employment.

On February 25, 1998, Director of Labor Relations Blair sent Grievant a “Notice Of Pre-Disciplinary Hearing.”  That Notice placed Grievant on Administrative Leave Without Pay pending completion of the pre-disciplinary hearing process.  It noted E.D. had filed a complaint and referenced the R&R and the findings contained therein.  It made the following charges:

1.                   Failure to abide by counselings, training, and warnings stemming from earlier gender-based harassment complaints.

2.                   Creating a hostile, intimidating, and offensive work environment.

3.                   Repeated violation of the University’s policy prohibiting sexual harassment.

The Notice of Pre-Disciplinary Hearing also warned that the charges could result in discharge if they were found to be true, and scheduled a pre-disciplinary hearing for March 6, 1998.  At that hearing, Grievant was represented by a Union Representative.  According to Blair, Grievant repeated much of what he had told Loudd during the investigation, and added the following points:

·                     It was E.D. who had “created the personal environment” in their shared office;  he gave her advice about how to get away from her boyfriend as “her supervisor.”

·                     His attendance at the sexual harassment training was “voluntary.”

·                     The “finding girlfriends/boyfriends” conversation was started by E.D. who said to Grievant, “You should find me a boyfriend,” to which Grievant replied, “O.K., then you need to find me a girlfriend.”

·                     Grievant “also supervised” [another] employee.

·                     Grievant made the post-harassment training comment to E.D. as a "joke" -- “we both knew I hadn’t and wouldn’t harass her.”

·                     Grievant shared the stress relief worksheet from his DUI class with E.D. because he “knew she was under stress.”

·                     Grievant would “never have even allowed her to touch me”; he “did not want to lose [his] job.”

·                     Grievant told E.D. she could get rich by having an affair with him because he knew she was having financial troubles.  “She said nothing after” I said it; “I knew I’d better drop it.”  This was the “only occasion where her response was obvious.”

·                     Grievant’s teasing of E.D. about her being skinny went along with her teasing him about his age.

Following the pre-disciplinary hearing, a Labor Relations employee interviewed eight potential wit­nesses, some of whom had been identified by Grievant.   Five witnesses (all women) recalled having heard Grievant tell dirty jokes, tease E.D. about her weight, and tell E.D. she needed a cowboy for a boyfriend.  Three of the witnesses (two men and one woman who described herself as a “social friend” of Grievant’s) recalled having heard both Grievant and E.D. discuss same-sex marriages, had no recollection of Grievant speaking negatively about women, or were not familiar with the Grievant's workplace conduct toward E.D.

Blair interviewed E.D. on March 12, 1998.  She repeated much of what she had told Loudd during the initial investigation, and added the following points:

·                     She is a “quiet person;” her silence should not have been “construed as acceptance.”

·                     As the situation was escalating, E.D. “had been looking [elsewhere] for work.”

·                     “He [Grievant] went too far; I decided I wouldn’t let this go any more.”

·                     She perceived Grievant to be her direct supervisor, Grievant told her he was her supervisor, and Grievant's supervisor “never said anything to the contrary.”

·                     She “never asked him [Grievant] to find [her] a boyfriend.”

·                     When Grievant had the cash in his pocket from having sold his truck, he said to her, “Come on, you’re a smart girl, I bet you can find a way to get this out of my pocket.”

·                     She “never did anything to accept him -- he repulsed me.”

·                     He did say to her once, “If you find my jokes offensive, tell me.”  And though she “refused” a joke [i.e., indicated she did not want to hear it ] he later resumed telling dirty jokes to her.

GRIEVANT’S WORK HISTORY

Grievant had an excellent performance record.  He had no record of prior discipline.  However, he had been involved in three trouble­some incidents.  Although those incidents were not made a part of his official personnel file, the University considered them in deciding on the appropriate level of discipline.

The earliest  incident, in 1990,  involved a mock memorandum that contained an acronym-wordplay out of the word "rape."  Grievant had received the memo from another employee; he passed it on to another employee who welcomed it, but an employee who found it offensive became aware of it.  Grievant received a written reprimand for this incident.  The author of the reprimand, a supervisor of a group other than Grievant's, chose not to place it in Grievant's personnel file.  Grievant agreed with that supervisor at the time that this type of humor was inappropriate in the workplace.

In 1992, employee E.H. filed a complaint against Grievant, alleging Grievant had falsely accused her of stealing money, was verbally abusive to her, and had told her dirty jokes that were degrading to women.  Grievant disputed some of the allegations; he asserted E.H. had laughed at the jokes, but that in re­sponse to her complaint “humor in the office has been curtailed.”  The University "Affirmative Action Complaint Log" for this complaint indicates "Respondent reprimanded."  However, there is no disciplinary notice in Grievant's personnel file, and Dr. Winans testified he did not reprimand Grievant.  Instead, Dr. Winans considered the matter closed when Grievant and E.H. were able to resolve their differences.

In 1997, employee M.B. filed an internal complaint alleging Grievant was unduly critical of her work due to her gender.  The matter was referred to internal mediation.  Loudd, who had received the complaint, considered the matter to be a "pre-harassment" incident, that there were "warning signs present that ... could some day be sexual harassment."  He therefore recommended Grievant attend sexual harassment training.

Grievant voluntarily attended sexual harassment training in April or May 1997.  At the training, he received a workbook containing the University policy, as well as worksheets and articles covering various sexual harassment principles.  The worksheets included one entitled “Why victims do not speak out.”  The materials also included an article discussing the reasons for under-reporting of sexual harassment.  The training included use of a videotape titled “Subtle Sexual Harass­ment.”  The videotape contains various scenarios of sexual harassment.  Generally, the trainer stops the tape after each scenario and has an inter­active discussion with the participants, asking them questions such as what they thought the scenario showed and what a manager should do in such a situation.

THE DISCHARGE DECISION

Blair met with Loudd, Dr. Winans, and Dr. Winans' supervisor Steve Forrey.  They reviewed the results of the investigation and reached a consensus Grievant should be terminated.  Blair issued a “Notice Of Dismissal” on March 30, 1998.  The Notice of Dismissal sum­marized the background of the mat­ter, re­iterated the charges in the Notice of Pre-Disciplinary Hearing, and made the following “Findings Of Fact”:

·                     You purport to have had a very close and personal relationship with [E.D.] in having had the opportunity to have discussed her relationships with others as well as her financial problems.  You acknowledged the fact that ever since an incident/ complaint which occurred in 1992, that you understood that you have to know who you can trust.  Your statement was made in the context of having established a relationship with [E.D.] and believing that she was approving of your comments and actions within your close work environment. [E.D.] reports that she has never encouraged a relationship with you or an approval of your comments or actions.  None of the witnesses interviewed were able to confirm your version of your working relationship with [E.D.].  Many witnesses were able to confirm that you, not [E.D.], discussed personal matters in [E.D.’s] presence

·                     You acknowledge having been issued a “counseling” memo from Jim Joyce dated August 16, 1990 regarding inappropriate workplace behaviors and a resolution to a gender-based complaint occurring 1992.  The later [sic] appeared not to have a conclusion from your perspective and thus you would not consider it to be a coun­seling or a disciplinary action.  You also acknowledged your voluntary presence in a University sponsored training program on Diversity and Sexual Harassment in the workplace in April or May of 1997.  You purport to have made a “joke” to [E.D.] regarding your attendance at such program and that you would have to try harder.  You reported that you did not recall her reaction to this statement.

·                     You purport that some time early in [E.D.’s] employment in the department that you informed her that you had been accused of a “gender-based complaint” and that if you should ever offend her that you were requesting that she come to you first so you would not have to spend time explaining the situation to others outside the department. [E.D.] recalls you discussing a racial complaint that occurred in the department and that you once asked her if she was bothered by dirty jokes.  She states that on this occasion she replied in the affirmative and you did not tell the joke.  She further states that you later continued to tell dirty jokes in her presence in spite of her earlier response.

·                     In earlier statements provided the Affirmative Action / Equal Opportunity Division, you purport to have included [E.D.] in a conversation with a friend about you, your friend, and [E.D.] all going to a strip club.  Purportedly you only acknowledged that if she wanted to make a lot of money that you understood these dancers did. [E.D.] recalls the conversation differently where you suggested to her that she become a stripper and thought she’d be a good one.  She also recalls your comments about her looking good in tight pants noting that she did not have the curves, but would be a good stripper.

·                     You noted at your pre-disciplinary hearing that you would never ask a woman at work to touch you even for a back rub as you knew that such activity would never be permitted or understood. [E.D.] recounts that on at least one occasion you did in fact ask her for a back rub as she was preparing to leave the office.  In earlier statements provided the Affirmative Action/Equal Opportunity Division you con­firmed that you had made such a statement about [E.D.] helping you out with a back rub.  You reportedly did so just to see her response.  You reported that you never expected her to actually give you a massage and that you did not believe that she was upset with you over the question.

·                      In earlier statements provided the Affirmative Action / Equal Opportunity Division, you were unable to recall any exact statements you may have made to [E.D.] re­gard­ing cash you had on your person after having sold your pick-up truck.  You did suggest that you might have said something about a clever women [sic] getting that money out of you.  [E.D.] recalls very clearly that you inquired with [sic] her if she could find a way to get the money out of your wallet.  She claims that you asked her that question repeatedly throughout the day.  At one point [E.D.] recalls you asking her if she would come away with you for the weekend in your recreational vehicle.

·                      In earlier statements provided the Affirmative Action / Equal Opportunity Division, you purport to have made a "comment" during the week of January 19th [1998] wherein you noted that if [E.D.] had an affair with you that when you became rich and famous she could sell her story and get rich.  Purportedly she said "no way," a response you characterized as "not expecting" and you dropped the matter.  [E.D.] re­calls the incident differently noting that you began the conversation by not­ing that you were going to do her a favor.  She reports that she did not respond to your comment at which time you repeated yourself and added a reference to your letting her have an affair with you so that when you make it big, she can make money off of you by selling her story.  She also recalls similar sexist remarks being made through the balance of the day such as, "women are here to please men."

You and your representative characterized your actions as being those which [E.D.] had a right to ask and expect to "stop."  You did not deny many of the above noted events, but re­lied on a defense which included the fact from [Grievant's] perspective that he and [E.D.] had mutually engaged in such "banter."  Your suggestion was that you should not be disci­plined since you allege that [E.D.] did not specifically give you notice to stop such behavior.

The Notice of Dismissal concluded:

Based on the evidence before this office, it appears that your actions were both egregious in nature and of the level and repetitiveness for which no employee of the University should be required to tolerate.  You have acknowledged a correct understanding as to the expecta­tions of the University upon all employees relative to sexual harassment and the con­se­quences for those that would choose to violate such policies.   No evidence exists to support your excuse that [E.D.] willingly accepted your actions as you have suggested or that she entered into such similar behavior as playful banter.  As your behavior has not been excused, the University finds you to be in violation of the charges levied against you.

OTHER MATTERS RAISED BY THE UNION

The University has investigated charges of sexual harassment involving at least two other employees.  One involved a consensual romantic relationship between co-workers that turned sour.  Thereafter, the female employee (“Ms. P”) complained that the male employee (“Mr. G”) was creating a hostile work enivironment.  Ms. P complained that Mr. G suggested he would like to see her participate in a Druid ceremony involving dancing naked around a fire.  Mr. G received a reduction in pay and a written warning.

The second instance involved allegations that an employee (“Mr. P”) who was “cognitively chall­enged” had sexually harassed a co-worker.  Other co-workers, both male and female, had also com­plained about unwelcome touching by Mr. P.  According to Blair, it was difficult to determine what happened, or whether Mr. P understood the University’s policy.  Mr. P received a last chance agreement and a  require­ment that he get appropriate therapy. 


     POSITION OF THE UNIVERSITY

Grievant was discharged for just cause.  He repeatedly subjected a subordinate to aggressive sexual comments and propositions without any indication from her they were welcome, something any reasonable person would know is unacceptable under any circumstances.  He has admitted many of the sexual con­ver­sa­tions and propositions recounted by E.D.  His offenses were a clear violation of the University's written sexual harassment policy.

Grievant's misconduct was especially flagrant because he was on notice such behavior was unac­ceptable.  In 1997, he had undergone thorough sexual harassment training in response to a gender-related complaint lodged against him.  From the comprehensive  training, he knew what sexual harassment was; he knew his conduct, especially due to having been directed against a subordinate, violated the University sexual harassment policy; and he knew his conduct was grossly inappropriate.

 E.D.’s failure to confront Grievant did not entitle him to sexually harass her with impunity.  In his training, he specifically had been taught an imbalance of power between a supervisor and subordinate can result in the subordinate remaining silent, despite being the victim of unwelcome sexual comments.

The severity of Grievant's misconduct was apparent from the testimony of his victim.  Grievant's remark upon his return from sexual harassment training caused E.D. to feel the situation was hope­less.  Su­per­visors, who set the tone of the workplace, have a particular duty not to engage in sexual harassment.  Grievant has not expressed any remorse or an understanding he bears responsibility for his gross misconduct.

Sexual harassment is a dischargeable offense. Grievant is not entitled to more notice of appropriate conduct.  His misconduct took place after earlier incidents and training that put him on the notice progressive discipline is meant to provide.  The problem is, at best, that he is incapable of comprehending appropriate boun­daries with subordinates, or, at worst, that he chooses willfully to violate those boundaries.  Reducing discipline would be an act of leniency.  The authority to grant leniency is expressly reserved to the Univer­sity.  The Arbitrator has the author­ity to determine only whether the refusal to grant leniency was reasonable.

Grievant was not subject to disparate treatment.  The two matters presented by the Union are com­pletely distinguishable.  The incident with Mr. G involved a co-worker, not a supervisor and subordi­nate, and a consensual relationship.  Mr. G later made a single sexually-charged comment to his former paramour that she found offensive.  The incidents with Mr. P also involved complaints from co-workers rather than sub­ordinates.  In determining what level of discipline was appropriate for Mr. P, the University took into account that he may not have been on appropriate notice and may not have been able to understand the import of his actions.  The Union's conten­tion of disparate treatment fails because the past disciplinary actions differ and there is no other evidence of disparate treatment.

The pre-disciplinary process was not flawed.   The Union's argument, raised for the first time at the arbitration hearing, was that the Notice of Pre-Disciplinary Hearing did not satisfy Article 10.2 of the Agreement, which provides that such a Notice "shall include the known complaints, facts and charges."  The Notice of Pre-Disciplinary Hearing, standing alone, included sufficient information to satisfy Article 10.2.  Moreover, it referenced Loudd's previously sent R&R, which had set forth additional specifics.

Even if the Notice of Pre-Disciplinary Hearing was technically deficient, there is no evidence of any prejudice to Grievant.  The purpose of Article 10.2 is to ensure a grievant is on notice as to what subjects will be covered at the pre-disciplinary hearing.  As a result of having been interviewed by Loudd and having received the detailed R&R, Grievant was on full notice of the complaints, facts, and charges against him in advance of the pre-disciplinary hearing.

Even if there were any merit to the Article 10.2 argument, the Union waived it by failing to raise it at the pre-disciplinary hearing.  If the Union had raised the argument at the pre-disciplina­ry hearing, any technical defects in the Notice of Pre-Disciplinary Hearing could have been cured.  The Union chose to participate in the pre-disciplinary hearing, and waited until the arbitration hearing to raise a procedural objection that caused no prejudice to Grievant.

     POSITION OF THE UNION

 The Union does not dispute that E.D. was a victim of some level of sexual harassment and the harassment caused her to suffer emotional distress.  Grievant did not intend to harass E.D.; rather, he mis­judged the situation.  He crossed the line from welcome to unwelcome discussions.  The Union agrees the University had an obligation to make any harassment stop and to require Grievant to take responsibility for his actions.  The grievance should be sustained, however, because the University failed to follow proper pre-hearing procedures or take appropriate steps to prevent the harassment.

The notice requirement of Article 10.2 is a vital aspect of the Agreement.  It ensures not only procedural just cause but also compliance with constitutional guarantees to due process.  The min­i­mum com­ponents of due process when the loss of public employment is at stake are:  (1) notice of the charges; (2) an explanation of the evidence; and (3) an opportunity to respond to the charges.   Article 10.2 codifies these due process requirements.

The Notice of Pre-Disciplinary Hearing did not comply with Article 10.2 because it did not include all the specific factual allegations relied upon by the University in discharging Grievant.  These include the "stripper" remark, the allegation about getting some of Grievant's "truck money," and the alle­ga­tion about going away with him for the weekend.  When Blair relied upon these allegations to reach the decision to terminate Grievant, he violated the Agreement.  Moreover, the University relied upon the 1990 and 1992 incidents as the basis for concluding Grievant had failed to abide by prior warnings and reprimands.  These incidents also are not referenced in the Notice of Pre-Disciplinary Hearing.

Loudd testified that part of the reason he recommended Grievant be terminated was a "pre-harassment" situation Grievant had been involved in with employee M.B.  However, at no time did the University notify Grievant in writing that the M.B. situation was part of the factual basis for his termination.  Accordingly, Grievant had not had an opportunity during the investigation to comment why that situation should not be counted against him.

The 1990 incident resulted in a written reprimand to Grievant that did not go into his personnel file.  Under Article 14.2 of the Agreement, when information goes into an employee's personnel file, the employee is given the right to sign the document and attach rebuttals.  Additionally, under Article 14.5 of the Agreement, warnings and reprimands "shall be removed" after two years from an em­ploy­ee's file upon the employee's written request.  Grievant's 1990 reprimand was not specifically referenced in the Notice of Pre-Disciplinary Hearing; however, the University relied on the reprimand as part of its case.  By relying on a memorandum not in the Grievant's personnel file, and by not putting Grievant on express notice the memo­randum would be at issue, Grievant was deprived of his contractual right to have the reprimand removed from his record prior to the University's decision to terminate him.

For these reasons, the University's violations of the notice requirements of Article 10.2 were serious and prejudicial.  The grievance should be sustained for failure to provide proper notice to Grievant of the "known complaints, facts and charges" against him.

Additionally, the University violated Article 10.1 of the Agreement.  Sexual harassment is not sepa­rated in the Agreement as a special category of conduct that does not require attempts at disciplinary correction.  It should be treated as any other misconduct.  Grievant and E.D. were co-workers, not supervisor and subordinate.   In co-worker harassment cases, the University and arbitrators consistently apply principles of progressive discipline.  This is true even where the conduct is more severe than it is in the instant matter, such as cases involving unwanted sexual touching.

The University did not follow the principles of progressive discipline when it discharged Grievant.  Those principles require an employer to give an employee the least possible discipline.  Moreover, discipline should be for corrective rather than punitive reasons.

Grievant's personnel file contains no prior discipline.  The 1990 reprimand was not in his personnel file; the 1992 incident involving employee L.H. did not result in formal discipline; and the more recent M.B. complaint was mediated.  Reading the Agreement as a whole, previous incidents can be relied upon only if there is documentation in the employee's personnel file regarding the incident.  The University would not have discharged Grievant but for its mistaken belief that progressive discipline had been used.  It shares a portion of the blame for the situation.  Higher management set the tone in this workplace.  E.D. did not receive training or written information regarding her rights­.  This heightened her feeling of isolation and led her to take ineffective steps in response to Grievant’s conduct.

Grievant should be reinstated subject to a direction that personal discussions are off limits, and subject to one-on-one training by the University’s Affirmative Action counselors.  The University should conduct training of the entire Department, including management, on the sexual harassment policy.  Grievant should be made whole from the date he was placed on unpaid Administrative Leave.

OPINION

PRELIMINARY MATTERS

The burden of proof regarding procedural irregularities falls on the party alleging the irregularities— in this case, the Union.  Procedural requirements are as enforceable as any other contractual requirements.  Indeed, a failure to observe procedural requirements may have a substantive effect on a disciplinary decision.

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 right is the right to be confronted with the alleged misconduct.  The accused employee must have notice of the specific charges and an opportunity to give his side of the story before a final decision is made.  The Agreement specifically provides for such notice and opportunity to respond in the pre-disci­plin­ary phase.  Omission of this step both offends the due process concern of fairness and calls into ques­tion the thoroughness of the investi­gation.

The fact that discipline can be reviewed later in arbitration does not automatically excuse procedural irregularities.  An ­­­employer's obligation to conduct a full and fair investigation is on a par with an employee's obligation to avoid self-help in lieu of the grievance procedure.  It is just as necessary for management to ad­here to contract pro­ce­dures as for employees and the union to do so.  Moreover, a full investigation that complies with due process diminishes the likeli­hood of an im­pul­sive, arbitrary, or misguided decision.  It also permits management to measure the proposed pen­alty against the alleged offense in light of all relevant fact­s, and to consider what response will best address the alleged misconduct.

The University bears the burden of establishing just cause for discharge.  It must show, by clear and convincing evidence, both that Grievant was guilty of misconduct and that the University imposed an appro­priate penalty for that misconduct.  In this regard, the Agreement generally requires progressive discipline “except when the nature of the problem requires more serious discipline....”

An employer need not march lock-step through precisely the same disciplinary steps for similar of­fenses.  Each case must be considered on its own facts.  However, past discipline for similar conduct is always relevant because it is an indicator of the seriousness with which particular misconduct is viewed in this workplace.  Employees reasonably may assume that offenses treated lightly in the past will continue to be treated lightly, absent some notice of a change in standards.  Where an employer imposes varying dis­ci­pline for facially similar conduct, it bears the burden of articulating a logical reason for the variation.

Discipline must be corrective rather than punitive.  An arbitrator has no authority to second-guess the level of discipline merely because the arbitrator would have imposed different discipline. So long as the discipline is within the range of discipline proportionate to the proven offense and the employee's work record, that discipline must stand.  However, if the discipline falls outside that range, or if the offense proven is less serious than the offense charged, then adjustment of the discipline is appropriate.

THE MERITS

No dispute exists that Grievant’s conduct toward E.D. constituted sexual harassment.  The dispute centers around compliance with the contractual notice requirements and the appropriateness of the penalty assessed for the misconduct.  The grievance, on its face, alleged that the pre-disciplinary process was flawed.  Much of that objection concerns reference in the Notice of Dismissal to matters that were not raised in the Notice of Pre-Disciplinary Hearing.  Until the pre-disciplinary hearing, the Union could not have been aware that the University would raise issues beyond those specified in the Notice of Pre-Disciplinary Hearing or R&R.  It thus raised this issue at the earliest opportunity, and cannot be said to have waived it.

DUE PROCESS

Grievant had no disciplinary notices in his personnel file.  The Notice of Pre-Disciplinary Hearing  none­theless charged, inter alia, that Grievant had "fail[ed] to abide by counselings, trainings, and warnings stem­ming from earlier gender-based harassment complaints."  If the 1990 and 1992 incidents had resulted in disciplinary notices in Grievant's personnel file, Article 14.5 would have given him the oppor­tunity to rebut the notices at the time and/or to have each of them removed long before the events in question here.

However, unlike some contracts, the Agreement does not preclude all consideration of items re­moved from per­sonnel files.  Even if the memoranda regarding the 1990 and 1992 inci­dents had been a part of his personnel file, and even if they had later been removed, they would have remained relevant as notice of the University’s expectations regarding conduct toward fellow employees.  Similarly, evidence of the 1997 incident involving M.B. was received only as background to Grievant’s partici­pation in sexual harass­­ment train­ing.  In one sense, it is of little significance why Grievant received that training.  Even if he had received that train­ing with no precipitating incident, the training would have constituted notice of the behavioral standards expected of him.  The Notice of Dismissal, on its face, properly put the 1990 and 1992 events and the sexual harassment training in the context of notice to Grievant, and did not suggest they con­sti­tuted progressive discipline.  Accordingly, the Notice of Pre-Dismissal Hearing and Notice of Dismissal were not flawed with regard to the treatment of these prior events.

The Notice of Dismissal referred to three disputed remarks that were not specifically referenced in the R&R that was incorporated by reference in the Notice of Pre-Disciplinary Hearing.  The omission of these remarks from the Notice of Pre-Disciplinary Hearing reduced Grievant’s opportunity, pursuant to Article 10.2, to prepare a response to those allegations prior to the pre-disciplinary hearing.  However, these allegations were discussed with Grievant during Loudd’s investi­ga­tion, well before the pre-disciplinary hearing.  He thus could not be said to have been surprised by them in the pre-disciplinary process.  Further, they were only three among many reported offensive remarks, including a considerable number that Grievant admits.  With or without the disputed remarks, the admitted comments were sufficient to estab­lish the charge of sexual harassment.  Accordingly, although Grievant did not receive the kind of notice of these specific remarks contemplated by Article 10.2, he was not prejudiced thereby.

In summary, the record demonstrates contractual and due process violations in pursuing the charges against Grievant.  The remedy for such violations is not automatic reinstatement; absent a specific con­tractual provision to that effect, that remedy is avail­able only if the Arbitrator concludes that just cause for discharge has not been established.[3]  Instead, the rem­edy is a cease-and-desist order and, if necessary, such further remedy as may be appropriate to undo the effect of the due process violation.  In this case, no preju­dice has been shown to Grievant, and no additional remedy for these violations is warranted.

JUST CAUSE

The Notice of Dismissal refers to the 1990 and 1992 incidents in the Findings of Fact.  However, as noted above, the context demonstrates they were considered as evidence of notice of the ­­sexual harass­ment policy, rather than as evidence of pro­gressive discipline.  In particular, the Conclusion to the Notice of Dismissal does not rely on progressive disci­pline as a basis for the discharge decision.  Instead, it finds termination appropriate because of the egre­giousness and repetitive nature of the conduct toward E.D.; the conclusion that Grievant under­stood both the expectations in this area and the conse­quences of not meeting those expectations; and rejection of the defense that the conduct was welcome and/or mutual.

The record supports the conclusion that Grievant's comments to E.D. were egregious, both in nature and in frequency.  These were not isolated comments or innocuous references to titillating matters.  They were repetitive, offensive, and at times highly intrusive.  To Grievant’s credit, he admitted making many of the comments reported by E.D.  How­ever, he at no point acknowledged that those remarks were improper.  Instead, his memos cast E.D. as an unwitting pawn who was complaining for reasons other than genuine offense at his remarks.  This response demonstrated that he remained oblivious to the effects of his conduct.  Considering his recent training, this gave legitimate cause for doubt that his behavior could be corrected.

The seriousness of Grievant’s conduct was aggravated by the status differential of the partici­pants.  Although Grievant and E.D. were both members of the bargaining unit, the Arbitrator cannot credit the sug­gestion that they were merely co-workers.  Grievant referred to himself as her supervisor.  He re-hired her, directed her work, and signed her performance review.   Regardless of whether he was a “supervisor” in the legal sense, he exercised authority over her in at least a lead capa­city.  She thus was at a disadvantage in discouraging his unwelcome remarks.  Moreover, his position of authority over her made it rea­sonable for the University to hold him to a higher standard of conduct toward her.

But for the sexual harassment training, some question would exist whether Grievant had sufficient notice of workplace standards to warrant discharge in light of his work record.  The first two events were fairly stale; his perception of those events may well have hindered his understanding of the significance of his “dirty jokes” as a factor leading to all three complaints; and there was only partial closure of the 1992 and 1997 events.  No evidence exists that the University widely disseminated its sexual harass­ment policy or trained employees regard­ing their rights and responsibilities in this area.

However, the sexual harassment training materials Grievant received in 1997 were detailed and comprehensive.  They specifically discussed common behaviors, by both harasser and victim, that were in evidence in this case.  After such training, it was unreasonable for Grievant to assume that he was at no risk in making comments of the sort established in this case.  Simply put, if he chose to make sexually-charged comments and tell “dirty jokes” in the work­place, the training put him on clear notice that he had an obligation to choose his listener(s) carefully.  This he failed to do.

The fact that Grievant never touched E.D. nor asked her to have an affair is not responsive to the charges against him.  Those are not the only forms of misconduct that constitute sexual harassment.  His recent sexual harassment training was sufficient to alert him that conduct of the sort involved here also constitutes sexual harassment.

E.D.’s silence in response to some of Grievant’s comments also does not provide a defense to the charges.  His recent sexual harassment train­ing covered the reasons why victims do not always complain of harassment.  Further, he acknow­ledged receiving some unexpected responses from E.D.  His recent sexual harassment training should have led him to at least consider the possibility that those responses indicated E.D. was bothered by what he had just said, and to adjust his behavior accordingly.  Indeed, even without such training, it is surprising that he did not consider the possibility that a woman only a few years out of high school could be unprepared for discussions of her personal life or the sexual predilections and exper­iences of a man many years her senior, particularly one with authority over her.  This is especially ­so given E.D.’s demeanor, which fully supported her self-description as a “quiet person.”

For all the above reasons, it is concluded that just cause existed for very severe discipline of Grievant.  He had shown himself to be a valuable employee, and it certainly would have been within the bounds of reason for the University to try to correct his behavior through discipline short of discharge.  However, when one considers how recently he had received specific and detailed notice of the University’s sexual harassment policy, and the levity with which he took that notice, it must be concluded that discharge was also within the range of reasonable responses to the repetitive offensive remarks to which he subjected E.D.  Accordingly, just cause existed for his discharge.

Finally, Article 11 of the Agreement requires payment of the Arbitrator’s fees and expenses by the losing party.  Accordingly, the fees and expenses in this matter are payable by the Union.

AWARD

1. The grievance shall be sustained insofar as it alleges that the pre-disciplinary process was flawed.  It shall be denied insofar as it alleges that the discharge was without just cause.

 

2. As a remedy for the violation found, the University shall cease and desist from issuing Notices of Pre-Disciplinary Hearing which do not include all the known complaints, facts and charges against the employee.  As no prejudice has been shown to Grievant from the failure to include such information in this case, no further remedy is warranted for this violation.

 

3. The fees and expenses in this matter are payable by the Union as the losing party.

 

      LUELLA E. NELSON - Arbitrator


[1]           E.D. surmised the word was “whore.”

[2]           The e-mail states in pertinent part: “I just wanted to say happy Boss’s Day and thank you for being a cool boss.  I really appreciate everything, like letting me have my job back...and bringing me stuff from your garden and for everything else.  Thanks....

[3]           Due process violations sometimes preclude a finding of just cause because the nature of the allegations and the information withheld made it impossible for the accused employee to respond to the charges at a time when possible rebuttal information was still available.  This is not such a case.  Grievant knew of both the nature and the source of the charges against him, and had an opportunity to respond both to Loudd and to Blair.  He alone was the source of any possible rebuttal information regarding his remarks to E.D.

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