Health and Science University and American Federation of State, County and
Municipal Employees, Local 328
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
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.
behalf of the Union:
Barbara Diamond, Esquire, Smith, Gamson, Diamond & Olney, 2110 SW
Jefferson, Suite 200, Portland, OR 97201-7712
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
Shall the grievance be sustained or denied; and, if sustained, what
shall the remedy be?
RELEVANT SECTIONS OF AGREEMENT
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.
EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION
[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.
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
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.
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 ....
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. ...
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.
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.
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.
Did the employer give to the employee forewarning or foreknowledge of
the possible or probable disciplinary consequences of the employee’s
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
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.
Were the employer’s rules or managerial order reasonably related to:
the orderly, efficient, and safe operation of the employer’s
the performance that the employer might properly expect of the
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.
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?
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.
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.
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.
4: The employer’s investigation should
include an inquiry into possible justification for the employee’s alleged
4. Was the employer’s
investigation conducted fairly and objectively?
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
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.
At the investigation did the “judge” obtain substantial evidence or
proof that the employee was guilty as charged?
1: It is not required that evidence be
conclusive or “beyond all reasonable doubt.”
But the evidence must be truly substantial and not flimsy.
2: The management “judge” should
actively search out witnesses and evidence, not just possibly [sic] take what
participants or “volunteer” witnesses tell him/her.
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
Has the employer applied its rules, orders, and penalties evenhandedly
and without discrimination to all employees?
1: A “no” answer to this question
requires a finding of discrimination and warrants negation or modification of
the discipline imposed.
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.
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
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.)
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.
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.
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.
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].
Sexual harassment is defined as unwelcome and unwanted sexual advances,
requests for sexual favors and other verbal or physical conduct of a sexual
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.
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.").
EMPLOYMENT IN THE DEPARTMENT
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.
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.
CONDUCT TOWARD 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.
COMPLAINT AGAINST GRIEVANT
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:
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
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.”
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
Discussions of his experiences
with oral sex.
[when E.D. called in sick] “Are
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
UNIVERSITY’S INVESTIGATION OF E.D.’s COMPLAINT
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
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
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.”
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.”
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.”
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.”
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.”
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.”
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.
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
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.”
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
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.
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
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.
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 . 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.
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.
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:
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.’”
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.”
never spoke about sexual matters with him.
recalled “on occasion, when [Grievant] was telling dirty jokes, I told him
‘I didn’t want to hear it.’”
did not have a “close relationship” with Grievant; “he might have felt
close, but I certainly did not.”
“did not laugh at any of his jokes or comments.”
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,
... [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.
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.
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:
Failure to abide by counselings, training, and warnings stemming from
earlier gender-based harassment complaints.
2. Creating a hostile, intimidating, and offensive work environment.
Repeated violation of the University’s policy prohibiting sexual
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
· His attendance at the sexual harassment training was “voluntary.”
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”
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
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.
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
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.
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:
is a “quiet person;” her silence should not have been “construed as
the situation was escalating, E.D. “had been looking [elsewhere] for
[Grievant] went too far; I decided I wouldn’t let this go any more.”
perceived Grievant to be her direct supervisor, Grievant told her he was her
supervisor, and Grievant's supervisor “never said anything to the
“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.”
“never did anything to accept him -- he repulsed me.”
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.
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.
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.
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.
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.
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
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
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.
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 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.
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.
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
In earlier statements provided the
Affirmative Action / Equal Opportunity Division, you purport to have made a
"comment" during the week of January 19th  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.
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.
MATTERS RAISED BY THE UNION
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.
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
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.
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.
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.
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
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.
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
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.
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.
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
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.
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.
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
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.
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.
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
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.
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.
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
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
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.
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.
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.
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....”
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.
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.
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
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.
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.
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
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.
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.
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
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
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.
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
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.
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.”
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.
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.
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.
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
The fees and expenses in this matter are payable by the Union as the
LUELLA E. NELSON - Arbitrator
E.D. surmised the word was “whore.”
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....
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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