Title: Clark County, Washington and OPEIU Local 11
For the Employer:
Foster, Human Resources Director
The Grievant was employed by Clark County, Washington as an Offender Crew
Chief supervising crews of persons sentenced by the court to perform various
tasks within the community upon conviction of a criminal offense. The daily
work, which in Grievant’s case often involved “water quality” issues such
as cleaning public parks and streams, was typically performed out of doors but
was assigned out of an “office” facility known as the Mabry Center in
Vancouver, Washington. On two occasions during the year 2000, Grievant is
alleged to have committed acts of “harassment” of co-workers at Mabry
Center. After the first incident, in May 2000 (involving persistent questioning
of a female co-worker about her personal life) Grievant received a written
warning that similar acts in the future would result in additional discipline up
to and including suspension and/or termination. Exh. C-4. The Employer alleges
that approximately two months later, Grievant committed another act of
harassment (derogatory racial comments directed at a co-worker) during a meeting
attended by several supervisors as well as Grievant’s fellow employees. In
addition, the Employer alleges that after the second incident, Grievant
“mocked” his Employer’s concerns about conduct “offensive” to others
in the workplace, and did so in front of the person who had complained about his
The Employer contends that Grievant’s conduct constitutes just cause
for discharge. Grievant, while conceding that his actions were wrong, contends
that the Employer’s treatment of similar transgressions by other employees
demonstrates that he should have received a four-day suspension and a referral
to “counseling” to enable him to understand and meet his Employer’s
expectations regarding workplace relationships with co-workers.
At a hearing held December 14, 2000 at Hazel Dell, Washington, the
parties had full opportunity to argue the issues and to present documentary and
testimonial evidence, including the opportunity to cross-examine witnesses. The
parties filed simultaneous post-hearing briefs by mail on January 12, 2000,
and upon the Arbitrator’s receipt of the briefs, the record closed.
STATEMENT OF THE ISSUE
At the hearing, the parties stipulated to the following statement of the
issue to be determined:
the termination of Grievant violate the collective bargaining agreement? If so,
what shall the remedy be?
the Union proposed a more detailed statement of the issues in its brief, I find
that the general statement of the question before me, as stipulated at the
hearing, fairly encompasses the Union’s concerns. Essentially, the issue is
whether the County had “just cause” to terminate Grievant. Exh. J-1, §
On or about May 20, 2000 Grievant approached co-worker G. O. after
noticing that she was wearing what appeared to be an engagement ring. Although
O. protested “my personal life is nobody’s business down here,” Grievant
persisted in “congratulating”
her and questioning her about her engagement, wedding plans, etc. until O. broke
down in tears.
She later told Lead Crew Chief S. L. that she intended to “file a complaint on
him if he doesn’t leave me alone.” When L. passed that information along to
Grievant, he responded “I don’t give a fuck.” Supervisor D. P. had to come
in from off duty to deal with the
situation. P. told L. to keep the two employees separated for the rest of the
weekend. After L. pointed out how upset O. was, Grievant took her a
“bouquet” of dead flowers and “apologized.” And although Grievant seemed
remorseful at first, he later said “If they can’t take the kidding, then
they’re just pussies.” In fact, P. testified Grievant was angry that the
situation was even being discussed. During a formal meeting to review the
issues, Grievant maintained that he had “just asked some questions and she got
this conduct, Grievant received a written warning that his behavior was
“absolutely inappropriate and must cease immediately.” Exh. C-4. Further,
the warning provided that “future behaviors of this type may result in further
disciplinary action, which could include suspension and/or termination.” Id.
On July 24, 2000 Grievant attended a meeting at Mabry with co-workers and
several supervisors. During the meeting, co-worker R. S. asked a question that
had apparently just been answered (S. had been conferring privately with another
worker and had not heard the answer). Grievant then said “Clean out your
Puerto Rican ears” and “We’re speaking English here.” There was testimony that
several people in the meeting laughed, and there was no testimony that anyone
rebuked Grievant for his comments. S. complained to supervisor I. G. after the
meeting, however. She asked him to put his complaint in writing, which he did.
Exh. C-6. Others complained as well. Exh. C-5.
Grievant took some vacation days to travel out of state to be with a
dying brother. When he returned in August, G. presented Grievant with a possible
termination letter (Exh. C-3) which she regarded as a sort of “show cause”
communication, i.e., an opportunity for Grievant to provide any information he
wished the County to consider in determining the appropriate discipline, if any.
Exh. J-1, § 18.2.1. Grievant provided G. a letter that contained his commitment
to refrain from behavior that might be offensive to anyone. Exh. U-22. G.
thought Grievant’s commitment was sincere, and she welcomed it. G. Test. That
same afternoon, however, Grievant commented to a co-worker (while the two were
looking at a Sports Illustrated “swimsuit issue”) “I hope I’m not
offending you.” It was reported to G. that this exchange occurred in front of
S. (Exh. C-12, G.’s notes dated August 17), which if true, would support the
notion that Grievant was intentionally deriding S. for having complained.
Grievant, however, claimed that he was merely having a “quiet” conversation
with the co-worker (whose magazine they were discussing), and he testified that
he does not recall whether S. was in the room at the time. Grievant Test.
In any event, whether he was present or not,
S. angrily complained to G. and said he was “prepared to take his own
independent action” to deal with Grievant. When the issue was brought to
Grievant, he also reacted angrily, saying that he had only been joking. G.
considered the prior warning, the repeated offense, the “I hope I’m not
offending you” comment, Grievant’s “volatile” responses when questioned
about his conduct, and the likely effect on co-workers (particularly minorities)
if Grievant remained in the workforce. Taking all these factors into account,
Gerstenberger decided that termination was the appropriate penalty.
Although Grievant did not dispute the essence of the charges against him,
he testified that he, too, was the target of “ethnic” comments from
co-workers, e.g. “little Leprechaun,” “Mick,” and “Irish Midget.”
Some of these comments were made by S., Grievant claims.
Grievant also testified that S. and others frequently mocked his stature, making
jokes such as Grievant “needed to sit on a phone book to see over the steering
wheel.” Given the atmosphere of the workplace, Grievant contends that it was
reasonable for him to believe that ethnic “teasing” or “jokes” were
acceptable as long as they were not “mean spirited.”
Grievant also notes that he was under considerable stress at the time of
the precipitating events because of the serious illness of his brother. Nor was
there adequate training on harassment issues, he contends, because the training
consisted of approximately one hour a year or so prior to the incident, and
there was nothing posted on the bulleting board to remind workers of the
Grievant argues that he was treated differently from others who made offensive
comments. For example, one employee, who the parties agreed should remain
nameless in the record, handed a female co-worker a dildo and asked if it
belonged to her. He then made comments of a graphic sexual nature to her. That
employee received a four-day suspension and a referral to counseling.
Similarly, several witnesses, including Grievant, testified that crew chief L.V.
once commented, in response to a discussion about the difficulty of finding
low-wage workers, “Hire Mexicans – they’ll work for next to nothing.”
Concededly, V. received no discipline or counseling for this comment. Because V.
was not disciplined, Grievant again argues that he was led to believe that
ethnic comments were not forbidden if they were just “jokes.”
Grievant contends that he should have received “progressive discipline,”
i.e. a suspension, prior to termination. Nor, argues the Grievant, did the
Employer’s discipline here meet the commonly applied “Seven Tests” often
used to determine if discipline is supported by just cause. Thus, Grievant
argues, he should be reinstated and made whole.
The County bears the burden here of establishing that Grievant was
terminated for just cause. In evaluating whether the Employer has met that
burden, I am mindful of the County’s legal obligation to maintain a workplace
free from unlawful harassment, as well as the expense, disruption, and potential
political fallout that can result from employee claims that they have been
victimized by “harassment.” Even claims ultimately determined to be without
legal merit can expose an employer to significant attorneys’ fees, unfavorable
publicity, and lost productivity because public servants are forced to devote
their attention and energies to responding to claims of mistreatment instead of
doing the public’s business.
In addition, once an employer has notice that an employee has engaged in
harassment, that knowledge results in a heightened obligation to take effective
measures to prevent further incidents. Thus, it is appropriate that just cause
be measured with reference, at least in part, to the employer’s increased
exposure to legal liability if an employee repeats unlawful harassment. At the
same time, however, the notions of procedural and substantive due process
embodied in evolving concepts of “just cause” apply even to those accused of
“harassment.” I take seriously, therefore, the Union’s arguments that
Grievant should have been accorded “progressive discipline” and that others
who engaged in similar behavior were disciplined either not at all or less
severely than he was.
applying those principles here, I would likely agree with the Union that
discharge is too harsh a penalty had
Grievant’s misdeeds ended with the offensive comments to S. in the July 24
meeting. Grievant’s expressed willingness to alter his behavior, and his
declared interest in attending some form of counseling that could assist him in
controlling his emotions and in being sensitive to the feelings of others, would
normally earn Grievant a “last chance.” In other words, I would be strongly
inclined to find that a suspension and referral to counseling could
“rehabilitate” Grievant and salvage an otherwise good employee of the
is very troubling to me, however, that shortly after being told that his
repeated incidents of harassment put his continued employment in grave danger,
Grievant openly made fun of the idea that he should act so as not to offend
others. Whether or not S.—a person who had just complained about his offensive
behavior—was present in the room when Grievant poked fun at the idea of
“offensive conduct,” he soon found out about Grievant’s comments. He then
notified the County that he was seriously considering “taking his own
independent action” to deal with Grievant. Interpreted least favorably to
Grievant, Grievant’s actions could be seen as a deliberate and continuing
attempt to criticize and retaliate against S. for complaining. At best, his
actions call into serious question whether Grievant’s expressions of remorse
were sincere, and thus whether he could truly benefit from counseling and from
some form of discipline short of termination.
noted above, the record is unclear as to whether S. was in fact present at the
time Grievant made the “I hope I’m not offending you” comment. It is the
County’s burden to establish just cause, however, so I will assume that Mr. S.
was not present. Grievant therefore argues that he was “quietly” and
“privately” joking with a fellow employee who owned the magazine,
someone who obviously could not have been offended because the Sports
Illustrated swimsuit issue belonged to him.
all due respect, I believe this argument misses the mark. The issue in my mind
is whether—despite repeated instances of offensive comments to co-workers—it
could reasonably be expected that Grievant would benefit from counseling and
from another chance to meet his employer’s expectations. Thus, the importance
of the “I hope I’m not offending you” comment is what it reveals about
Grievant’s attitude, not whether the
particular person to whom he made the comment would be offended by the material
they were viewing. Grievant’s attitude
seemed to be that the County’s concern about his “offensive” conduct was
unworthy of being taken seriously. Given that attitude, I do not find that the
County violated principles of just cause by terminating Grievant for continuing
his pattern of inappropriate interaction with fellow employees shortly after
having been warned that such conduct could result in discharge.
do I find that notions of “progressive discipline” require that Grievant
should have been suspended prior to termination. After the O. incident, Grievant
was notified in writing that similar conduct in the future could result in
termination. Exh. C-4. Even after being told that the County was seriously
considering termination for his comments to S.—and after Grievant professed to
understand the error of his ways—Grievant made the comment about not
“offending” a co-worker, demonstrating that he still viewed “offensive”
workplace behavior as appropriate material for humor. Under the circumstances, I cannot fault the County for
concluding that a suspension and counseling would in all probability prove
futile in changing Grievant’s workplace conduct.
in the absence of specific contract language to the contrary, progressive
discipline does not require a lockstep progression through escalating forms of
discipline—oral warning, written warning, and suspension—prior to
termination. Rather, the appropriate level of discipline for misconduct will
depend on the specific circumstances involved. Thus, “serious” violations
may call for summary termination or for skipping some progressive discipline
steps, while less serious offenses, especially when combined with a generally
good record, will usually indicate that a more linear advancement through the
various forms of discipline is appropriate. In essence, the concept of
progressive discipline is based on the notion of “rehabilitation.” Brand,
Discipline and Discharge in Arbitration at 57 (BNA, 1998). That is, discipline
should be designed to change employee behavior, if possible. But if the record
establishes a serious offense (or repeated less serious offenses) and makes
clear that a change in behavior is not reasonably to be anticipated, accepted
notions of “progressive discipline” do not require a mechanical climb up the
ladder of disciplinary options.
Grievant had received prior counseling about his interactions with co-workers.
Exhs. U-19, 20, and 21. He had received a specific written warning that future
instances of “harassment” could result in discharge. Exh. C-4. Nevertheless,
some two months later he engaged in similar misconduct. Even then, the County
was prepared to suspend him and send him for counseling until his own conduct
made clear that this escalating discipline had been ineffective in getting
Grievant’s attention. On this record, I cannot find that progressive
discipline required the County to take the chance that another round of
discipline short of termination could be “rehabilitative,” especially when
the risk of being wrong involved a heightened level of legal exposure to anyone
who might fall victim to Grievant’s actions in the future.
other arguments on behalf of Grievant deserve mention. First, Grievant contends
that others regularly made derogatory ethnic comments without being subjected to
discipline. To the extent Grievant’s contention is that “lax enforcement”
of the County’s policy against “harassment” failed to alert Grievant to
the seriousness of his conduct, I cannot accept the argument. The written
warning in the O. incident, and the proposed termination letter in the S.
situation, should have made clear to Grievant that abusive comments to
co-workers (even if Grievant intended them to be “joking”) were a serious
violation of County policy. Yet Grievant apparently still thought the idea that
offensive conduct could get him in trouble was a joke. In sum, Grievant’s
argument about an atmosphere of ethnic joking might carry more weight had he not
been so plainly reminded, shortly before the precipitating events, about the
seriousness with which the County viewed such conduct.
based on the same factual allegations of an atmosphere of inappropriate banter,
Grievant contends that the County policy was not uniformly enforced. To the
extent he relies on the “dildo” incident, the guilty employee there, unlike
Grievant, had not previously been disciplined for offensive behavior. Nor is
there evidence that the employee was insincere in his commitment to take the
prohibition against offensive conduct seriously. Grievant’s “I hope I’m
not offending you” comment, on the other hand, gave the County substantial
reason to doubt that Grievant intended to and was capable of changing his
behavior. Thus, I do not find that the “dildo” employee was similarly
situated to Grievant. Arbitrators uniformly hold that “Inconsistent treatment
will not be found where the cases being compared are dissimilar.” Brand,
Discipline and Discharge in Arbitration at 81.
is there any evidence that Grievant complained about the “Irish” jokes
allegedly made at his expense. But see,
footnote 7, supra. If the comments
were made and they offended Grievant, he had means available to make those
feelings clear. There is no evidence he did so. Even if he were offended,
however, he had no right to make derogatory comments about Mr. S.’s Hispanic
heritage or to treat the County’s concerns on that score as unimportant. In
sum, even if I found that others made comments about Grievant’s Irish
heritage, those comments were not equivalent to Grievant’s conduct.
apparent comment of crew chief L. V. (“Hire Mexicans – they’ll work for
next to nothing”) is more troubling. I do not find that this evidence prevents
a finding of just cause to discharge Grievant, however. There is no evidence
that anyone complained about V.’s comment, so the record does not establish
that anyone was “offended.” Nor was the comment apparently directed at
anyone who was present (unlike Grievant’s comment). It may well be that no one
complained about V.’s statement because, in context, everyone understood the
comment to be “ironic,” i.e. a parody of an attitude that V. himself found
stereotypical and offensive. Even if V. intended this single
comment to convey a discriminatory attitude, however, it does not seriously aid
Grievant. I have found just cause for Grievant’s discharge not just because he
repeatedly made offensive comments,
but also because Grievant made fun of the notion that such conduct should be
taken seriously by his Employer. And he did so immediately
after having been told that the County was considering termination. In other
words, V. was not similarly situated to Grievant, either.
sum, even if I accepted that Grievant believed abusive comments were somehow
acceptable because others had made them, he should not have been under any
misimpression about the seriousness of his actions after being notified that the
County contemplated discharge because of his conduct. Indeed, Grievant
demonstrated that he understood the gravity of his situation and what was
expected of him by committing, in writing, to treat his fellow employees with
respect. He even requested
counseling to assist him in meeting those expectations. Nevertheless, the very
same afternoon—while his possible discharge was still formally under
consideration—he publicly mocked the idea that he should refrain from
offending others in the workplace, thus giving the County ample reason to view
his “contrition” as feigned. Nor can I find that the County treated Grievant
differently from others who were similarly situated.
Grievant suggests that his behavior should be treated with leniency because he
was upset by the serious illness of his brother. Grievant’s pattern of
treating fellow workers with insensitivity, however, apparently did not arise
with the illness in his family, nor did it seem to change when he became aware
of that illness. Rather, over a period of several years, Grievant abused
co-workers both before and after learning that his brother was near death. Thus,
I do not see a factual basis for finding a causal relation between the illness
and Grievant’s alleged inability to grasp his Employer’s expectation that he
treat his co-workers with respect.
County had just cause to discharge Grievant. The grievance therefore must be
Having carefully considered the evidence and the arguments of the
parties, I hereby issue the following Award:
County had just cause to discharge Grievant;
grievance is denied; and
Union will bear the fees and expenses of the Arbitrator as provided in the
collective bargaining agreement (Article 20.7).
this 12th day of February, 2001
Michael E. Cavanaugh, J.D.
 The Employer’s Brief, although properly mailed on January 12, 2001, was erroneously returned due to an error of the US Postal Service. Upon the return of the Brief, the Employer faxed and re-mailed its brief on January 22, 2001.
 O.’s fiancé was a co-worker with whom Grievant did not get along.
 May 20, 2000 was a Saturday, and apparently Pruett was not normally scheduled to work weekends.
 There was conflicting testimony about whether Grievant referred to “Puerto Rican” ears or “Mexican ears.” S. testified that he is Puerto Rican and proud of it. Grievant testified that he was aware of this fact as well. Therefore, it seems it would have been more offensive, in S.’s mind, to be referred to as “Mexican.” And if Grievant were aware of how S. felt, as apparently he was, his comments would have been all the more offensive and inappropriate. In the end, I do not find it necessary to resolve the factual dispute about precisely what Grievant said. I will give him the benefit of the doubt, which is appropriate given the Employer’s burden to establish just cause. Therefore, I will assume that Grievant said “Puerto Rican” ears.
 It is uncontested that Grievant had previously referred to S. as a “coward bastard” for complaining to supervisors about Grievant’s conduct.
 Although S. testified at the hearing, my notes do not reflect whether he was asked directly about being present for the comment. Although Grievant testified that S. could have been present, for the purposes of this decision I will assume that he was not, but rather that S. heard about the comment from someone else.
 On cross-examination, S. denied making any such comments. Similarly, an undated memo from Crew Chief L. V. to the “Management Team” notes “It is apparent that [Grievant] justifies his generally offensive remarks by joking about his own Irish ancestry. The problem is that no one makes reference to his Irish ancestry except him.” Exh. C-7 (emphasis added).
 Grievant also suggests that S.’s complaint did not emanate from genuine offense at his ethnic comments, but rather grew out of a change in their relationship after they had a dispute about who was entitled to use a piece of County equipment on a particular day. Whether S. was genuinely offended or not, however, the County has a right to prohibit ethnic joking because of its tendency to offend and its potential to result in legal liability.
 The Employer argues that this situation differed from Grievant’s in that the employee, unlike Grievant, was sincerely apologetic and made a genuine commitment to alter his behavior. In addition, that employee had no prior incidents of discipline for “harassment.”
 I have also noted the unrebutted testimony that Grievant was an excellent crew chief in terms of the work performed by his crews, i.e. his “performance problems” related to relationships with co-workers, not performance of the work itself. I must also note, however, that Grievant had a reputation for “inappropriate content and style in conversation,” especially with co-workers. These traits were noted in his reviews. Exhs. U-19, U-20, and U-21.
 It is significant, in my view, that both of the employees who felt themselves “victims” of Grievant’s conduct suggested that they might take action as a result. G. O. said she would “file a complaint on him if he doesn’t leave me alone.” L. Test. S. told G. he was “prepared to take his own independent action” after the “I hope I’m not offending you” comment. G. Test.
 While I agree that Arbitrator Daugherty’s “Seven Tests” set forth important elements of the just cause determination—including several considerations urged by the Union here—those factors cannot be applied in a mechanical fashion. Rather, the concept of just cause is flexible and pragmatic. It requires the Arbitrator to evaluate and give appropriate weight to its various elements in light of the particular facts involved. Brand, Discipline and Discharge in Arbitration at 31 (BNA, 1998).
 As noted earlier, Grievant had already referred to S. as a “coward bastard” for complaining to supervisors about his conduct, and he had referred generally to co-workers who complained about him as “pussies.”
 Even if S. was not present, however, someone apparently overheard the comment and reported it to him. Thus, the comment clearly was not so “quiet” as to remain “private.” And if it was unlikely to remain “private,” the comment was implicit—if not explicit—retaliation against S. for complaining about Grievant’s comments.
 Grievant wrote “Regardless of my intent, after reviewing my behavior and comments, I fully realize that I was wrong and wish to extend my sincere apology to anyone offended by the incident [comments to S.]. I have learned a good lesson from this event and will refrain from behavior that can be considered offensive to anyone.” Exh. U-22 (emphasis added).