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Title: Carolina Telephone & Telegraph Co. and CWA
Date: September 29, 2003
Arbitrator:  Phyllis Almenoff
Citation: 2005 NAC 107

 

FEDERAL MEDIATION AND CONCILIATION SERVICE

----------------------------------------------------------X

In the Matter of the Arbitration

                           - between –    

CAROLINA TELEPHONE & TELEGRAPH CO.
Wake Forest
, NC

                                    “Employer/ Company"

                           -and-

CWA
Greensboro, NC

                                    Union              
----------------------------------------------------------X







Case Number:  03-02780
Issue: Termination – Dion Wiley

For the Company 

Alvin H. Quarles
Mgr. Employee Relations
Carolina Telephone & Telegraph Co.
14111 Capital Blvd.
Wake Forest NC 27587-5900

For the Union

Karen J. Murphy
CWA
241 Summit Ave. 
Greensboro, NC 27401

BEFORE:   DR. PHYLLIS ALMENOFF, ARBITRATOR

 DECISION AND AWARD

WITNESSES TESTIFYING

COMPANY
Called by the Employer
Alvin H. Quarles

Chandra A. Coward

Wanda Y. Butler

Louise Kittrell

Melissa Parker 

Tina Striplin Johnson

Diana L. Duhart

Renee Layne

Tahera Wilkins 

Susan Alston

Employee Relations Mangaer

Sales Supervisor

General Sales Manager

Sales Supervisor

Complainant

Sales

Security Investigator

Sales  / Customer Service

Sales  / Customer Service

Employee Relations Coordinator

 

Also Present

Susan Stucker

 

 

Senior Attorney

 

Not Present
Veronica Singleton


Sales/Customers Service (written statement)

 

UNION

Called by the Union
Joselyn Edwards

Jeffrey Dion Wiley

Ronald Knight

Witness

Grievant

President CWA Local 3681

 

Also Present

Karen Murphy

Vernice Hickmon

 

 

Staff Representative

Sec. / Treas. CWA (Operations Clerk)

INTRODUCTION

The grievance was submitted to Arbitrator Phyllis Almenoff pursuant to the terms set forth in Article 18 of the Collective Bargaining Agreement between the parties (Joint Exhibit 1)  for a final and binding resolution of the issue. The grievance was filed February 26, 2002 and was appropriately processed through the steps of the grievance procedure without a satisfactory resolution (Joint Exhibit 2). 

 The Arbitrator was jointly selected by the parties from a list submitted to them by the Federal Mediation and Conciliation Service of the United States Government. The parties stipulated that the grievance was properly before the Arbitrator and that the Arbitrator had been properly called. At the hearing the Arbitrator asked if the parties had any objection to the decision and award being released or published.  Neither party objected; their representatives signed a release form.

The hearing took place on July 10, 2003 at the Comfort Suites Riverfront Park in New Bern, North Carolina.  At that time both parties were afforded full opportunity to present testimony, offer evidence and arguments in support of their respective positions and to cross-examine witnesses.  The Company and the Union agreed to submit post-hearing briefs by August 22, 2003. The Union requested and the Company agreed to an extension of time for the post hearing briefs which were to be mailed August 29 2003.  The arbitrator received the Company’s brief on September 1 and the Union’s brief on September 4, 2003. The record was closed upon receipt of both post-hearing briefs. 

The Arbitrator was contacted by the Company on or about July 16, 2003 regarding the testimony of a witness who was unavailable at the time of the hearing.  The Company was directed to contact the Union and arrange for a conference call to discuss the matter.  The Arbitrator urged the parties to resolve the issue.  The parties called to indicate that they had resolved the matter of additional testimony.  The Union representative indicated that she had reluctantly agreed to allow the inclusion into the record of Veronica Singleton’s statement provided to Corporate Security on February 12, 2002. (Co. Ex. 8) with the expectation that the statement would be accepted “for what it was worth.”

STATEMENT OF THE ISSUE

At the hearing the parties stipulated to the following issue:

Was the Grievant discharged for just cause?

If not, what shall be the remedy?

           

The grievance (Joint Exhibit 2) dated February 26, 2002, states the following:

Union’s Statement and Basis of Grievance: Employee was unjustly disciplined for harassment.

Articles of Contract Involved:  Article 1, 2, 4, 21 and any others that apply

Union’s Proposed Disposition:  All discipline related to this incident be removed from the employee, employee’s record and that the employee be made whole and employment reinstated.

           

On May 13, 2002 the Company’s disposition of the grievance at step 3 was as follows:

Article 21 of the labor agreement states, “the Company many release, suspend, demote, discharge, or otherwise discipline employees for reasons it deems appropriate and for which just cause exists.”

Based upon an investigation conducted by Sprint Security officials it was determined that the grievant had violated Company policy(s).  After thorough review of the facts gathered, the Company took what it deemed to be the appropriate corrective action step.

The grievance is denied.

The Union requested arbitration.

Relevant sections of the Collective Bargaining Agreement in effect 2/24/99 – 3/1/02 which relate to the issues are as follows:

ARTICLE 1: RECOGNITION

Section 1.  The Union having been certified by the National Labor Relations Board on June 9, 1997, in Case No. 11-RC-6202, the Company recognizes the Union as the exclusive bargaining representative for the purpose of collective bargaining with respect to rates of pay, hours of employment and other conditions of employment, for all its employees within the following described unit: All service representatives, tellers and commercial clerical employees employed by Carolina Telephone and Telegraph Company at its New Bern, North Carolina facility ….

ARTICLE 2: COMPANY-UNION RELATIONS

Section 1: The Company and the Union recognize that it is in the best interest of the parties, the employees, and the public that all dealings between them be characterized by responsibility and respect.  To this end, the Company and the Union and their respective representatives will apply the terms of this Agreement fairly and in accord with its intent and meaning. 

     

 * * * *     

ARTICLE 4: NON-DISCRIMINATION

           

        * * *

Section 2: Discrimination against any employee because of race, religion, color, age, disability, creed, sex, or national origin is expressly prohibited.  In keeping with this Agreement, neither the Company nor the Union will tolerate sexual harassment by any of its employees/members.  Employees who engage in acts of sexual harassment are subject to discipline, up to and including discharge.

 

* * * *

ARTICLE 21: DISCIPLINE AND DISCHARGE

Section 1: The Company may release, suspend, demote, discharge, or otherwise discipline employees for reasons which it deems appropriate and for which just cause exists.  Such causes for discipline shall include, by way of example but not limited to, dishonesty, falsifying Company records, use of narcotics or other drugs (on or off Company premises), reporting to work under the influence of alcohol or drugs, violating the Company'’ Drug and Alcohol Policy, theft, participating in a fight or uttering provoking words to fellow employees, smoking in prohibited areas gambling on company premises, discourtesy to customers, unacceptable absenteeism or tardiness, failure to properly report a tardiness or absence to his/her supervisor, unsatisfactory job performance, and willful destruction of company property or the property of another employee.

Section 2: The parties recognize that it is impossible to list all conduct which might justify discipline and the above list is not inclusive of all conduct/behavior for which discipline (including discharge) might be administered. The Company’s decision to discipline, or not, and the degree of discipline (including discharge) will depend upon all of the circumstances surrounding each particular incident.  The Company’s decision regarding the degree of discipline to be imposed is subject to the grievance and arbitration procedure; and an arbitrator may, in his discretion and based upon the evidence presented, reduce the degree of discipline imposed by the Company to a lesser penalty.  Further, it is agreed that the Company may, from time to time, promulgate rules and regulations concerning employee conduct/misconduct and the discipline (including discharge) to be imposed for violations of such rules and regulations.

ARTICLE 19 – ARBITRATION

            * * * *

Section 5: The decision of the arbitrator shall be final and binding upon both parties, and upon any grievant(s) and shall conclusively determine the dispute being arbitrated.

* * *

            Section 7: The limitations of the powers of the arbitrator are as follows:

A.     He shall have no power to add to, subtract from, or modify any of the terms of this Agreement.  In this connection, any award against the company must be based upon a finding that the Company has violated a specific provision of this Agreement, and the arbitrator's award must specifically identify the provisions violated and explain in his/her award how the Company violated that provision. ….

* * *

C.     He shall have no power to award compensatory damages,  punitive damages, or any other damages or monetary sums of any type except for back wages in cases of discharge or disciplinary suspensions….

All awards of back wages shall be limited to the amount of wages the employee would otherwise have earned from his employment with the employer during the periods as defined less any unemployment compensation received or other compensation for personal services that she/he may have received from any source during the period.  Nothing contained herein prevents the company from arguing in appropriate cases that the grievant has failed to properly mitigate his/her damages, and if the Company carries its burden of proof on this issue, the arbitrator may reduce any back pay award accordingly.

D.  In discipline and discharge cases the arbitrator shall not substitute his/her judgment for that of the company, but shall apply the standard set forth in Article 21 (Discipline and Discharge).

Relevant provisions of Company Policies and Publications are as follows:

SEXUAL HARASSMENT: NOT HERE! NOT EVER! 1998 (CO. Ex.3)  & 2000 (CO. Ex. 6)

* * *

Sexual harassment may be defined as unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.  It occurs when:

****

C) the conduct has the effect of unreasonably interfering with the victim’s work performance or otherwise acts to create an objectively hostile or abusive work environment – a  work environment that a reasonable person would find hostile or abusive.

Examples of sexual harassment (verbal and non-verbal) include:

·         repeated requests for dates

·         requests for sexual favors

·         intimidation…

·         talking about …..the sex life of co-workers

·         grabbing parts of the body

·         infringing on personal space

Some harassers argue that they are only joking in making crude, intimidation, insensitive or sexually suggestive remarks.

The important thing to remember is that it doesn’t matter what someone’s intention is.  What matters is the impact that the person’s conduct has on others.

If the conduct in question may adversely affect the work performance and well-being of the person who complains, or any reasonable person in the workplace, the conduct may be illegal.  In this area, it is much better to be safe than sorry  – much smarter to be considerate than funny.

…Most victims do not report sexual harassment, or other harassing conduct, out of fear;….

…Sprint will promptly conduct a comprehensive and confidential investigation in response to reported instances of sexual harassment.  After the company concluded its investigation, any person found to have engaged in sexual harassment or in any inappropriate conduct of a sexual nature will be disciplined. Such disciplinary action may include termination, even for the first offense.  The level of disciplinary action taken will, of course, be kept confidential.  Sprint will not tolerate sexual harassment on the job or at company sponsored social or sporting events.

SEXUAL HARASSMENT POLICY AND REMEDY PROCEDURE (Co. Ex. 4)

POLICY

Sprint fully endorses the requirements of Title VII of the Civil rights act of 1964. It is the fundamental employment policy of Sprint to provide a workplace that respects all employees and is free of sexual harassment, to take preventative measures regarding such activity, to remedy any such incidents should they occur in the course of employment and to ensure that such incidents do not jeopardize the company, its employees, or its customers.  Sexual harassment is illegal and is strictly prohibited.  Sexual harassment will be considered a serious violation of the Standards of

Conduct and the Code of Ethics and may result in disciplinary action, up to and including termination.

REMEDY PROCEDURE

Employees who believe they have been sexually harassed by a company employee….should immediately report the occurrence in accordance with the following procedures.  All information will be kept as confidential as possible consistent with an appropriate investigation.

Step 1

Employees are responsible for reporting the alleged incident immediately to their supervisor, the next level of management, your local Employee Relations or Human Resources representative, or to another member of management with whom the employee is comfortable….

Step 2

The individual informed of the occurrence will notify the Employee Relations representative so that a comprehensive and confidential investigation may be undertaken immediately.

Step 3

The investigator will interview the person that filed the complaint, the accused harasser, and witnesses if appropriate.  Retaliation against the complainant will not be tolerated.

Step 4

Any employee who is found, after appropriate investigation, to have engaged in unlawful harassment of another employee will be subject to disciplinary action, up to and including termination.

* * *

The Sprint Principles of Business Conduct (Co. Ex. 7)

EMPLOYEE RELATIONS

SEXUAL HARASSMENT AND RELATED ISSUES

…In addition, unwelcome sexual advances, requests for sexual favors and other unwelcome verbal or physical conduct of a sexual nature are specifically prohibited.  Employees are encouraged to speak out when a co-worker’s conduct makes them uncomfortable.  Employees are also responsible for promptly reporting harassment to Human Resources and/or their supervisor when it occurs….Refer to Sprint’s Sexual Harassment Policy and Remedy Procedure for further information. ….

BACKGROUND

The grievance which is the subject of this arbitration was filed by the Communication Workers of America, Local 3681A (referred hereinafter as the “Union”) on behalf of Jeffrey Dion Wiley (referred hereinafter as “Mr. Wiley” or the “Grievant”) against Sprint, f/k/a Carolina Telephone and Telegraph Company, (hereinafter referred to as the “Company”).  (Jt. Ex. 2)

The Union was certified by the National Labor Relations Board in 1997 as the exclusive bargaining representative for the purpose of collective bargaining with respect to rates of pay, hours of employment and other conditions of employment for all service representatives employed by Carolina Telephone and Telegraph Company at its New Bern, North Carolina facility.  (Jt. Ex. 2) The Grievant’s job classification is included in the recognition clause.

The Collective Bargaining Agreement covers the period from February 24, 1999 and continues in full force and effect up to March 1, 2002.  The Collective Bargaining Agreement covered the Grievant for the relevant period of this grievance.

Jeffrey Dion Wiley had been employed by the Company as a service representative in Sprint’s Call Center in New Bern, North Carolina from January 10, 2000. (T.104) The grievance arose when the Company terminated him on February 22, 2002 for sexual harassment. (Jt. Ex. 2)  Melissa Parker, a sales representative who worked at the Call Center but was part of a different work team reported that she had been the target of unwanted sexual advances made by Mr. Wiley. These sexual advances began in November of 2001 and escalated.  Initially, he asked her to come home with him and cook him dinner. She thought he was joking and laughed it off.  However, he repeatedly asked her to come home with him and she refused.  When she continued to rebut his advances, he accused her of being scared. Finally, in January he asked her to go to a hotel with him after work.  On or about January 31, 2002 Melissa made a complaint to her manager, Verona Jones, that the Grievant had been and was continuing to make unwanted sexual advances toward her. (T15) 

An investigation of the allegations was commenced.  Chandra Coward, the “in charge” manager and Verona Jones (retired from Sprint) interviewed the complainant, Melissa Parker and other witnesses identified by Ms. Parker. (T. 15) They did not interview Mr. Wiley because Veronica Jones found him to be somewhat intimidating. (T. 16) At that point the investigation was turned over to the Corporate Security team for completion.  The security team interviewed the complainant, the grievant and four witnesses.  During the interviews additional incidents of sexual harassment, both verbal and physical, were revealed.  Mr. Wiley indicated that he was unaware of committing any infractions of the company policy. (Co. Ex. 1)

Sprint has a strong policy against sexual harassment that is communicated to all employees in various formats including booklets, training video, posters at the workplace, company policy statement, as well as the Labor Agreement. (Jt. Ex. 1, Co. Ex. 3, Ex. 4, Ex. 6. Ex.7) 

During the two years the Grievant had been with the company he had received various oral reminders and verbal warnings for excessive Not Ready time, leaving his telephone, tying up his phone line, improper dress and an altercation with another employee that disrupted the call floor. (Co. Ex. 2) 

The decision to terminate the Grievant was made by Wanda Yvonne Butler, the general commercial manager for the New Bern and Clinton, North Carolina consumer market group business call center. (T. 76, 81) after reviewing the evidence.  Alvin Henry Quarles, employee relations manager reviewed action taken by the Company in other cases of a similar nature and was also involved in the decision to terminate Mr. Wiley. (T. 88-89)

POSITION OF THE PARTIES

Position of the Company

The Company contends that it properly terminated Dion Wiley under the provisions of the Collective Bargaining Agreement and that his termination should be upheld.  It alleges that the Grievant violated the Company’s sexual harassment policy and created a hostile work environment for Melissa Parker. In support of the Company’s position that the discharge was proper under the Agreement, the Company offered the following arguments:

1.      The “just cause” standard for termination in the Collective Bargaining Agreement had been met.

2.      The Company’s policy against sexual harassment had been communicated to Mr. Wiley as well as other employees at an orientation session, through several publications, refresher training sessions, posters in the call center as well as the Labor Agreement.  The consequences for sexual harassment were clearly stated and indicated that an employee could be terminated for a single incident.  Mr. Wiley was a Union Steward and was familiar with the Agreement as well as company policies.  (Co. Ex. 3, 4, 6, 7. Jo. Ex. 1)

3.      Melissa Parker had been asked repeatedly by Mr. Wiley from late November of 2001 to January of 2002 to come home with him. Initially, she ignored or laughed off his unwanted advances.  He then accused her of being afraid which she denied.  He also poked her with his finger on her body on several occasions.  Finally, in late January he asked her to go to a Holiday Inn Express with him after work. She refused. It was at that point of Mr. Wiley’s escalating unwelcome sexual advances that she reported the incidents to her supervisor.   Each of these incidents violated the sexual harassment policy.

4.      The Grievant denied all incidents of sexual harassment and showed no remorse for his inappropriate behavior.

5.      During the investigation of Melissa Parker’s complaint other employees reported additional incidents of sexual harassment by the Grievant including starting rumors of a sexual nature about a co-worker and grabbing a coworker around her waist.

6.      The Company asserts that it has a consistent record of discharging employees for  sexual harassment.

7.      The Grievant has been with Sprint for two years.  During this time he has received disciplinary warnings concerning leaving his telephone unanswered and an altercation with a coworker that disrupted the call floor. (Co. Ex. 2)

8.      Although there was an atmosphere of joking of a sexual nature, it was never brought to the attention of management. (T. 82)

9.      The Company’s decision to terminate Dion Wiley was justified under the Labor Agreement and Sprint’s policies.

Position of the Union   

The Union maintains that the Company was not justified in terminating Dion Wiley and contends that this action violated the “just cause” provision of the Contract. The Union proposes that all discipline related to this incident be removed from the  employee’s record and that the employee be made whole and employment reinstated. The Union offers the following arguments in support of its position:

1.      Melissa Parker testified that Mr. Wiley first approached her in November but she did not report any incidents until January.

2.      There were no witnesses to the incident in the hall when Ms. Parker claimed that Mr. Wiley asked her to go to a hotel with him.

3.      The team joked, teased and played a lot.  The jokes were often of a sexual nature but not aimed at individuals.

4.      A hallway or aisle into the workplace of the team was called the “catwalk.”  Comments were made about how people looked and dressed.

5.      If the case were about sexual harassment, the whole work team would be guilty

6.      Mr. Wiley was a very friendly person who joked around with his teamates.

7.      Mr. Wiley apologized to Ms. Johnson for the verbal altercation concerning his spreading sexual rumors about her that led to their both receiving disciplinary warnings. 

8.      After Mr. Wiley grabbed Ms. Layne’s waist from behind, she struck him  and warned him not to do that again.  Mr. Wiley  agreed.  .

9.      Sprint did not feel that it was important to read Sexual Harassment: Not Here! Not Ever! since work time was not provided for reading the booklets.

10.  Mr. Wiley was a member of the Diamond Club which was a recognition of his having excelled in sales.

11.  Another employee was given a written warning for sexually harassing an employee. 

12.  The Grievant was not terminated for just cause.

ANALYSIS OF THE EVIDENCE

The issue to be determined in this arbitration is whether the Company was justified under the terms of the Collective Bargaining Agreement in terminating the Grievant, Dion Wiley, based on all of the facts in evidence. Dion Wiley’s employment with Sprint was terminated as a result of alleged sexual harassment brought to the company’s attention through the complaint of Melissa Parker.  As a result of an investigation of the complaint, several additional instances of sexual harassment were revealed.

The Company has a strong policy against sexual harassment that is communicated in various forms. (Co. Exs. 3, 4, 6 and 7)  The policy is articulated to new employees at an orientation session. Employees received copies of Sexual Harassment: Not Here! Not Ever! and The Sprint Principles of Business Conduct. The Sexual Harassment Policy and Remedy Procedure is posted in various places in the call center.  Article 4: Section 2 of the Collective Bargaining Agreement states “…neither the Company nor the Union will tolerate sexual harassment by any of its employees/members.  Employees who engage in acts of sexual harassment are subject to discipline, up to and including discharge.” (Jo. Ex. 1)

 Article 21; Section 1 of the Collective Bargaining Agreement provides the Company the right to “… release, suspend, demote, discharge or otherwise discipline employees for reasons which it deems appropriate and for which just cause exists.…”  Section 2 states”…The Company’s decision to discipline, or not, and the degree of discipline (including discharge) will depend upon all of the circumstances surrounding each particular incident….” The Agreement also provides ”…that the Company may, from time to time promulgate rules and regulations concerning employee conduct/misconduct and the discipline (including discharge) to be imposed for violations of such rules and regulations.....”

Melissa Parker, the complainant, testified that although she rebuffed his sexual advances, Mr. Wiley repeatedly asked her to come home with him. He kept asking her if she was afraid to do this which she either ignored or denied. This pattern of behavior continued for a period of two months.  Veronica Singleton, who did not testify at the hearing because of a short-term disability, provided a statement to Sprint Corporate Security that was accepted as evidence for “what it was worth.” (Co. Exh. 8) Ms. Singleton’s statement corroborates an incident in the parking lot on January 26, 2002 during which Mr. Wiley said to Ms. Parker: “Come on and get in the back seat of my car and come home with me.  Ms. Parker refused and the Grievant said, “What’s the matter, are you scared?”  to which she replied “no” and kept on walking.  The following week Mr. Wiley asked her to meet him at the Holiday Express after work. (T. 30) Shortly thereafter, Ms. Parker reported the incidents to a manager.  During an investigation of her complaint, it became evident that two other co-employees had been sexually harassed as well.

Tina Strickland Johnson testified about an incident in which she and Mr. Wiley were disciplined because of an altercation between them on the call floor.  Although they worked on the same team and were friends, Ms. Johnson was infuriated when she learned that Mr. Wiley was spreading sexual rumors about her indicating that she was cheating on her husband while he was stationed in Afghanistan. (T. 42) She felt that he had disrespected her. (T. 47) On another occasion, when she was talking to him and touched him inadvertently during the discussion, he made crude remarks about sitting down on his lap and getting pushed up in the air as a result. (T. 43, 45) During her testimony, Tahera Wilkins’ confirmed that Mr. Wiley had spread sexual rumors about Ms. Johnson. During the cross-examination, she said that the Grievant had said to the whole group out loud, “She done messed with somebody husband the girl mad.”  She also confirmed Mr. Wiley’s comment to Tina “You better get up before something poke you.” (T. 66) Ms. Wilkens also testified that he had made inappropriate comments to her. (T 61, 62)   

 Renee Layne worked on the same team with Mr. Wiley, was a good friend of his and socialized with him and his wife. (T. 50) One day, Ms. Layne was talking on the telephone in the break room when Mr. Wiley came up behind her, grabbed her on her waist with both hands and whispered something in her ear.  She turned around, punched him and told him not to do that again and indicated that it was not appreciated. (T. 51, 56) Ms. Layne testified that she engaged in  various conversations with Mr. Wiley in which she advised him that certain behavior is inappropriate in the workplace. (T. 56) During her testimony, Ms. Wilkens stated that Renee Layne had told her about the incident when the Grievant had come up behind her, whispered something sexual in her ear and grabbed her waist. (T. 61)

In his testimony, Mr. Wiley said that he never propositioned Ms. Parker, never asked her to go home with him to cook his dinner, never told her she was scared and never asked her to go to the Holiday Inn Express with him. (T. 117,119) He testified that all he ever said to her was “Good morning.” (T. 120) He denied grabbing Ms. Layne around the waist and whispering sexual comments in her ear.  His explanation was that he was trying to get her attention and inform her about a meeting. (T. 117)  Ms. Layne testified that there was no meeting.  Mr. Wiley’s version of the incidents with Ms. Parker, Ms. Johnson and Ms. Layne were very different from testimony provided by each of the women and corroborated by other witnesses.  In his testimony, Mr. Wiley completely denied all allegations and incidents of sexual harassment.  He emphasized that his team joked around and that comments were often made about individual’s clothes, appearance and these comments had sexual overtones.  He also testified about comments frequently made when people came down the aisle which was called the “catwalk”. During his testimony, Mr. Wiley attempted to negate previous testimony by company witnesses concerning sexual harassment. He testified that he had not received copies of the Sexual Harassment policy, had not received any training on the policy, had not noticed the posters at the workplace and was not aware of the prohibition of sexual harassment in the Labor Agreement.  During cross-examination, Mr. Wiley claimed that he didn’t recall receiving Sexual Harassment: Not Here! Not Ever! although there was testimony that he had. (T. 126) He admitted to knowing about the sexual harassment policy but claimed that he had not read it. (T. 126)

There was considerable testimony with regard to an environment in this work group in which there were often sexual jokes and comments.  This permissive environment had not been reported to the Company previously. (T.82)  It violates the Sexual Harassment Policy and should not be tolerated. 

It is essential to assess the motivation and credibility of the witnesses. The Complainant, Melissa Parker’s testimony was totally credible. There was no animus towards Mr. Wiley.  For several months, she ignored or laughed about Mr. Wiley’s sexual advances.  When his unwanted sexual advances increased in intensity, she complained to a manager.  She had no motivation to lie.  Tina Striplin-Johnson, Renee Johnson, and Tahera Wilkins were either on good terms or friends of Mr. Wiley. I believe that their testimony was truthful. 

Mr. Wiley denied all of the allegations made against him and provided his own version of what occurred in each of the incidents reported.  His testimony about not having received or been exposed to the Sexual Harassment policy was contradicted.  It appears that his motivation was to be reinstated in his position at Sprint. Mr. Wiley’s testimony was neither credible nor convincing.  Furthermore, his testimony clearly indicated that he had no remorse for his behavior.

Was Mr. Wiley discharged for just cause? Arbitrators often use a seven part test to determine whether an employer has met the burden of just cause. The standards  are as follows:

1.        Was the employee warned that his/her conduct could result in disciplinary action?

Yes, the Labor Agreement which the Grievant received states that sexual harassment will not be tolerated and that employees who engage in acts of sexual harassment are subject to discipline up to and including discharge.  Sexual Harassment: Not Here! Not Ever! and the Sprint Principle of Business Conduct were received  by the employee. They clearly define sexual harassment and state that it is illegal and that an employee may be suspended or discharged for violating the sexual harassment policy. Sexual Harassment: Not Here! Not Ever! states that Sprint will conduct an investigation in response to reported instances of sexual harassment. After the company concludes its investigation, any person found to have engaged in sexual harassment or in any inappropriate conduct of a sexual nature will be disciplined.  Such disciplinary action may include termination, even for the first offense. Furthermore, the Sexual Harassment Policy and Remedy Procedure is posted in the call center.

2.        Does the employer’s rule or policy in issue reasonably relate to the orderly, efficient and safe operation of the company?

Yes. Companies are legally responsible to provide employees a workplace that is free of sexual harassment.  Substantial financial penalties may be awarded when companies tolerate sexual harassment in the workplace.[1]

3.        Did the employer investigate to determine if a violation had occurred prior to taking disciplinary action?

A prompt and thorough investigation was conducted by the Company’s Management and Corporate Security teams prior to taking disciplinary action. 

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

Yes.  All witnesses to the allegations were interviewed.

5.        Was the evidence obtained from the investigation showing the guilt of the employee substantial?

Yes.  The investigation revealed the veracity of the Complainant’s allegations and revealed several other instances of Mr. Wiley sexually harassing other employees.  Each of the sexually harassing incidents was corroborated by  other witnesses.  

6.        Does the employer apply its rules, orders and penalties evenhandedly and without discrimination?

      In two similar cases the employee was discharged.  In one case in which there was a single incident of sexual harassment, a final warning to the employee was issued.

7.        Is the degree of discipline sought reasonably related to both the seriousness of the proven offense and the employee’s service record?[2]

Yes.  Mr. Wiley has been an employee of the Company for a two years.  During this period he has been disciplined for various infractions.  The Company has the right to discharge an employee for sexually harassing behaviors as detailed in the Labor Agreement and the Sexual Harassment Policy.  Mr. Wiley created a hostile work environment for Melissa Parker by repeatedly making sexual advances toward her. He sexually harassed other co-workers as well. Mr. Wiley did not admit his behavior and showed no remorse for his actions. In view of the fact that he is not a long-term employee, had been disciplined previously for other infractions, did not show any remorse or interest in correcting his behavior and is not a candidate for rehabilitation, I find the degree of discipline is not excessive.[3] Mr. Wiley’s behavior is illegal and cannot be tolerated in the workplace.

The standards for just cause have been met.  The burden of proof in this case is on the Company. The Company has met this burden. Due process requires that management conduct a reasonable inquiry or investigation prior to assessing punishment.  The Company did conduct a fair and impartial investigation of the incident. 

The facts and testimony in evidence compel a finding that the Company had just cause   to terminate the Dion Wiley.[4]

The Grievance is denied in all respects.

AWARD

Based on the evidence and testimony presented, the Union’s grievance is denied. The Company had just cause to discharge Dion Wiley.

DATED: ________________
______________________________
Phyllis Almenoff, Arbitrator

State of New York )
                                )
County of Nassau  )    

I, Phyllis Almenoff, do hereby affirm that I am the individual described in and who executed this instrument which is my award.


[1] Meritor Savings Bank vs. Vinson, 477 U.S. 57

[2] Grief Bros. Cooperage Corp..42 BNA Labor Arbitration 555 (Daugherty, 1964).

[3] GTE California, 103 LA 343

[4] Simpkins Industries; United Parcel Service, 104 LA 417, 422

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