Title: Carolina Telephone & Telegraph Co. and
FEDERAL MEDIATION AND CONCILIATION SERVICE
DR. PHYLLIS ALMENOFF, ARBITRATOR
DECISION AND AWARD
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).
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.
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
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
the hearing the parties stipulated to the following issue:
Was the Grievant discharged for just cause?
If not, what shall be the remedy?
grievance (Joint Exhibit 2) dated February 26, 2002, states the following:
Statement and Basis of Grievance:
Employee was unjustly disciplined for harassment.
of Contract Involved: Article 1, 2, 4, 21 and any others that apply
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
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).
review of the facts gathered, the Company took what it deemed to be the
appropriate corrective action step.
The grievance is denied.
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:
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
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
* * *
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
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.
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
19 – ARBITRATION
* * *
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
Section 7: The limitations of the powers of the arbitrator are as
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. ….
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….
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
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).
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
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.
HARASSMENT POLICY AND REMEDY PROCEDURE (Co. Ex. 4)
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.
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
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….
The individual informed of the occurrence will notify the Employee
Relations representative so that a comprehensive and confidential investigation
may be undertaken immediately.
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.
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)
HARASSMENT AND RELATED ISSUES
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. ….
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)
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
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.
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)
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)
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)
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)
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)
OF THE PARTIES
Position of the Company
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:
The “just cause” standard for termination in the Collective
Bargaining Agreement had been met.
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)
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.
The Grievant denied all incidents of sexual harassment and showed no
remorse for his inappropriate behavior.
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.
The Company asserts that it has a consistent record of discharging
employees for sexual harassment.
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)
Although there was an atmosphere of joking of a sexual nature, it was
never brought to the attention of management. (T. 82)
The Company’s decision to terminate Dion Wiley was justified under the
Labor Agreement and Sprint’s policies.
Position of 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:
Melissa Parker testified that Mr. Wiley first approached her in November
but she did not report any incidents until January.
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.
The team joked, teased and played a lot.
The jokes were often of a sexual nature but not aimed at individuals.
A hallway or aisle into the workplace of the team was called the
“catwalk.” Comments were made
about how people looked and dressed.
If the case were about sexual harassment, the whole work team would be
Mr. Wiley was a very friendly person who joked around with his teamates.
Mr. Wiley apologized to Ms. Johnson for the verbal altercation concerning
his spreading sexual rumors about her that led to their both receiving
After Mr. Wiley grabbed Ms. Layne’s waist from behind, she struck him
and warned him not to do that again.
Mr. Wiley agreed.
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.
Mr. Wiley was a member of the Diamond Club which was a recognition of his
having excelled in sales.
Another employee was given a written warning for sexually harassing an
The Grievant was not terminated for just cause.
OF THE EVIDENCE
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.
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.....”
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.
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)
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)
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.
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.
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
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
Was the employee warned that his/her conduct could result in disciplinary
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.
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.
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.
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
Was the employer’s investigation fairly and objectively conducted?
All witnesses to the allegations were interviewed.
Was the evidence obtained from the investigation showing the guilt of the
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
Does the employer apply its rules, orders and penalties evenhandedly and
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.
Is the degree of discipline sought reasonably related to both the
seriousness of the proven offense and the employee’s service record?
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.
Mr. Wiley’s behavior is illegal and cannot be tolerated in the workplace.
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
facts and testimony in evidence compel a finding that the Company had just cause
to terminate the Dion Wiley.
Grievance is denied in all respects.
Based on the evidence and testimony presented, the Union’s grievance is denied. The Company had just cause to discharge Dion Wiley.
of New York )
I, Phyllis Almenoff, do hereby affirm that I am the individual described in and who executed this instrument which is my award.
 Meritor Savings Bank vs. Vinson, 477 U.S. 57
 Grief Bros. Cooperage Corp..42 BNA Labor Arbitration 555 (Daugherty, 1964).
 GTE California, 103
 Simpkins Industries; United Parcel Service, 104 LA 417, 422