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and
AFSCME,
Council 93,
Local 804
116 LA (BNA) 906
September 12, 2001
Richard G. Remmes, Arbitrator.
Issues
The parties agreed to the following statement
of issues.
1) Is the grievance
arbitrable?
2) Did the City have
just cause to terminate the grievant on October 6, 1999 for alleged actions on September
11, 1999?
3) If not, what
shall be the remedy?
Background
The instant grievance arises under authority
of Massachusetts General Laws, Chapter 150E, Section 8. Grievance procedure:
arbitration and the provision of Article 7, Grievance Procedures, found in an
Agreement between the City of Boston and the American Federation of State,
County and Municipal Employees, AFL-CIO, Council 93 and Locals, effective July
1, 1999 and expiring June 30, 2002.
Contract Clauses
Article 6,
Discipline and Discharge.
Section 1. No
employee who has completed six (6) months of actual work shall be disciplines,
suspended, or discharged except for just cause. Any period or periods during
the first six (6) months of service for which an employee is not paid
(including as little as (1) day) shall extend the probationary period by that
amount of time. An employee who separates from and is subsequently re-employed
by the City of Boston shall serve a new six (6) months probationary period,
except in cases of recall or reinstatement. An employee who appeals his/her
suspension or discharge under Civil Service law or any other statutory appeal
procedure shall not have access for such grievance under the contract grievance
and arbitration procedure.
Section 2. For the purposes of this
Agreement, persons classified as “Parking Meter Supervisors” shall be deemed
permanent employees. An employee in such position or in any position which is
neither classified nor deemed to be classified under Civil Service law and
rules and who has completed his/her six-month probationary period shall not be
discharged except for just cause.
Section 3. The City agrees to apply the concept of progressive discipline in all but the most serious cases. The City recognizes the value of counseling employees regarding performance deficiencies.
Section 4. (Non permanent Civil Service)
Article 7. Grievance Procedure.
Section 1. Only
matters involving the question whether the Municipal Employer is complying with
the application, meaning or interpretation of the written provisions of this
Agreement shall constitute grievances under this article.
Positions of the Parties
The representative for the Union emphasized the 17-year discipline-free
record of the grievant as well as his exemplary service for the past eight
years as a supervisor. The grievant denied he had unhooked the bra of the
complaining female. He painted a completely different scenario of the actions
on September 11, 1999. The grievant's version of that night depicted the
subordinate removing her bra herself and then dangling the bra at his neck.
According to the grievant, the female removed
her own bra to feel free or loose and remove the tightness, caused by the
heat.
The Union also cited the provisions of
Article 6, calling for just cause and the use of progressive discipline. This
first offense (which the Union and the grievant did not admit) should have
resulted in a lesser penalty if found to be true. The union said the charges
are unclear or just an isolated incident that could be termed horseplay.
However, the Union said the facts were a
fabrication or at the least, an exaggeration. The complainant had made a vulgar
suggestion several months prior that would indicate she was the type of person
who would remove her own bra and then exaggerate or fabricate the facts.
The representative of the City bought out the
fact that the employee had made a fresh complaint about the incident. The
complainant made a contemporaneous record of the details of the incident and
had an employee-witness countersign that certain parts of her statement were
witnessed by him and were true. The City made a full investigation and talked
to numerous witnesses who corroborated most of the female's facts. The grievant
had no employees to verify his version of the facts. Two employees who no
longer are employed by the City had nothing to gain by testifying to support
the female and had no animosity against the grievant since they never worked
under him except for the night in question.
The City pointed out a consistent version of
the incident when detailed by the female but differing versions by the grievant
or a rationalization that was not credible.
The City also argues that an arbitrator has no authority to overturn a
dismissal if he has made a finding of just cause since there is a public policy
against sexual harassment which leaves an arbitrator no power to mitigate the
penalty. The City also wishes to limit the power of the arbitrator
because the grievant is a special police officer appointed by the Boston Police
Commissioner. The arbitrator has no control over the Commissioner, the City
points out. The City argues that a restoration to the position of Senior
Parking Enforcement Officer without a warrant as a special police officer would
force the City to create a new position, without the police credentials.
Analysis and Discussion
The facts in this case unfold about midway
through a 3 p.m. to 11 p.m. Saturday shift on September 11, 1999. Five
employees of the Boston Transportation Department took a meal break at the
local Burger King after completing their duties for the first half of the
shift. Four of the employees were parking meter officers who as a team walked a
designated district and issued parking tickets for meter parking violations.
The fifth employee was the grievant, O__, who drove the van that they were
transported in and who supervised their work.
Upon returning from lunch, the complainant who was the sole female in
the team, was entering the van when she alleges O__ put one hand on her back
and through her uniform shirt unfastened her bra strap. O__ denied the
allegation and said he put his hand on her back to assist her up the step as it
was a high step. O__ then drove the van to another location where two of
the employees, K__ and G__, were sent out of the van to tag on another
street.
With C__ in the front passenger seat counting
his tickets and O__ in the driver seat, the complainant sat in a bench seat, in
the middle, behind O__ and C__. According to the complainant, O__ reached across the two or so feet
between him and her and reached up the sleeve of her short-sleeve uniform shirt
and pulled down her left bra strap. O__ then continued to attempt to remove her
right bra strap and the female raised her legs, defeating his effort, she said.
She then removed her right bra strap and pulled the bra to the center of her
shirt to remove it with the intention of placing it in her purse, rather than
attempt to re-fasten the back and place the straps back in front of the two
men. C__ verified that O__ removed the left strap and attempted to remove the
fight strap. His testimony conformed to a written statement by the complainant,
that he verified in part. According to the statement, O__ grabbed the bra from
the female (she said by bending her fingers) and hung the bra out the window
onto the van's mirror. The female said O__ yelled to K__ “Come smell this”. K__
was on the street. C__ and K__ verified something was said by O__ but neither
could confirm the words. K__ then removed the bra from the mirror and place it
on the van's right side antenna before the female went out of the van and
retrieved the bra and placed it in her purse. K__ said he did not know where
the bra came from when he moved it to the antenna or he would have returned it
to the complainant. Nothing further was said about the incident although C__
verified the complainant was upset. C__ estimated the time from the loosening
of the first bra strap to the return to the purse was about three minutes and
less between the first strap and the placing on the mirror.
O__ denied the allegations and said the bra
was removed by the woman who then dangled it on the back of his neck, uttering
words about how tight it was and what a relief it was to have off. He said she
gave it to him and he folded the bra an placed it on the inside ledge of the
van. The woman denied making those statements and C__ who was in the van with
them does not remember any words of that nature. The statements of the
complainant, C__ and K__ were consistent with statements later recorded in a
September 30, 1999 investigation report. This and the holographic reports from
the complainant, countersigned by C__, were the basis for the termination
decision dated October 6, 1999 which followed a heating October 5, 1999.
It should be noted that at the time of the
incident, the complainant, C__, K__ and G__ were probationary employees. All
were hired June 7, 1999 and had not completed their six months probation. They
were aware they were subject to termination without access to the grievance
procedure or arbitration. O__, on the other hand, had the protection of the
contract and was a supervisor, with apparent authority to fire them, or in
their minds, the apparent authority to effectively recommend their
dismissal.
The testimony of Daniel Mastroilli was noted and weighed. He testified
that O__ was a well-respected and conscientious employee with a 17-year
unblemished record and is respected as a supervisor. Mastroilli's reference to
a vulgar remark by the complainant before him that was taken as a joke and
never resulted in discipline was disregarded.
The negotiated agreement states in Article 6-
Discipline and Discharge, Section 1. “No employee who has completed six (6)
months of actual work shall be disciplined, suspended or discharged except for
just cause.” O__ enjoyed the protection of this clause.
Rather than adopt the principles of just
cause as spelled out in the City's brief on page 3, I will use the time-tested
7-point analysis set out by arbitrator Carroll Daugherty in Grief Brothers
Cooperage Corp., 42 LA (BNA) 555 (1964).
The first question to be posed is: Did the
employer give the employee forewarning or foreknowledge of the possible or
probable disciplinary consequences of the employee's conduct? The Discipline
Article cited above gives the City the right to disciple, suspend or discharge
for just cause. The Sexual Harassment Policy, which was acknowledged by O__ on
January 22, 1998. In the City's Policy, all employees were notified they will
be subject to disciplinary action up to an including termination. (emphasis in
policy)
The next question is: “Was the employer's
rule or managerial order reasonably related to the orderly, efficient and safe
operation of the City's business.” There has been a court-approved public
policy that management should take steps to eliminate sexual harassment in the
workplace.
The third inquiry is: Did the employer,
before administering discipline to an employee, make an effort to discover
whether the employee violated or disobeyed a rule or order of management? It is
apparent there was a well-promulgated Sexual Harassment Policy in place and a
thorough investigation took place and an opportunity to respond was allowed
with representation.
Next an arbitrator must consider: Was the
employer's investigation conducted fairly and objectively? The record supports
an impartial investigation showing a fresh complaint to Janice Mullane (Union
President) in an 11 p.m. call, an opportunity to explain and make a statement
by O__ with representatives present and interviews with K__ and C__. The City
also made documents and statements available to O__. Another opportunity was
given on October 5, 1999 to answer the charges. The investigators, Arlyne Grant
and Richard Driscoll, presented their finding to an upper level where David
Gallogly, served as a hearing officer. An opportunity to respond was given
before the decision was made by Andrea d'Amato, Commissioner.
At the investigation did the “judge” obtain
substantial evidence or proof that the employee was guilty as charged? The
evidence gathered by the investigators supported the charges through testimony
and written statements that verified the testimony. An opportunity was given at
the interview of October 24 then to make a statement and/or rebut the testimony
and again at the October 5 hearing.
The question: Has the employer applied its
rules, orders and penalties evenhandedly and without discrimination to all
employees? The record is absent any reference to prior discipline at any level.
Barbara Wirtz, Principal Personnel Office of the Transportation Department, was
not asked nor did she offer one instance of any other employee fired or
disciplined for a sexual harassment charge, nor was there any case cited where
an employee was fired without progressive discipline. Also absent was examples
of what is a “most serious” case, or even a definition or standard.
The final just cause point is: Was the degree
of discipline administered by the employer reasonably related to (a) the
seriousness of the employee's proven offense and (b) the record of the
employee's service? Since the degree of discipline was termination of a 17-year
employee and no evidence of past discipline for other employees I turned to
prior arbitrations to determine whether or not other arbitrators had upheld
terminations for a first offense for long term employees. If the research shows
the punishment was excessive then I must decide on an appropriate penalty.
Before I address the propriety of the
punishment issue, I would like to address the City's claim that an arbitrator
has no authority to mitigate a penalty of termination, having found just cause,
because there is a “public policy” against sexual harassment and the final
decision of the City cannot be overturned. Massachusetts law as expressed by
the First Circuit Court and the Supreme Judicial Court requires an “explicit,
well-defined, and dominant public policy as ascertained by reference to
positive law” that prohibits (O__'s) reinstatement in these circumstances.
My research which follows indicates (1) there is no public policy that
requires the firing of an employee with 17 years service for a first-time
offense. (2) O__ was fired as a Senior Parking Enforcement Officer and not as a
Special Police Officer. If reinstated he will have a record showing no
termination and no criminal conduct. There is no reference in the
negotiated agreement for me to interpret and no provision called to my
attention except external law referred to in the City's brief. Accordingly, for
purposes of this arbitration, I consider his status as a special police officer
a non-issue.
In early September this year, the Supreme
Judicial Court refused to overturn an arbitrator's award reinstating a Lynn
police officer who had been terminated but the penalty reduced to a two-week
suspension. The officer used offensive language to an unstable woman. The City
previously had paid $350,000 in a civil rights violation but an arbitrator
overturned any discipline for the same incident. So the officer, if effect, had
a clean record when the language incident took place. City
of Lynn v. Thompson, 30 Mass. Law Week 2953.
Another recent case involved the reinstatement
of a terminated employee who was blamed for a baby's death. About September,
1998 a 10-year nurse at Boston Medical Center was fired for her sub-standard
care of a burned infant. An arbitrator ruled that the nurse be returned to her
job after a long-term suspension. The case was appealed to the U.S. District
Court in Massachusetts and Chief Judge Young vacated the arbitration on
September 18, 2000 Boston Medical Center v. SEIU Local 285, 165 LRRM (BNA)
2392. The Judge cited public policy in overturning the arbitration. On August
9, 2001 the First Circuit Court of Appeals overturned the U. S. District Court
(167 LRRM (BNA) 2801, 29 Mass. Law Week 2796) and confirmed the arbitration
order because there is no such public policy in Massachusetts of delivering
safe and competent nursing care. The Court said the arbitrator was free to
conclude that there was no just cause for firing H__, but there was just cause
for a lesser discipline. The Court there said “Massachusetts does not have an
`explicit, well-defined, and dominant public policy, as ascertained by
reference to positive law' that prohibits H__'s reinstatement in these
circumstances.”
Other Massachusetts cases where the Supreme
Judicial Court has refused to create a public policy and upheld arbitrators,
Massachusetts Highway Department v. AFSCME Council 93 420 Mass. 13 in 1995
upheld a suspension rather than a termination for an employee who took a gun to
work. In Bureau of Special Investigations v. Coalition of Public Safety 430
Mass. 601 [164 LRRM (BNA) 2247] upheld a Superior Court's agreement with an
arbitration that returned two employees to work after they were terminated for
viewing confidential tax returns of certain individuals. The case, decided in
2000, held there was no public policy requiring the employees be fired.
While arbitrators have no authority to
determine what is public policy and what is not, many courts have made that
decision for them in the area of sexual harassment. Regarding the issue of
public policy and sexual harassment, a recent case Weber Aircraft v. General
Warehousemen Local 767(5th Circuit) 167 LRRM (BNA) 2321(June 7, 2001) upheld
the right of an arbitrator to mitigate a discharge of a lead man, employed by
Weber for 25 years. In that case the arbitrator found the employee had
committed acts of sexual harassment, a “Category I” violation, against a female
worker and reduced the penalty to reinstatement after 11 months, with no back
pay. A federal district court reversed the arbitrator and reinstated the
termination. The Court of Appeals said it could find no law, regulation or
legal precedent for an “explicit, well-defined and dominant public policy” that
was violated by the arbitrator's decision and the employee was returned to his
job. Weber cited language from Westvaco, which follows.
Cited in the above case was Westvaco Corp. v.
Paperworkers (4th Circuit) 160 LRRM (BNA) 2844(1999) which also overturned a
federal district court reversal of an arbitration award which returned a
terminated sexual harasser to his position after a nine-month suspension.
Although the facts supported the charge that the 20-year employee was guilty of
the misconduct, the company was aware of early incidents and took no action.
The arbitrator also considered the charge was a first offense and the employee
had a good work record with no prior discipline. The Appeals Court said “the
district court overlooked three critical factors. First, while it is certainly
true that there is a public policy against sexual harassment, the district
court formulated it in too general a fashion. There is no public policy that
every harasser must be fired. (emphasis added) Instead, a company must
`exercise reasonable care to prevent and correct promptly any harassing
behavior.' Nowhere in this litany or prevention and correction is there the
suggestion that every employee who makes a mistake must automatically lose his
or her job. And because misconduct often differs in degree, there is no
universal punishment that fits every case. We therefore agree with those
circuits that have concluded the general public policy against sexual
harassment is not sufficient to supplant labor arbitration of employee
disciplinary sanctions.”
In Escalade Sports 115 LA (BNA) 311 (October
24, 2000), an arbitrator returned an employee to work with a one-year
suspension and a final warning when he was found guilty of racial and sexual
harassment and creating a hostile environment.
Commercial Printing Co. 115 LA (BNA) 393 is
another arbitration where a termination for sexual harassment (asking a worker
to have sex with him 20-30 times in a night) was mitigated to a return to work
without back pay after one year. Management had no policy and did not train
employees. (11/30/00)
The U. S. District Court for Southern N.Y. in
Brookdale Hospital Medical Center 165 LRRM (BNA) 3031upheld an arbitrator's
mitigation from a firing to a two-month suspension for one discipline-free
employee who had sexually harassed several female employees over a period of
months.
A
four-year employee was reinstated and given a final warning in Phelps Dodge
Morenci 114 LA (BNA) 819for an offensive utterance to a female who was not
threatened but related the utterance to others 165 days later. (6/14/00)
The arbitrator in Lockheed Martin 114 LA
(BNA) 481 reinstated an employee without back pay after 9 months for telling a
woman she was beautiful and touching her on her on her arm and waist other
times. (5/10/00)
A 30-day suspension resulted after a
terminated employee was accused of using vulgar and profane language. The
arbitrator in Stone Container Corp. 114 LA (BNA) 395 ruled the language
was not sexual
harassment in overturning a firing on a first offense.
In Mead Corp. 113 LA (BNA) 1169, a
termination for sexual harassment was reduced to a one-week suspension for a
long-term employee who made verbal comments, sexual innuendoes and banter.
(1/11/00)
An employee with a nine-year clean record had his termination reduced to a nine-month suspension in PPG Industries 113 LA (BNA) 833. He sent pornographic e-mails but was treated more harshly than other employees. An added issue was the company's failure to publish the sexual harassment policy widely. (11/19/99)
An arbitrator reduced a discharge to a five months
suspension for inappropriate comments about sex acts and other statements.
Minn. Mining and Mfg. 113 LA (BNA) 402 (7/1/99)
An arbitrator in Eaton Corp. 112 LA (BNA) 705
ruled action of a female who used employer's camera equipment to take pictures
of her bare breasts for her boyfriend was not sexual harassment but crude and
foolish misconduct, reducing termination to two months suspension.
(4/30/99)
In Chrysler Motors v. Allied Ind. Workers
(7th Circuit) 139 LRRM (BNA) 2865 (1992) the arbitrator held that a fork lift
operator fired for sexual harassment should be reinstated after a 30-day
suspension. The arbitrator considered the employee's lack of prior discipline
and the probability of rehabilitation, along with the negotiated agreement's progressive
discipline policy. Both the federal district court and the Appeals Court found
no violation of public policy.
In an earlier decision CWA v. Southeastern
Electric Cooperative(10th Circuit) 132 LRRM (BNA) 2381(1989) the district court
and the Appeals Court agreed that a one-month suspension was appropriate for a
lineman with 19 years seniority who sexually assaulted a female customer in her
home. The employee had a discipline-free record and was a good worker. He
admitted touching her shoulder and buttock while the victim claimed he forced a
kiss on her and touched her breast.
But in Newsday v. CWA Local 915 (2nd Circuit)
135 LRRM (BNA) 2659 (1990) a compositor with 20 years at Newsday was returned
to his job by an arbitrator who ignored an earlier arbitration decision putting
the employee on a “last chance” status for sexual harassment. When the second
arbitrator sent the employee back to work after new charges were supported,
both the district court and the Appeals Court cited public policy in the orders
refusing to reinstate the employee. This case differs because it was not a
first offense.
In HERE Local 24 v. Detroit Club, USDC E.
Michigan (1999) the court found no public policy violation in reducing a
termination to a 4-week suspension for a 15-year waiter who made sexual
statements and gestures to a fellow employee.
A 17-year employee at Kuhlman Electric 112 LA
(BNA) 691 (1999) received a seven month suspension after an arbitrator deemed a
termination excessive for making comments about an employee's personal
appearance, describe sexual fantasies to her if she was not married and put
arms around her when alone.
Fleming Companies 113 LA (BNA) 256 (1999)
fired an employee for saying “when you do that your ass shakes” but an arbitrator
reduced the penalty to a seven-month suspension despite prior discipline.
Baskin Robbins 111 LA (BNA) 554 (1998)
management deemed conduct of telling a woman she smelled good and always made
his day and inviting a woman to sit on his lap to be sexual harassment but an
arbitrator reduced a firing to a five-day suspension because the woman was not
offended.
Minn. Mining and Mfg. 113 LA (BNA) 401 (1999)
resulted in mitigation of a firing to five months suspension for an employee
who described to a female his thoughts of her disrobing, which she taped.
These illustrations do not indicate that
sexual harassers are not fired. In many cases arbitrators have held that the
conduct was not sexual harassment but crude and imposed another penalty. But
where the conduct was “continued conduct” Conagra Frozen Foods 113 LA (BNA) 129
(1999) or where a Safeway 112 LA (BNA) 1050 (1999) employee told sexually
explicit jokes to an unwilling 16-year old the firing was upheld. Steuben Rural
Electric Corp. 98 LA (BNA) 337 (1991) is an example of a first-offense firing
but the acts were against three females over a period of time. An employee at
the Plain Dealer Publishing Co. 99 LA (BNA) 969 (1992) who made explicit sexual
statements and fondled a clerk, after he had been warned about the conduct, was
terminated. Other cases resulting in terminations involved continuous
harassment actions by the employee, prior warnings about the misconduct, prior
disciple, a negative work record or a pattern of misconduct over period of time
or against several women.
Based on the plain wording of Article 7,
Section 1, I find that the case is arbitrable as the decider of facts is asked,
first of all, to make a decision whether or not there was misconduct. I have
the authority under Massachusetts General Laws and the Agreement to make these
decisions.
Further, I find the City did have just cause
to discipline O__ for the incident on September 11, 1999. I make this decision based
on the record of exhibits and testimony, finding that the testimony of O__ was
not believable. O__'s statements and responses to questions and hesitations
left many gaps in credibility, while the statements of the complaining woman
were verified in most cases by a second person. O__'s version was colored by
his lack of candor and the knowledge that he could lose his job, if the facts
were sustained as charged. On the other hand, I have considered that the
witnesses for the City were at that time possibly placing their jobs on the
line by the accusation, but elected to support the woman. C__ and K__, when
testifying, were no longer City employees and had nothing to gain by supporting
the woman.
While I find there was just cause to discipline, I find that the City
did not have just cause to terminate O__. The Sexual Harassment policy put him
and every other employee subject to the policy that they “will be subject to
disciplinary action up to and including termination.” There was nothing in the
policy that stated all cases of harassment would be punished on a first offense
basis with termination. Even the negotiated agreement promises progressive
discipline “in all but the most serious case.”
In a just cause situation, the employer has the burden of supporting
its decision to take the level of discipline, in this case termination. Neither
side offered evidence that termination was the proper punishment or a lesser
punishment was appropriate. A basic rule in my experience has been that
management should take the least amount of discipline to correct the conduct.
Discipline should not be used to announce a new policy that “a first offense
under the Sexual Harassment policy would result in termination.”
I don't believe the City considered any other alternative except
termination as a measure of showing a get tough policy but if it wants to adopt
such a policy it is required to give notice of such a change. Or on the other
hand, the City could negotiate a standard for “the most serious cases”.
I do not intend to minimize the misconduct or any misconduct under the
Sexual Harassment policy, but when compared to punishment handed out over the
years or mitigated by arbitrators, a long-term suspension without pay or
benefits seems appropriate. The City was obligated to consider the 17-year work
history of O__ but also to balance that against the fact he was a supervisor,
working at night with probationary employees who are probably not expected to
complain because of their status. In examining itself, the City should
also consider the fact that the woman had to fumble around and ask questions
about the proper avenue of complaint, a fact that should be prominently posted
at all work sites and drilled home in training.
Of the cases cited above where there was no prior discipline and a
termination was mitigated to a return to work with no back pay, the maximum
time spent off the job was one year. It has been almost two years since O__ was
fired on October 6, 1999. In comparison, I do not believe O__ should be given a
suspension without back pay for almost two years because of arbitration and
procedural delays that were beyond his control. I believe my remedy for a
three-minute lapse of judgment could cost him numerous thousands of dollars in
lost wages and overtime pay as well as benefits, not including legal costs to
the Union for its vigorous defense of his action.
For the reasons stated above, I order the termination of O__ cancelled
and a suspension from October 7, 1999 to October 9, 2000, without pay or
benefits; and that he be restored forthwith with back pay and benefits, less
interim earnings, from October 10, 2000 to the day of his restoration to his
former position. I also order that a final warning be placed in his file
indicating a repeat finding of sexual harassment misconduct, including
retaliation against the complaining employee, will result in termination.
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