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116 LA (BNA) 906
September 12, 2001
Richard G. Remmes, Arbitrator.
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?
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.
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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