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Arbitration Award
State
of Minnesota
Dept.
of Administration
and
117
LA (BNA) 1569
BMS
Case No. 02-PA-1156
December
2, 2002
Charlotte
Neigh, Arbitrator
Issues as Stipulated by the
Parties
1. Did the Employer have just
cause to discharge the Grievant on January 29, 2001?
2. If not, what is the proper remedy?
In September 2000 a Plant
Management Division employee reported seeing a picture of a naked woman on a
coworker's computer. This caused the Division to investigate the coworker,
which led to a review of the e-mail accounts of employees in contact with the
coworker. This revealed a large number of “adult content” e-mail messages and
attachments exchanged among the small group of employees initially reviewed.
This precipitated a full-scale investigation, including the services of outside
consultants specializing in internet use, and the services of a computer
forensic expert from another state agency. This expert recovered and analyzed
data from several hard drives, including the one from the computer used by the
Grievant.
Approximately thirty employees were investigated for both e-mail and
internet usage and content, resulting in a range of disciplinary actions: none;
written reprimand; one-day suspension; three-day suspension; five-day
suspension; ten-day suspension; fifteen-day suspension; and discharge. The
Grievant was one of three who were discharged.
A 1/29/01 letter to the Grievant
stated that he was being terminated from his employment effective immediately
for:
“using your state computer to access adult content
internet sites and for sending inappropriate e-mails to other department
employees. These sites included images that were sexually explicit and
contained violence and nudity. These activities violate the sexual harassment
policy and the statewide electronic communications and technology ethics
policy. There is no work related reason for you to engage in this behavior.”
“You
were present at a training session on October 21, 1998 when the state
electronic communication and technology ethics policy was presented by your
supervisor. You received another copy of the policy on February 7, 2000. You
also received information on proper use of division computers in March of 2000.
Despite these clear instructions about use of the computer, you repeatedly used
your computer to access adult sites that included both nudity and violence.”
The Union filed a grievance dated
2/6/01 that did not specify the basis for the grievance. By Memorandum dated
4/2/01 the Department's Director of Labor Relations responded to the third-step
grievance meeting held on 3/29/01, stating that the Union was contending that
the Department had not met just cause standards for notice or equal treatment.
The parties were unable to resolve this matter and, at the initiative of the
Employer, it proceeded to arbitration.
The employer argues that:
• The Grievant flagrantly violated the policies on harassment,
violence and proper use of the computer, and the trust placed in him to be a
good steward of the State's time and equipment.
• The State is required to have a workplace free from harassment
and violence; the Department could suffer consequences from the Grievant's
conduct, as it had potential liability for harassment if other employees had
encountered the material on the Grievant's computer.
• This
incident was reported in St. Paul's major newspaper, resulting in embarrassment
to the State as an Employer, as questions were raised about such use of time
and equipment paid for by tax dollars.
• The
Grievant admitted to using State time and equipment to search for and access
violent pornographic websites that were demeaning, threatening and disgusting.
• The Grievant was given ample notice that he could be discharged
for the type of activity he engaged in: he had received copies of the
Department's policies and had received training regarding them.
• Even without
dissemination of the policies and the training, plain common sense should have
indicated to the Grievant that searching out and accessing pornography, female
bondage and abduction sites that showed graphic torture and mutilation of
fearful victims, on state time using the state computer, is wrong and would be
subject to discipline including discharge.
• Discharge
is an appropriate remedy because of the extraordinary type of sites repeatedly
accessed by the Grievant.
• The Grievant was not treated differently than other employees; a
fair and consistent method of determining the appropriate degree of discipline
resulted in a range of discipline, including three supervisors being suspended
and one supervisor being discharged.
• The grievance should be denied and the discharge upheld.
• If the Grievant
is to be reinstated, it should be without back pay because: he committed
serious violations; he has been employed elsewhere; and it has been nearly two
years since his discharge because the Union delayed pursuing the
grievance.
The union argues that:
• The
discipline was too severe for the admitted offense; it was not consistent, as
other employees got a lesser punishment, and was motivated by personal values
in reaction to content rather than a professional review of any actual
violation.
• The Grievant
had a good employment record and accepted responsibility for his behavior when
he was questioned; a 28-year employee must be given an opportunity to correct
inappropriate behavior, which he surely would have done.
• The Grievant was unaware that his computer activity could form
the basis for a discharge: there was not a zero tolerance policy and the
Grievant was not on notice that discharge would be automatic.
• The
Grievant's behavior took place in a private setting, did not involve other employees,
and there was no complaint from any employee, therefore the Grievant's behavior
was not threatening or violent and no sexual harassment took place.
• The Employer failed to take immediate steps to stop the
activity, or to act on the Grievant's alleged violations of the violence and
sexual harassment policies.
• The Employer subsequently took measures to prevent the employees
from accessing such sites.
• The Grievant should be reinstated and made whole, and the
discipline pulled from his file.
The Union does not dispute that the Grievant used the State-owned
computer to access the websites and pages identified by the Employer, although
the Grievant said that he was unable to remember some of them. The fundamental
question is whether the Employer had just cause to impose the penalty of
discharge. In support of this most extreme penalty, the Employer relies on
workplace policies regarding violence, harassment, and appropriate use of
computers.
Neither party offered evidence or argument regarding the interpretation
and application of this Policy. A reading of the Policy suggests that in order
for it to be violated, an employee or a visitor must be on the receiving end of
a threat or some aggressive behavior by an employee. The facts of this case do
not support a violation of this Policy.
The
Union correctly points out that the Grievant's activity seems to have been
unobserved by and unknown to other employees, and so arguably did not violate
the Harassment Policy. On the other hand, the Employer has reason to be
concerned about its potential liability if someone would encounter the material
that the Grievant was viewing on his computer, which arguably could be
considered to create a negative or hostile work environment. It is not
necessary to determine whether the Grievant's conduct constituted sexual
harassment because this grievance will be decided based on the computer use
Policy.
Statewide Policy: Electronic
Communication and Technology Ethics (Effective November 15, 1997)
This Policy expressly governs the
Grievant's misuse of the State's computers, e-mail and internet access. The
Grievant received information and training regarding this Policy, which clearly
prohibits the type of activity in which he deliberately engaged. This Policy
also incorporates the provision of Minn. Stat. §43A.39 Subd. 2, that an
employee who intentionally fails to comply shall be subject to disciplinary
action. Article 16, Section 3 of the Labor Agreement includes discharge in the
list of disciplinary actions or measures. There was no basis for the Grievant
to expect that discipline resulting from his conduct could not include
discharge.
The Union's primary argument is that management was inconsistent and
unfair when it determined that the Grievant should be discharged while imposing
lesser discipline on other employees who were found to have misused e-mail
and/or internet access. The Union even suggests that the harsher treatment of
the Grievant stemmed from the personal discomfort that was expressed by one of
the investigators regarding some of the content of the sites that he visited.
However, this theory is not supported by the evidence.
The Employer carefully created a rational, systematic plan for
evaluating the various kinds and degrees of inappropriate use of e-mail and the
internet; there is no evidence that this plan was outcome oriented for the
purpose of discharging the Grievant. A team that included representatives of
management, human resources, the Department of Employee Relations, and internal
and external investigators met and consulted about how to evaluate the
employees' activities. A consultant/investigator with experience in
internet-pornography investigations advised that she ranked content at four
levels: 1) sexual jokes and cartoons with nudity; 2) more sexually explicit
materials, including nude pictures and stories or jokes about sexual acts; 3)
much more sexually explicit and violent pictures and stories; 4) child
pornography. She ranked the content of the Grievant's internet activity at
level 3. She also considered it relatively more serious to send than to receive
such e-mails, and even more serious to search out such material on the
internet, which the Grievant did.
The 5/31/01 draft summary of the
various discipline levels shows that:
• “Adult content” was defined as
nudity and sexual activity, language or innuendo in the form of images, videos,
animations, interactive animations and audios.
• The review of e-mail activity
emphasized the number of e-mail messages containing adult content attachments.
• Less weight was given to
receiving such e-mails than was given to sending them.
• It was considered as a
mitigating factor for employees who received such e-mails from their
supervisor, and an aggravating factor for a supervisor who engaged in such
activity.
• Weight was given to the amount of work time an employee spent on
non-work-related use of the internet.
• Weight was given to the degree of offensiveness of the content of
the materials.
• Misuse of both e-mail and
internet access was weighted more heavily than just one or the other.
These complex factors were
applied to all of the employees identified as violators of the Policy. The
result (per Employer Exhibit 5) was a range of disciplinary actions: none (5
employees); written reprimand (4); one-day suspension (3); three-day suspension
(3); five-day suspension (7); ten-day suspension (2); fifteen-day suspension
(3); and discharge (3).
The discharged employees included
a supervisor who received and distributed a large number of e-mail attachments
with adult content to 23 other employees, including three who reported to her.
Although her use of the internet had been minimal and had not included
pornographic sites, she was held to a higher standard because of her
supervisory obligations. The other person was discharged based on the extensive
amount of time that he spent on the internet, accessing adult content and other
types of non-work-related sites.
The basis for the Grievant's discharge was unique in this group: it was
the violent and pornographic nature of the content of the material that he
accessed. None of the other violators had used websites similar to those used
by the Grievant. The Grievant: intentionally used search terms such as
“abduction.com”, “torture.com”, and “bondage.com”; and repeatedly accessed at
least 30 websites and more than 100 web pages showing acts of violence against
naked and terrified women. The type of content viewed by the Grievant stood out
as violent and disturbing in comparison to the content of the sites visited by
the other violators, and in comparison to other cases in the experience of the
investigators.
Given the number and variety of violations by numerous employees, the
disciplinary scheme devised to address them was necessarily complex. It was not
unreasonable for the Employer to conclude that the nature of the material
accessed by the Grievant was more offensive; nor was it unreasonable to
conclude that more offensive misuse warranted a more serious penalty. It is
also valid under this Policy for the Employer to consider the embarrassment to
the Department and the State when such offensive workplace misconduct by a
public employee is exposed to public scrutiny, which it was in this case. The
Grievant's long-term employment and good record notwithstanding, the Employer
reasonably applied a carefully considered and rational set of factors to his
conduct, which logically led to a determination that his violation of the
Policy warranted termination of his employment.
The Employer had just cause to discharge the Grievant on January 29,
2001.
The grievance is denied.
Article
16—Discipline and Discharge
Section
5. Discharge. The Appointing Authority shall not discharge any permanent
employee without just cause ....
Effective
November 15, 1997
The State of Minnesota provides a
variety of electronic tools such as... computers . . . electronic mail (e-mail)
systems, Internet access and a browser for employees whose job performance
would be enhanced by the technology .... This policy memorandum governs access
to and the appropriate use of this technology during time periods before and
after work and during break periods by State employees in the executive
branch.
Employee access to and use of
electronic tools such as e-mail and the Internet is intended for
business-related purposes. Limited and reasonable use of these tools for
occasional employee personal purpose that does not result in any additional
costs of loss of time or resources for their intended business is purpose is
permitted ....
Employee Responsibility:
Executive branch employees are responsible for appropriate use of e-mail and
Internet access. They are expected to adhere to the highest ethical standards
when conducting State business and to follow the Code of Ethics and related
State statutes applicable to executive branch employees. For example:
Minn. Stat. §43A.38, Subd. 4
provides “Use of state property”:
(a) An employee shall not
use or allow the use of state time, supplies, or state owned or leased property
and equipment for the employee's private interest or any other use not in the
interest of the state, except as provided by law ....
Minn. Stat. §43A.39, Subd. 2
provides “Noncompliance”:
Any employee who
intentionally falls to comply with the provisions of Chapter 43A shall be
subject to disciplinary action and action pursuant to Chapter 609.
Appropriate Use: State employees need to use good
judgment in Internet access and e-mail use. They are expected to ensure that
e-mail messages are appropriate in both the types of e-mail messages created
and the tone and content of those messages. Employee use of e-mail and the
Internet must be able to withstand public scrutiny without embarrassment to the
agency or the State of Minnesota.
Examples of inappropriate use include, but are not limited
to:...
• Receipt, storage or transmission of
offensive, racist, sexist, obscene or pornographic information...
The traditional communication rules of reasonableness,
respect, courtesy, common sense, and legal requirements also apply to
electronic communication. For example, actions that are considered illegal such
as gambling and harassment are not up to the discretion of individual agencies
or individual managers or supervisors: these actions break the law whether the
behavior is conducted on e-mail or by another means of communication, and they
may subject the employee to disciplinary action up to and including discharge.
Employees ... may receive
inappropriate and unsolicited e-mail messages. Any such messages should be
reported immediately to the employee's supervisor and any other designated
official within the employee's agency ....
Monitoring: ... The State
reserves the right to monitor all use of e-mail and Internet resources at the
time of use, during routine post-use audits, and during investigations.
The Minnesota Department of Administration believes that
harassment has no place in the work environment. Therefore, it is the
department's policy to prohibit harassment of its employees based on race,
color, creed, religion, national origin, sex, marital status, status with
regard to public assistance, membership or activity in a local commission,
disability, sexual orientation, or age. This prohibition with respect to
harassment includes both overt acts and other actions that create a negative or
hostile work environment .... Any unintentional or deliberate violation of this
policy by an employee will be cause for appropriate disciplinary action
....
Discriminatory harassment is any
behavior based on protected class status that is unwelcome, personally
offensive, insulting or demeaning ....
Sexual harassment has also been
specifically defined by the Minnesota Human Rights Act, which states in regard
to employment, that:
“Sexual harassment” includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when: ... (3) that conduct or communication has the purpose or effect of substantially interfering with an individual's employment, and in the case of employment, the employer knows or should know of the existence of the harassment and fails to take timely and appropriate action. * * *