Before the Arbitrator
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION NO. 579
Affiliated with the International Brotherhood of
AVONMORE CHEESE, INC.
For the Union: Previant Goldberg Uelmen Gratz Miller & Brueggeman S.C.,
Law, by Ms. Heidi A. Eichmann, 1555 N. RiverCenter Drive,
Milwaukee, WI 53212.
For the Employer: Boardman Suhr Curry & Field, Attorneys at Law, by
Mr. Steven Zach,
Firstar Plaza, Suite 410, P.O. Box 927, Madison, WI 53701-0927.
Teamsters Local Union No. 579 (Union) and Avonmore Cheese, Inc. Cheese
Division (Employer, Company or Avonmore) are signatories to a collective bargaining
agreement providing for final and binding arbitration of grievances on which the Employer
and the Union are unable to agree as to settlement. On April 9, 1997, the Wisconsin
Employment Relations Commission received a request from the Union to appoint either a
Commissioner or a member of its staff to issue a final and binding award in the
above-entitled matter. The undersigned was appointed as arbitrator.An evidentiary hearing
conducted on June 23, 1997, in Monroe, Wisconsin. The proceedings were not transcribed.
Each party waived the filing of a brief.
The Employer operates a cheese-making facility in Monroe, Wisconsin. The
grievant, D.W. has been employed by Avonmore for eight years. For the past three years
he has also served as a union steward. He is and continues to be regarded as a good worker
by the Company. However, as a result of an incident that occurred on the morning of
March 21, 1997, following an investigation by the Company D.W. was suspended for one
day without pay for sexual harassment and ordered to attend Employee Assistance Program
(EAP) sensitivity training. The Union has grieved the Company's finding of sexual
harassment as well as the one-day suspension.
E.L. is employed as a lab technician at Avonmore. Lab workers are not represented
by the Union. She has been employed by this employer for three years, and achieved
permanent position status in November, 1996. E.L.'s duties include ranging plant-wide for
the purpose of obtaining samples from various sources in the cheese production area and
testing them to ensure compliance with health regulations. Samples are obtained by
swabbing the source with wet Q-tips and then transferring the sample to a petri dish.
Samples are required to be taken from not only the finished cheese products, but liquid and
solid ingredients used in the cheese-making process and production equipment and utensils.
The hands of production employes, as well as protective gloves and footwear worn by them,
are also swabbed weekly for samples and tested to ensure sanitary conditions are maintained.
Samples are tested in a small lab in the warehouse.
At approximately 10:00 a.m. on March 21, 1997, E.L. approached D.W. in the
production area in which he was working, and indicated she'd be back in five minutes for
samples. When E.L. returned, D.W. removed a long, protective apron he had been
and began to take off his protective gloves. E.L. explained that glove removal was
unnecessary because she intended to swab only the gloves.
According to E.L., she was swabbing D.W.'s gloved hands as she attempted to tell
him about the process. As she finished swabbing, E.L. reports D.W. saying to her, "I'd
rather have you check my penis." E.L. says she responded to D.W.'s comment by stating,
"I don't do that," and walking away.
D.W. acknowledges that he made a comment to E.L., but not quite the one she
reports. According to D.W., "I said my hands are just as clean as my penis." E.L.'s
response, D.W. said, consisted of a smile and the words "Oh, (name)." D.W.'s tone as
repeated the words he attributed to E.L. suggest that she uttered them in a reproving tone of
According to D.W., he made the comment he acknowledges before E.L. had
completed taking the sample from his gloved hands, and that she completed her task before
leaving. He further reports that there were two large fans on in the area which could have
impeded normal hearing. D.W. says he had no difficulty in understanding E.L. even though
he was wearing a hearing protector.
According to E.L., she had already taken her samples from D.W.'s gloves when his
comment was made. E.L. further stated she had no difficulty in hearing D.W., and does not
recall being conscious of any noise from the two fans in the area. E.L. recalled her surprise
at D.W.'s remark, because she " . . .had had only two or three-word conversations with him
before," e.g., "hi," "how are you?". She also reports being "speechless," and that she
look D.W. in the eye. E.L has no idea why D.W. would make a comment of that nature to
her. E.L. denies smiling after she heard D.W.'s remark.
D.W. further testified that after E.L had left his area, "I considered what I had said.
. . it was stupid. . . I wasn't raised to say things like that . . .it just came out. . . I wished I
could have taken it back." D.W. said he has since apologized to E.L. and believes she
accepted his apology.
E.L. reports that as D.W. was the last employe from whom she needed to take
samples, she returned immediately to the lab area where she reported the incident to a
co-worker in the lab. The co-worker, Bobby Fisher, advised E.L. to tell senior lab
Jane Coplien which E.L did. Coplien testified that E.L. reported D.W.'s comment to her as,
"I'd rather have my penis done." Coplien described E.L. as " . . . shaking and almost in
tears." Coplien reported the matter to the lab department supervisor Deidre Brannigan
because she believed E.L. was very upset. Ultimately, E.L. repeated her story to Jim
Crumbough, cheese division plant manager, in the presence of Brannigan. At this point the
company launched an investigation.
In the course of the investigation E.L. also reported a short conversation with D.W.
that had taken place the week before the one she reported. E.L. stated that in response to
greeting to D.W. of "how are you?," D.W. said, "horny." "That's not my problem," was
E.L.'s rejoinder. D.W. claims to have no specific recollection of the encounter, but
he could have made the retort attributed to him. E.L. did not believe the exchange amounted
to sexual harassment and had not reported it to anyone before the company began its
investigation of the March 21 incident.
As a result of the employer's investigation of the incident, further facts
concerning yet another conversation of an allegedly salacious nature that had taken place
in the week before March 21. Assistant cheesemaker and intake worker John S. Calow
described this incident at hearing. By way of background, Calow acknowledged a three -
year friendship with D.W. He also knows E.L. and " . . . jokes around with her."
According to Calow, he, D.W. and E.L were working in the same area on the date of the
incident. After D.W. had left the immediate area, E.L. asked Calow if he'd heard the
rumors that another female employe found D.W. attractive. Calow responded that the whole
plant knew about that. Calow quoted E.L as then using crude language to express her wish
that (name of female worker) would have sexual intercourse with D.W. and "get it over
with." Calow testified that he did not perceive E.L.'s comment as directed at himself and
that he relayed E.L.'s comments to D.W.
At hearing, E.L. conceded the incident occurred, but didn't remember using the exact
words attributed to her by Calow. E.L. recalled her words as, "I just wish (name of female
worker) would throw him down and get it over with so I wouldn't have to hear about this
any more." E.L. had discussed this conversation with Human Relations Director Carol
Kloepping in the course of the company's investigation of the incident on March 21. (E.L.
was responding to the company's inquiry about "gossip" in the plant and had talked with
Kloepping two or three times.) It does not appear E.L. ever spoke directly to D.W.
concerning the subject-matter of her comment. Nonetheless, E.L., was verbally reprimanded
by the Employer for her comment.
D.W. claimed to be a "little offended" by E.L.'s comment as relayed to him by
Calow. He denied that his "penis remark" to E.L. on March 21 was intended as retaliation
for her earlier observation to Calow. D.W. emphasized that sexual jokes were common in
the plant, but continued to express regret for his remark to E.L.. D.W. agreed his comment
was "inappropriate," and that he deserved some discipline for it. He continued to express
disbelief that it rose to the seriousness of sexual harassment.
D.W. said both he and Calow were summoned to management offices by Company
management at about 1:00 p.m. on March 21. D.W. anticipated the subject of the
interview was going was going to be E.L.'s comment to Calow. Upon being seated in the
designated office with Calow, he asked Calow to relate the story to the management
representative present. When Calow finished he was excused; D.W. was then confronted
with E.L.'s allegations concerning D.W.'s comment to her earlier that day.
At hearing, D.W. continued to maintain that his conduct did not rise to the level of
sexual harassment. He suggested that Coplien helped stir up concern about the incident
because of a certain animus towards him. D.W. explained that in his role as union steward
he had had several confrontations with Coplien over the scope of activities lab technicians
were permitted in the plant.
D.W. acknowledged that he has seen Avonmore's policy on sexual harassment. It
is not clear, however, when he had seen it, and the copy of the policy entered into evidence
appears to bear a date of 04/97. He continued to deny that his remark to E.L. was sexual in
In argument, the Company justifies its discipline of D.W., noting sexual harassment
is an offense which could lead to termination of employment. While acknowledging that
D.W.'s offense was not so problematic as to require termination, the Company underscored
the fact that the female to whom D.W. had directed his comment was clearly shocked by
what he said.
The Company believes EAP sensitivity training is also appropriate for several
reasons: 1) D.W. is a good worker whom the Company hopes to keep in its employ; 2) it
appears that D.W.'s level of understanding the elements of sexual harassment needs to be
raised; 3) the Company wants all of its employes to be able to function in a harassment-free
work-environment; 4) in the current climate of sexual harassment litigation employes should
understand that policies against sexual harassment not only protect the Company, but protect
its investment in each individual employe; 5) D.W. and the Union agree that the EAP
sensitivity training is appropriate.
The Union, on the other hand, argues that D.W.'s comment to E.L., while
inappropriate, didn't reach a level of sexual harassment which should be immortalized in his
employment record. The Union suggested that based on E.L.'s remark to D.W.'s friend and
co-worker John Calow (who then relayed the remark to D.W.), D.W. had no reason to
believe his subsequent comment to EL. a week later was "unwelcome."
The Union further argued that the Employer has previously allowed conversations
with sexual innuendoes to take place in the plant, and that D.W. was unaware that
conversational boundaries had been set in place.
While the Union was not contesting the requirement that D.W. attend EAP sensitivity
training, it believes the one-day suspension and loss of pay is excessive. It further urges that
if any discipline is imposed, it be for "inappropriate language" instead of "sexual
RELEVANT CONTRACT PROVISIONS
ARTICLE 9 - DISCHARGE AND
Section 1. The Employer will not
discharge, discipline or suspend any employee
without just cause. Should the Employer initiate disciplinary action against any
employee, the Employer will give the employee at least one (1) written warning and
Employer shall issue notice of such disciplinary action within five (5) workdays, pursuant
to the particular employee's work schedule, of having knowledge of the offense and will
follow a progression of disciplinary action depending on the circumstances of the incident.
In the event the disciplinary action taken by the Employer against the employee results in
time off, such time off shall be scheduled within ten (10) work days, pursuant to the
particular employee's work schedule. Written notification of the action taken shall be given
to the employee with a copy to the shop steward and the Union. Disciplinary action against
any employee shall not be considered precedent for disciplinary action against another
employee whether for the same or different offenses. In order to achieve a reasonable
progressive discipline system, the Employer shall have the right to discipline an employee
by demotion of the employee for a three (3) month period. At the end of the three (3) month
period, the employee will be returned to his former job. During the three (3) month period
the Employer may temporarily fill the vacancy without regard to the job posting procedures.
Section 2. The Employer may immediately
discharge an employee without resorting
to progressive discipline for the following serious offenses, which shall not be considered
1. Dishonesty and/or falsification of information or records.
2. Failure to report an accident.
3. Use, possession or being under the influence of alcohol or
illegal drugs on the
job or on the Employer's property at any time.
4. Carrying of unauthorized passengers while on the job.
5. Willful destruction of property.
6. Failure to report for work without notification for which there is
no valid excuse.
7. Contamination of company products.
8. Acts endangering the life or well being of employees or others.
9. Possession, display or use of any type of firearm on the job or
on the Employer's
property at any time.
Section 3. All disciplinary actions, including
warning notices, as herein provided
shall be null and void and of no effect after a period of nine (9) months from the date of
disciplinary action or warning notice.
ARTICLE 25 -
Section 3. The Employer and Union
agree that every employee is entitled to a working
environment free of verbal, physical, visual or other harassment because of race, color,
sex, age, national origin, sexual orientation, handicap, veteran status or any reason.
Harassment includes, but is not limited to, verbal or physical abuse, physical overtures
any kind of pressure to engage in sexual activity. Harassment of any nature is subject to
discipline and discharge.
* * *
EMPLOYER'S POLICY PROVISIONS
AVONMORE CHEESE, INC.
POLICY ON HARASSMENT
POLICY ON HARASSMENT
The Company agrees that every employee is entitled to a working environment free
of verbal, physical, visual or other harassment because of race, color, religion, sex, age,
national origin, sexual orientation, handicap, veteran status or any reason. Harassment
includes, but is not limited to, verbal or physical abuse, physical overtures, or any type of
pressure to engage in sexual activity.
Sexual harassment is a complex issue but essentially it is an issue of RESPECT. It
can be a divisive issue in the workplace, as some sides of (the) workforce may side with the
victim, others with the alleged harasser. The issue can affect (an) individual's work
performance, lead to low morale and tarnish the company's image.
WHAT IS SEXUAL HARASSMENT?
In general there are two type of harassment, the second being the most common:
1) Quid Pro Quo Harassment
From the (L)atin "this for that", this is when an employee is asked (by a higher
ranking employee) to exchange sexual favors in return for employment advancement,
benefits or job security.
1) Hostile Environment Harassment
This is sexually related activity, innuendo, objects or conduct that
creates an abusive or
hostile work environment for an employee. Harassment can be perpetrated by either sex
or even the same sex as the harasser. Often the harasser may not be aware they
(sic) are doing something wrong. Harassment is not when the harasser thinks (s)he is
harassing (the intent) but when the victim does (the effect). Harassment does not even have
to be physical. It can be verbal or non-verbal.
WHEN IS HARASSMENT SEXUAL HARASSMENT?
Harassment is sexual harassment when one of the following three exists:
1) Conduct is sexual in nature
2) Conduct is unwelcome by the recipient
3) Hostile environment is severe, repeated or invasive enough to effect
Hostile environment can be caused by jokes, comments, gestures, leering, pictures,
repeated requests for dates or touching. As stated, the harasser may not be even aware they
are doing something wrong. Harassment is in the eye of the beholder and behavior is
perceived differently. If in doubt - don't say or do it.
WHAT TO DO IF YOU FEEL YOU ARE BEING HARASSED
Any employee who believes he or she has been subjected to harassment in the
workplace is strongly encouraged to bring the problem immediately to the attention of their
(sic) Supervisor. If the complaint is against a Supervisor, then the employee may go to
another Supervisor or directly to the Director of Human Resources with the complaint.
Employees can rest assured there will be no retaliation for filing a sexual harassment
complaint in good faith nor will there be retaliation against anyone who cooperates in an
The Company will take appropriate corrective action, including disciplinary
measures when justified to remedy all violations of this policy.
Avonmore values a good working relationship free from harassment for all our
employees. Follow the Company policy on reporting instances - let your Supervisor know
and have it stopped. It's both your right and your responsibility.
The Company offered its definition of the issue: did Avonmore have just cause to
discipline Don Westby with respect to an incident which occurred on March 21, 1997.
The Union defined the issue as whether the incident which occurred on March 21,
1997 rose to the level of sexual harassment.
I define the issue as consisting of two parts:
1) Did the Employer have just cause to discipline D.W. with
respect to an incident
which occurred on March 21, 1997?
2) If so, was the discipline imposed reasonable under all of the
The Employer disciplined the grievant, D.W., for sexual harassment as a result of an
incident that occurred on March 21, 1997. The grievant, while in apparent agreement that
his comment was inappropriate, denies that it rose (sank) to the level of sexual harassment.
The contract does not define sexual harassment specifically, but defines all
contractually proscribed harassment (" . . . verbal, physical, visual or other harassment
because of race, color, sex, age, national origin, sexual orientation, handicap, veteran status
or any reason. . .") as including, but not limited to "verbal or physical abuse, physical
overtures or any kind of pressure to engage in sexual activity." The contract adds that
"(h)arassment of any nature is subject to discipline or discharge."
Presumably the Employer offered its unilateral "company policy" proclamation as
an interpretation of the contractual definition. The first section of the policy simply
reiterates the words of the contract. The remaining sections consist of a potpourri of
language, portions of which appear to augment or add to contract language instead of merely
For instance, under the heading "When Is Harassment Sexual Harassment?, " the
Employer asserts that only one of three conditions need exist for it to
occur: 1) the conduct
is sexual in nature; 2) the conduct is unwelcome by the recipient; 3) a hostile environment
is (created) and is severe, repeated or invasive enough to affect work.
Thus, under the first condition any jokes of a sexual nature shared
constitute sexual harassment, whether or not the joke was mild, welcome, or the listener(s)
were not offended; under the second circumstance any unwelcome criticism
or comment to
a co-worker (e.g., "your hair looks terrible," "the Bears play football poorly," "your car is
really ugly,") also constitutes sexual harassment even though the comments or conduct are
neither sexual in nature nor discriminatory; similarly, the third circumstance listed also lacks
a nexus to conduct that is sexual or discriminatory in nature. Yet, under the law bad taste,
poor manners, or coarse conduct, while clearly undesirable and sometimes offensive, does
not necessarily constitute sexual harassment.
Viewed in this light, this portion of the Employer's policy seems unreasonably
broad, at least as a guide to contract interpretation. Though undoubtedly intended to
contribute to a more harmonious workplace, on its face it appears to go well beyond
court-fashioned interpretations of "sexual harassment", and thus loses value as an
guide to the parties' labor contract.
Sexual harassment is a form of unlawful discrimination.
"Sexual harassment which creates a hostile or offensive
environment for members
of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial
harassment is to racial equality. Surely a requirement that a man or woman run a gauntlet
of sexual abuse in return for the privilege of being allowed to work and make a living can
be as demeaning and disconcerting as the harshest of racial epithets."1
By its nature sexual harassment cannot be
measured by " . . . a mathematically
precise test. . . (W)hether an environment is "hostile" or abusive" can only be determined
by looking at all the circumstances. These may include the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work performance."2
"The gravamen of any sexual harassment claim is that the alleged sexual advances
were 'unwelcome.' . . . The correct inquiry is whether the complainant by her conduct
indicated that the alleged sexual advances were unwelcome. . ."3
In the instant matter, the uncontested facts indicate that D.W. made a comment to
E.L. that included a totally gratuitous reference to D.W.'s penis. The week before, in
response to a routine "how are you" greeting by E.L. to D.W., D.W. had told E.L. he was
"horny." E.L.'s response was "that's not my problem."
Standing alone, neither utterance by D.W. necessarily constitutes sexual harassment,
even though each (the second, in particular) could be deemed "offensive." But under the
totality of circumstances, I believe D.W.'s allusion to his reproductive organ does constitute
sexual harassment: not only was it offensive, but it could have been interpreted by a
reasonable person as a thinly veiled sexual invitation.
4 Perhaps that accounts for the umbrage
E.L. obviously took. Clearly the comment was unwelcome and created for E.L. a hostile
or abusive work environment.
Notwithstanding the apparent propensity of plant workers for sexual joking, D.W.
should have known this. By virtue of E.L.'s earlier reply to his telling her he was "horny,"
the woman plainly informed him that she had no interest in his sexual condition. Her reply
was (or should have been) more than sufficient to alert D.W. that any further comments to
her that described his sexual state were unwelcome. Apparently, he wasn't listening.
Nonetheless, E.L.'s rebuff is the catalyst that serves to convert a coarse, mindless, and
probably spontaneous jest into an invasive instance of sexual harassment.
The fact that E.L. contributed to plant gossip concerning the alleged "crush" another
female employee had on D.W., between D.W.'s first and second comments to her doesn't
alter the unwelcome status of D.W.'s second comment to her. E.L.'s comment was
and demonstrated poor judgment. It is also immaterial.5 For the fact remains it was not
directed to D.W., but to a third employee. Under this circumstance it can be regarded as
neither an invitation to D.W. to continue references to his sexual persona in her presence,
nor a rescission of her rebuff to his initial sally.
Based on the foregoing, I find the Employer had just cause to discipline D.W. for
sexual harassment for his comment to E.L. on March 21, 1997.
The question as to the reasonableness of the Employer's discipline remains.
Nothing in the record indicates that the sexual comment by D.W. was made with
the intent to demean or embarrass E.L. Neither does the record compel the view that the
comment was intended by D.W. as either a sexual invitation or intimidation. Certainly the
comment does not appear to have physically threatened E.L., nor can it be characterized as
representing a frequent occurrence. While these factors do not absolve D.W. of the sexual
harassment with which he is charged, they significantly reduce the seriousness of the
offense and work in mitigation of penalty.
I am also influenced by the apparently sincere contrition of D.W. that has included
an almost immediate recognition that his words were inappropriate, a public
acknowledgment of this at hearing, and a pre-hearing apology to E.L. which was apparently
accepted by her.
I recognize that the Employer has already extended to D.W. what it believes to be
the benefit of considerable discretion. As the Employer points out, sexual harassment can
be a serious offense for which an employe can be fired. The conduct in this case did not
reach those proportions; moreover, the Employer did not wish to fire an employe it
continues to regard as valuable. At the same time, the Employer wanted to give a strong
message to its work force that sexual harassment would not be tolerated.6
Balancing all of the circumstances of the case, however, I believe the l-day
suspension imposed on D.W. is excessive and should be reduced to a written reprimand.
This reduction, however, should not be regarded by any employee as diluting the Employer's
obvious unwillingness to tolerate sexual harassment.
The Employer also ordered D.W. to attend EAP sensitivity training on sexual
harassment. I sustain this directive. I regard it as corrective and educational, not punitive.
The willingness of D.W. to attend this training is not particularly material, except as an
indication that D.W. will likely be in a mindset to profit from it.
Finally, it deserves to be noted that by agreeing to a non-discrimination provision
that proscribes the various forms of harassment listed therein, it is very apparent that the
Employer and the Union are attempting to create a workplace that is more harmonious,
humane, and productive as well as trying to reduce their own potential liability for
unauthorized discriminatory actions. The parties are to be commended for their concern
and their foresight.
The grievance is in part sustained and in part denied. The Employer is directed to
restore to D.W. the one-day's loss of pay incurred as a result of the suspension from work
and to expunge said suspension from its personnel records. The grievant shall receive a
written reprimand for his conduct on March 21, 1997, pursuant to the provisions of Article
9, sections 1 and 3 of the parties' labor agreement. The remaining condition imposed by
Employer on D.W. as to EAP sensitivity training on sexual harassment is sustained and
hereby directed, but D.W. shall be on "in-pay" status while attending such training.
Dated at Madison, Wisconsin this 24th day of September, 1997.
/s/ A. Henry Hempe__________________
A.Henry Hempe, Arbitrator
1. Henson v. Dundee, 682 F.2d 897,902
(1982) cited with approval in Meriter Savings
Bank, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 40 (1986).
2. Harris v. Forklift Systems, 510 U.S. 17, 22-3,
114 S.Ct. 367, 126 L.Ed.2d 295 (1983).
3. Mertier Savikngs Bank v. Vinson, 477
U.S. 57, 68 (supra, at note 1).
4. Since this could be inferred from either reported
version of D.W.'s utterance, it is
unnecessary to sort out which version more accurately dipicts what was said.
5. Since the E.L.'s comment is immaterial to a resolution
of this matter it is unnecessary to
determine which version of E.L.'s comment is accurate.
6. The Employer and Union may also wish to consider a
joint-educational approach to the