BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS UNION, LOCAL
ASSOCIATED MILK PRODUCERS, INC.
General Teamsters Union, Local 662, herein the Union, and Associated Milk
jointly requested the Wisconsin Employment Relations Commission to designate the
an arbitrator to hear and to decide a dispute between the parties. The undersigned was so
The parties waived the contractual Board of Arbitration and agreed that the undersigned
the sole arbitrator in the matter. Hearing was held in Blair, Wisconsin, on March 18, 1998.
stenographic transcript was made of the hearing. The parties filed post-hearing briefs, which
were exchanged on April 30, 1998.
The parties stipulated to the following issues:
Was the grievant, MD, terminated for just cause? If not, what is
the appropriate remedy?
The Company and the Union are parties to a collective bargaining contract covering
production and lab employes at the Blair, Wisconsin plant. The grievant, MD, was a
employe who had been employed by the Company for about 25 years at the time of his
MD worked in the Intake Department and part of his duties required that he go into the Lab
time to time with milk samples. MD would spend some time in the Lab marking the
performing various clerical duties and placing the samples in the cooler in the Lab.
LT is an office employe and is not in the bargaining unit. She has worked for the
for about 8 years. LT's duties require her to go into the Lab to pick up certain paperwork,
to herein as manifests, each weekday morning, i.e., Monday through Friday, and also each
about mid-afternoon, i.e., around 3:00 p.m. The manifests, which relate to the bulk milk
to the plant, are stored in a metal container attached to the wall near one of the entrances to
The manifests are loose pieces of paper which are not neatly arranged, but rather are merely
into the container. When she picks up the manifests, LT usually holds them against her
one or both arms so that the manifests are not blown onto the floor by the air flow as she
Lab door to leave. The Lab floor is usually wet, so the manifests could get wet and be
read if they landed on the floor. After leaving the Lab, LT walks through the Intake
across an outside area to the scalehouse where she picks up additional documents. She then
through the outside area into the main office building and goes up a flight of stairs to the
office area where she works. A shipping clerk also works in the same office area where LT
On Friday, November 7, 1997, LT entered the Lab shortly after 3:00 p.m. She
employes who were in the Lab. Those employes were Jim Sendelbach, Doug Holte and Jim
While LT was removing the manifests from the container on the wall, MD entered the Lab.
LT that she could not take two of the manifests because he was still working on them. MD
had some discussion about whether they would see each other at a party on the next day.
point on, LT and MD relate quite different versions of the succeeding events.
LT gives the following version of the incident. As she was standing with both of her
holding the manifests against her chest, MD grabbed her shoulders with his hands, straddled
leg with his legs and rubbed his genitalia up and down on her leg several times. LT pushed
from MD and looked at him briefly, then she turned and went out the Lab door. When LT
back into the Lab through a window, she saw MD and Holte laughing, while Sendelbach put
hands up in the air and shook his head. She does not remember what Hughes was doing.
proceeded to the scalehouse to get the paperwork there, then she returned the scalehouse key
first floor office area and went back to the second floor office area to do her paperwork.
She did not
want to tell Jim Kleva, the Blair
Division Manager, about the incident until the other office people were gone. After
sitting at her desk
for about a half hour, LT went to Kleva's office to see how long he would be at the plant.
when she went into his office, she decided to tell him right away about her encounter with
she did. After hearing LT's account, Kleva got his coat and left the office area. LT
returned to her
desk, until about 4:25 p.m. when she got ready to go home. At that point Kleva returned to
and asked LT if she was able to drive home. LT said she was able to drive home and then
punched out on her timecard and left to go home.
MD gives the following version of the incident. MD said that he reached up and got
manifests out of the wall container for LT, but that he did not touch her while he was getting
manifests. He and LT talked some about a birthday party. They both were joking and
said he then put his left arm around LT's shoulders and pulled her right side against his left
give her a hug. MD denied rubbing against her leg or any other part of her body. MD said
not give any verbal indication that she was bothered by the hug, but rather, they were talking
laughing as they walked out of the Lab together. MD said that LT then continued through
door of the building and he returned to the Lab.
Holte gave the following version of the incident. While LT was on her tiptoes trying
the manifests from the wall holder, MD went over and put his left hand or arm on her left
and with his right hand he took the manifests from the wall holder for her. Holte did not
MD had lifted LT so she could reach the manifests. In a written statement submitted to the
on November 11, Holte went on to say that MD placed his right hand on LT's left shoulder
they were talking, but the statement did not mention MD giving LT a hug. During his
the hearing, Holte said that he thought MD put an arm around LT's shoulders and gave her a
In both his written statement and his testimony at the hearing, Holte said that LT was
talking to MD as she left the Lab and did not appear to be upset.
Sendelbach did not testify at the hearing, but he did prepare a written statement on
8 containing the following version of the incident. As LT was reaching up to get the
the wall container, MD used both of his hands to pick her up by the waist, presumably to
reach the manifests. Sendelbach stated that he was totally surprised, but his statement does
explain why he said he was surprised.
At the hearing a shipping clerk, Diane Herried, who works in the same second floor
area where LT works, testified that, when LT returned to the office in the late afternoon on
November 7 after collecting the manifests from the Lab, she seemed normal. Herried said
talked with LT and LT did not seem upset nor did she say anything about an unusual
On Saturday, November 8, LT telephoned Ralph Bentz, another Company official,
the incident to him. On Monday, November 10, at the Company's request, LT prepared a
account of the incident. Also on November 10, the Company suspended
MD without pay while it investigated the incident. On Tuesday, November 11, LT
met with the
Company's Human Resources Director, Gaile Bjerke. On the same date, Bjerke, Kleva and
Union representatives also met with MD, Holte, Sendelbach and Hughes. On November 19,
the Company discharged MD for violating the Company's sexual harassment policy. MD's
discipline had been a warning regarding facial hair about 15 years ago.
The Company has a written policy on sexual harassment, which policy was given to
employes, including MD, in November of 1991. Said policy is also contained in a document
"Employee Guidebook." The Company policy on sexual harassment reads as follows:
EQUAL EMPLOYMENT OPPORTUNITY
"In American society today, there can be no
place for actions or policies which serve to
discriminate against certain groups on the basis of outdated concepts. Legally, morally, and
economically, activities of this type are not and should not be acceptable. AMPI recognizes
firmly supports the proposition of equal opportunity for all people."
Corporate EEO statement
Your employer believes that the work place
should be safe, productive, and as pleasant an
environment as possible. Although Equal Employment Opportunity laws (or EEO) have
been revised to include specific groups or classes of protected people, the EEO statement
Hiring, Recruitment, (sic) training and
promotion, personnel actions, compensation, benefits,
layoffs & recalls, social & assistance programs must all be administered without
The 1992 Americans with Disabilities Act
or ADA also mandates that reasonable accomadations
(sic) must be made in the work place in order to further provide employment opportunities
disabled. Employers are to focus on abilities, and accomodate (sic) or work around the
Sexual Harassment (sic) in the work place is
illegal and will not be tolerated.
Sexual harassment is defined as unwelcome
sexual advances, requests for sexual favors and other
verbal or physical conduct of a sexual nature including, but no (sic) limited to, the following:
1. Abusing the dignity of an employee
through insulting or degrading sexual remarks or
2. Threats, demands or suggestions that an employee's work
status is contingent upon the
employeee's (sic) toleration of or acquiescence to sexual advances;
3. Displaying in the work place, sexually
suggestive objects or pictures; or
4. The creation of a "hostile
environment" which has the purpose or effect of substantially
interfering with another individual's employment by creating an intimidating, hostile or
Complaints are to be directed to you (sic)
immediately supervisor. If this is a problem, the next
supervisor should be contacted or the manager or the coordinator.
Violations of this policy shall be
investigated and are grounds for immediate discipline up to &
ARTICLE 9. DISCHARGE
Section 1. The Cooperative shall not discharge
employee without just cause, but in
respect to discharge shall give at least one (1) warning notice of the complaint against such
to the employee, in writing, and a copy of the same to the Union, except that no warning
be given to an employee before discharge if the cause of such discharge is dishonesty,
or reporting for work under the influence of illegal drugs or alcohol, or for other grave
employee may be disciplined (including discharge) for violation of company rules so long as
rules are not in conflict with any of the terms and provisions of the contract. . . .
POSITION OF THE UNION
The Company lacked just cause to discharge MD and he should be reinstated with
LT's account of the events on November 7 is unsupported by the evidence.
The Company did not call Holte, Sendelbach or Hughes as witnesses at the hearing to
corroborate LT's allegations. Normally an employer risks a negative inference when it fails
known witnesses to support its case. In this instance, a negative inference is unnecessary.
called Holte to testify and he corroborated MD's testimony and discredited LT's allegations.
specifically recalled that LT was laughing as she left the Lab on November 7. Further,
written statement did not support LT's allegations.
LT does not allege any sexual overtures from MD either on November 7 or on any
occasions. Thus, with no advance notice, LT alleges that MD moved directly from an
platonic conversation to "humping" her leg and then releasing her without speaking. LT
that she did not make any protests during the alleged "humping" nor did she ask for help
three other employes in the Lab.
LT's actions were not consistent with her claims of emotional distress. Herried, who
after the alleged incident, said LT seemed completely normal. LT did not take any time off
work until weeks after November 7. The Company offered to arrange professional help for
responded that she had not thought of getting professional help, but wondered if she needed
attorney. LT testified that she was ashamed to tell people about the incident, but she did call
Bentz, the Assistant Division Manager, at his home within a day of the incident, although
already reported the incident to Kleva, the Division Manager.
POSITION OF THE COMPANY
LT's version of the incident is much more credible than is MD's version. While MD
agree with LT's version of his actions, he and virtually all of the witnesses testified to some
physical contact. Even assuming MD's version to be correct, he was guilty of a physical
which, at the work place, was harassment. The fact that LT didn't either verbally accost
MD or say
no does not make the conduct acceptable or any less an act of assault/sexual harassment.
MD's behavior was unwelcome physical conduct of a sexual nature which created an
offensive, if not hostile, working environment, interfered with LT's employment and abused
dignity. Thus, it was illegal sexual harassment which violated Company policies, and was a
offense under the contract. The contract says that discharge is appropriate for a gross
Accordingly, the Company requests that the discharge be sustained.
As described earlier, LT and MD gave very different versions of the incident on
7. Both versions did refer to some form of physical contact between LT and MD. LT
MD deliberately straddled her right leg with his legs and rubbed his genitalia up and down
several times. LT said she pushed away from MD, looked at him for a few seconds, then
went out the Lab door. LT further stated that she did not say anything to MD, nor did he
anything to her, during the time he had physical contact with her and as she left the Lab.
MD admitted that he gave LT a quick hug, but said only their sides touched during
MD denied straddling LT's leg and/or rubbing his genitalia on her. MD said he and LT
talking and laughing when they went out the Lab door. MD also said that LT then left the
and he returned to the Lab.
There were three other employes in the Lab when the incident occurred. One of the
employes, Hughes, told the Company that he did not see or hear any interactions between LT
MD because he had his back turned toward them. Both of the other two employes, Holte
Sendelbach, described different kinds of physical contact between LT and MD. However,
those descriptions supported LT's assertion that MD straddled LT's right leg with his legs
rubbed his genitalia up and down her leg several times. Sendelbach's written account of the
contained the following statements:
As (LT) was reaching up to get the manifest out of the contained,
(MD) picked her up with both
hands and lifted her up for a few seconds. I was totally surprised at what I saw. After LT
her manifest, they (MD and LT) walk out of Lab together.
Neither Sendelbach nor Hughes were called as witnesses at the hearing.
Holte described two instances of physical contact. The first contact occurred when
a hand on LT's shoulder while reaching to get the manifests out of the wall holder for her.
talking at that time, but Holte said he could not hear what was being said. The second
occurred when MD put his right hand on LT's left shoulder and gave her a quick hug. Holte
that LT was laughing and talking when she left the Lab and she did not seem upset after the
LT does not allege that MD made any suggestive or sexual comments to her during
conversation before he straddled her leg. Neither is there anything to indicate that MD had
sexual overtures to LT prior to November 7.
LT said she did not say anything either to MD or to the other employes in the Lab
during, or after, the alleged incident. Such a reaction may well have been caused by
Company accurately contends that LT's failure either to say "no" to MD or to verbally
assistance from the other employes in the Lab does not make the alleged conduct acceptable
Kleva testified that, when LT came into his office on November 7, she was obviously
since she had difficulty in talking, her face was discolored, and she was shaking all over.
Herried, the Shipping Clerk who worked in the same office area with LT, testified that when
returned to the office in the late afternoon on November 7, she did not
appear to be upset, but rather, she seemed normal. They talked and LT did not
mention any unusual
incident. The Company asserts that such a difference in appearances can be explained by the
it would not be unusual for LT to try to maintain a normal composure in the presence of her
office employe while trying to decide if she should tell Kleva about the incident. The
not persuaded that such an assertion should be given much, if any, weight.
The Company's decision to suspend MD pending an investigation of the incident was
reasonable in light of the seriousness of the allegation. The Company concluded that the
justified converting the suspension to a discharge. In doing so, the Company gave full credit
version of the incident. Based on the testimony and the exhibits presented at the hearing, the
undersigned cannot agree with the Company's decision to discharge MD.
Sendelbach said MD and LT walked out of the Lab together. While Holte was not
sure if MD
and LT went out of the Lab door together, he did say that LT was laughing and talking when
the Lab. Thus, neither witness supports LT's testimony that she pushed away from MD and
Lab alone without saying anything. I do not doubt that LT sincerely believes the physical
between MD and herself was of an intentional sexual nature. However, I am persuaded that,
he hugged LT, MD did not intend his conduct to have any sexual connotations. Still, if his
did make contact, even if it was unintentional, with LT's leg during the hug, then LT
have interpreted the contact to have been intentional. Although a hug might be acceptable
good friends, in the instant case it apparently was either misinterpreted or was viewed as
than a hug. MD did not have the right to initiate physical contact with LT. Such conduct
possible the inference of intentional contact of a sexual nature. Indeed, a hug may constitute
of sexual harassment. However, in the instant matter, even if the hug was unwelcome, the
act did not
constitute a grave offense for which immediate discharge was appropriate. But the act was
sufficiently serious so as to justify discipline. The undersigned concludes that MD should be
reinstated to his job, but the reinstatement is to be without back pay.
Based on the foregoing, the undersigned enters the following
That the Company did not have just cause to terminate MD's employment; that the
did have just cause to discipline MD; and, that MD be reinstated immediately, but without
Dated at Madison, Wisconsin, this 25th day of June, 1998.
Douglas V. Knudson, Arbitrator