BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL NO. 1086
ADVANCE CAST STONE COMPANY
(Termination of Jessica T**1)
McNally, Maloney & Peterson, S.C. by Attorney Charles
Magyera, 2600 North Mayfair Road, Suite 1080,
Milwaukee, WI 53226-1309, appearing on behalf of Advance Cast Stone Company.
Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, S.C., by
Attorney John J. Brennan, P.O. Box 12993,
Milwaukee, WI 53212, appearing on behalf of Laborers International Union of North
America, Local No. 1086.
Pursuant to the provisions of the collective bargaining agreement between the parties,
Union of North America, Local No. 1086 (hereinafter referred to as the Union) and Advance
Cast Stone Company
(hereinafter referred to as the Company) requested that the Wisconsin Employment Relations
the undersigned as arbitrator of a dispute over the termination of Jessica T**1. A hearing
was held on December 20,
2000, at the Company's offices in Random Lake, Wisconsin, at which time the parties were
afforded full opportunity
to present such testimony, exhibits, other evidence and arguments as were relevant. The
parties submitted the case on
oral arguments at the end of the hearing, whereupon the record was closed.
Now, having considered the testimony, exhibits, other evidence, contract language,
arguments of the parties
and the record as a whole, the undersigned makes the following Award.
To maximize the ability of the parties we serve to utilize the Internet and
computer software to research
decisions and arbitration awards issued by the Commission and its staff, footnote text is
found in the body of this
The issues before the Arbitrator are:
Did the Employer have just cause to discharge the Grievant? If
2. What is the appropriate remedy?
DISCHARGE OR SUSPENSION
Section 12.1. The Company shall not discharge an
employee having seniority without just cause. The following
shall constitute grounds for immediate discharge without notice: dishonesty, drunkenness,
possession or use of
controlled substances on Company property or while on duty, or recklessness while on duty,
the carrying of
unauthorized passengers, or any conduct of equal severity. Before an automatic discharge
takes place, the Company
and the Union will discuss the offense.
Section 12.2. Any employee
may request an investigation as to the discharge or suspension. Should such
investigation prove that an injustice has been done an employee, he/she shall be reinstated at
his/her usual rate of pay
while he/she has been out of work. Appeal from discharge or suspension must be taken
within five (5) days by written
notice, and shall be submitted under the grievance procedure or arbitration as provided in
Article 7 of this Agreement.
Any employee "quitting" his/her job or discharged for just cause shall forfeit all rights
employment, including right to vacation not yet taken with this firm. An employee quitting
his/her job shall not lose
his/her accumulated vacation right for the year preceding his/her most recent anniversary
date of hire, provided that
said employee gives one (1) calendar week's notice in writing prior to leaving employment
with the Company.
. . .
ADVANCE CAST STONE CO.
Disciplinary action for the offenses listed below or similar actions
will take the following form:
OFFENSE: Written Warning: A formal notice documented in writing
a permanent part of the employee's personnel file.
SECOND OFFENSE: Suspension: A period of time up to one (1) week when
employee is not
permitted to work and is not paid.
THIRD OFFENSE: Discharge: Involuntary termination of employment.
applies if three (3) offenses for different infractions are accumulated in a six
(6) month period.]
LIST OF ACTIONS WHICH
WILL BE CAUSE FOR GRADUATED PENALTIES:
Repeated tardiness (both reporting for work and being at work stations at starting times and
Excessive absence from work stations for other than work purposes.
Unsatisfactory work performance.
of wash-up period.
Smoking in forbidden areas.
Loitering or loafing on the job.
8. Use of
profane or indecent language to, or the abuse of, fellow employees.
Soliciting or collecting contributions for any purpose on Company property without specific
Horseplay which may be endangering others.
THE FOLLOWING ACTIONS WILL RESULT IN
3. Possession or use of
controlled substances on Company property or while on duty.
Carrying of unauthorized passengers.
Conduct of equal severity to 1 through 5 above.
Before an automatic discharge takes place, the
Company and the Union will discuss the offense.
. . .
The Company fabricates and installs architectural concrete and brick. The Union is
the exclusive bargaining
representative of the Company's non-exempt employees, including those workings as
Patchers. The Grievant, Jessica
T**1, worked for the Company for two and a half years in a variety of jobs, and was
employed as a Patcher when she
was discharged in September of 2000.
In December of 1998, the Grievant complained to Company President Matt Garni
another employee, Jeff
R*****e, had touched her indecently and made inappropriate comments. Garni interviewed
R*****e and the
Grievant, and issued a warning to R*****e, cautioning that he would be immediately
discharged in there was another
occurrence of that type. He told the Grievant what he had told R*****e, and instructed her
to report any further
The relationship between the Grievant and R*****e continued to be bad, and in
March of 1999, she made
another complaint, this time about him calling her a "bitch." R*****e replied that she had
called him a low life and
had used profanity to him, and denied calling her a bitch. Garni interviewed the employees
identified as witnesses,
and could not confirm either story. He spoke with both employees about the use of offensive
language and told them
the Company would not tolerate it. Shortly after this, R*****e was discharged after an
unrelated incident of
misconduct. His conduct toward the Grievant was one factor in deciding that discharge was
an appropriate penalty.
In September of 2000, Plant Manager Kelly H++++s saw a truck that was dirty.
Someone had written a
message in the dirt on the vehicle, and he told the Grievant to wash it. She was clearly
unhappy with the assignment,
but agreed to do it. After this, H++++s made a comment to employee John Holbach to
the effect of "What's wrong with
her? It must be a monthly thing." Holbach repeated the comment to the Grievant later, and
she was offended. She
complained to Matt Garni. On Thursday, September 21, he convened a meeting with
H++++s to get his side of it, and
H++++s agreed that he might have said
something along those lines. He apologized to her for his remarks. Garni commented
had five daughters and he was sure that he meant nothing sexually offensive by the comment.
However, Garni told H++++s that he should not say such things to the Grievant, and had
a warning acknowledging that he had been told "do not talk about Jessica T**1 in any
The day before this, another employee, Jack Th##n, who was training the Patchers,
stopped in the office and
spoke to Office Manager Mary Garni, who is Matt Garni's sister. He told her that the
Grievant had commented to him
earlier in the day that her period had ended four days earlier, and that she was "bleeding like
a fucking pig." Th##n
found the comment offensive because he was not used to hearing ladies speak that way. The
comment was reported
to Matt Garni, but he was on his way out of town, so he did not speak with Th##n until
On Thursday, right after the meeting over the Grievant's complaint about
Foreman Roger A####a
stopped to speak to Matt Garni. He told him that the day before, he had told the Grievant to
take an air hose and blow
some dye off of a panel. She asked him if he would like her to blow it hard or soft, which
he took to be a sexual
innuendo. This was said in front of other crew members, some of whom laughed, and he
told Garni that he was
embarrassed by it. One reason A####a reported it to Garni was that he knew the Grievant
had been complaining about
others making sexually harassing comments, and he didn't feel he should have to endure the
same type of thing from
Shortly after A####a came to the office, Maintenance Supervisor Jim Mueller
stopped. He complained to
Garni that he had been walking past the Grievant and another employee when the Grievant
said loudly "I'm a bitch
Jim will verify that." Mueller had replied "Yeah, I'll verify that." This exchange
irritated Mueller, because he knew
that if he had called her a bitch she would have complained about him, and he felt there was
a double standard,
particularly in light of the warning given to H++++s.
Garni was out of the office on Friday, but he thought about the complaints against the
Grievant and by
Saturday morning he had decided she had to be fired. He told Plant Superintendent Roger
Meyer to meet her at the
door when she reported for work and tell her she was being discharged. Meyer instead met
with H++++s to discuss
the matter, and told Garni that they should first speak with someone from the Union. Garni
agreed, and he met with
Steward Regan Schmitt. He described the allegations against the Grievant and told him they
were going to terminate
her, because the various supervisors could not be expected to tolerate the comments and
language she had used.
Garni met with the Grievant and told her she was being terminated. She took a copy
of the termination notice,
which listed prior offenses in December of 1998 and March of 1999 "relative to Jeff
R*****e." The Disciplinary
Notice form contains two categories of offenses, those that are subject to progressive
discipline and those that are cause
for automatic discharge.
On this form, after the six listed causes for automatic discharge, was written in "7.
warned, by MG ACS would not tolerate offensive behavior. 3 separate instances brought to
attention in the last 24 to 48 hours. See back." The back of the copy she took with her did
anything written on it.
She immediately called Union Business Agent Miles Mertens and told him what had
happened. He told her
he would look into it, and on Monday Mertens received faxes from the Company containing
the notice of discharge,
and the back of the form. On the back of the original was written:
Jessica refused to sign.
1. Jessica to co-worker at wash
basin w/Jim Mueller. Jessica to co-worker "I'm a bitch" "Just ask Jim, he'll tell
you I'm a bitch."
2. Jessica to Jack Th##n talking about
her period and "bleeding all the time."
3. Jessica to Roger A####a
(foreman) in front of co-workers after Roger had asked her to blow off the color from
a panel Jessica had asked him if he would like "it blown slowly or fast" (sexually).
The instant grievance was thereafter filed protesting the discharge. It was not resolved
between the parties and was
referred to arbitration. At the arbitration hearing, in addition to the facts recited above, the
following testimony was
Matt Garni testified that he had previously warned the Grievant that
would not be tolerated in March of 1999 after the second incident with R*****e, and that he
considered this to be discipline for sexual harassment. He acknowledged that disciplinary
are removed from files after six months, and that the Grievant's personnel file did not
discipline for offensive language or profanity at the time she was discharged. He expressed
opinion that sexual harassment was subject to a stricter standard, and that the Company
sexual harassment as on a par with the serious offenses calling for automatic discharge. The
Company's policy called for one warning, and then termination for any second offense,
not six months had passed from the first offense. He acknowledged that the policy had not
reduced to writing, but said that employees were made aware of the policy when they were
their initial warning, i.e. they were told that another offense would lead to automatic
According to Garni, the reason that R*****e was not automatically terminated for the second
with the Grievant was that he felt both of them were at fault.
Garni agreed that he usually contacted Mertens before terminating an
employee if he felt
it was a close call, but that he thought this was a clear-cut case. While automatic discharges
advance notice to the Union, he felt that informing the steward was sufficient. In fact, when
the Steward he was firing the Grievant, the Steward said "fine, that's good." He was not
there had been other cases where employees were
summarily discharged without advising Mertens or the other full-time business
acknowledged that the general use of rough language around the plant was not unusual, but
that it was not common to have profanity directed to another employee.
Jessica T**1testified that she had no recollection
of ever receiving a warning or discipline
of any type from Garni over the second incident with R*****e, and was never told that she
be fired if she was responsible for an incident of sexual harassment. While she had had
discipline over her two and a half years of employment, she had never been disciplined for
language and never heard of anyone being disciplined for offensive language. She admitted
she used profanity from time to time, and said that other employees did as well.
According to T**1, when she met with Garni on Saturday, September
23rd, he told her she
was being terminated for offensive behavior, but refused to explain what behavior. When
pressed him, he mentioned something about Jim Mueller, and the word "bitch." She asked
copy of the discipline notice, and he told her the meeting was over. She grabbed a copy of
from the table and they walked her out of the plant. She did not know about the alleged
by Th##n and A####a until Mertens got the rest of the write-up the following
T**1 said she had no recollection of the comments she supposedly
made to Mueller, but
admitted it was possible she had said something along those lines. She had no recollection of
making any comment to Th##n about bleeding, and strongly doubted that she said any such
She explained that she had given birth in May, and had since had suppression injections and
had neither a period nor any bleeding since that time. As for the comment about blowing a
hard or soft, she admitted saying it, but denied there was any sexual innuendo. Her
that it was John Holbach, not Roger A####a, who asked her to blow off the panel, and it
Holbach to whom she asked the question. She explained that it is possible to regulate the air
pressure on the hose, and that if too much pressure is used it might blow the grout out from
the bricks. She acknowledged that there was some laughter from other employees when she
this. John Holbachechoed this testimony.
Miles Mertenstestified that the Union was
supposed to receive copies of all disciplinary
notices, and that the Company would typically give him write-ups of anything that was going
to discipline, albeit often late. He said had never seen any type of warning notice to T**1
offensive language prior to the discharge. In preparation for the arbitration, Mertens said he
interviewed Th##n and A####a and asked them about the timing of the alleged incidents.
said it had occurred a week or two before he reported it, and also commented that T**1 kept
other members of the crew "in stitches" with her comments. A####a told him that the
the air hose took place three to five days before he reported it. Mertens testified that he had
reason to doubt the honesty of either A####a or Mueller, and that he did not know Th##n at
could not offer an opinion about him.
Roger A####a, James Mueller and Jack Th##n all testified to the events
as described above.
A####a said that he did not tell Mertens that he waited three to five days to report the
reference to three to five days was an attempt to place it in time relative to the discharge.
the incident took place on the day he reported it. Jack Th##n said he told Mertens that the
kept the other workers "in shocking stitches" and said that she had an odd sense of humor
more profanity and vulgarity than any of the men could have gotten away with. While he
seen any written policy on the use of profanity, he felt that it was a matter of mutual respect
employees not to use it, and that the Company discouraged it. He acknowledged that
used, including the term "fuck" and that his usual means of discouraging it was to repeat the
language back, word for word, to the person who used it, so they would hear how it
agreed that he told Mertens he thought a couple of days had passed before he reported the
comments, but on reflection he was wrong. He reported it within a few hours of it
James Mueller testified that he was aware of the complaint against H++++s when he made
report to Garni, and that it was one of the reasons he reported the Grievant's comments. He
that she might be trying to drag him into a similar problem. He agreed that there was plenty
profanity used in the plant, and that this was not the first time he had heard the word "bitch"
though it was the first time he had ever heard someone use it refer to herself.
Regan Schmitt testified that he had no recollection of what he said
when he was told the
Grievant was being terminated. He expressed the opinion that the majority of the employees
shop probably disapproved of people using profanity, but agreed that is was not uncommon
profanity, including profanity directed from one employee to another, and that it was, in fact,
Additional facts, as necessary, are set forth below.
ARGUMENTS OF THE PARTIES
The Position of the Employer
The Employer takes the position that there is ample justification for the discharge and
grievance should be denied. The Grievant here had several times complained about sexual
in the workplace, and the Company had agreed with her complaints and warned the
involved. She complained about Jeff R*****e's improper words and conduct, and he was
warning that he would be fired if there was another occurrence. She again complained about
using the term "bitch" to describe her, and he was again warned. He was discharged shortly
thereafter, and this was one of the bases. She complained about the Plant Manager, Kelly
making a reference to her menstrual cycle as the reason for a bad mood, and H++++s was
warning. Clearly, the Company takes sexual harassment and improper language very
just as clearly, the Grievant knew this, and knew that employees are given only one warning
Notwithstanding her knowledge that sexual harassment is taken seriously, and her
aggressive insistence on a workplace free of offensive language, the Grievant herself engaged
blatantly improper acts in a short span of time. On Wednesday, the day before the Grievant
complained against H++++s, Jack Th##n complained to Garni that he should not have to
put up with
the Grievant saying she was "fucking . . . bleeding" or words to that effect, and that he
language embarrassing. The next day, Roger A####a reported an incident in which she used
suggestive language in response to an order to blow dye off a brick panel, asking whether he
her to "blow it slow or fast." A####a was deeply embarrassed by the comment. Later that
foreman Jim Mueller complained that she had loudly told a co-worker to just ask him, and he
confirm that she was a "bitch." Mueller was understandably irritated by this, coming from
who was prone to complaining about others using such language towards her. Every one of
men testified credibly to the fact that they were offended and disturbed by the Grievant's
and none of them has any apparent motive to lie.
The Grievant's response to this is that crude language is common in the workplace
this is just shop talk. This is a hypocritical argument, given that it is she who insisted on
what amounts to a zero tolerance standard for offensive and harassing remarks. Having
urged discipline for others who engaged in similar comments, she cannot now claim that she
know the rules or that the Company is using too high a standard for measuring her own
misconduct. The contract allows for immediate discharge for serious offenses, and partly
her urging, the Company had classified sexual harassment as a serious offense. Simply put,
cannot have it both ways.
The Company carefully considered all complaints of inappropriate and offensive
employees to other employees, and treated these complaints as serious matters. It did so
Grievant complained about others, and it followed the same course when others complained
her. Its approach was even handed, reasonable and consistent with the rules. Since the
three offenses under a sexual harassment policy that allows only two, and since she could not
plausibly deny her guilt, the Company reasonably determined that she should be discharged.
Arbitrator should reach the same conclusion, and the grievance should be denied.
The Position of the Union
The Union takes the position that there was not just cause for discharge and asks that
Grievant be reinstated and made whole. This Grievant had no relevant prior discipline in her
yet in the course of two days she went from no discipline to termination. She had been in
for two and a half years without incident, yet after she complained about Kelly H++++s,
a sudden flood of complaints about her offensive language. A####a admitted that he was
to complain by the fact that she had complained against others, and Mueller admitted that his
complaint was prompted by her complaint against
H++++s. Clearly, this discipline is an effort to retaliate against her for her own
complaints. That is
made clear by the fact that Garni never mentioned Th##n's complaint when he met with
discuss H++++s' remarks. If he was interested in deterring offensive language, the
would have been to ask her how she could be complaining about H++++s when her own
were offending other employees. Garni did not do so, because he was laying in the weeds,
intending to turn her own complaints on her.
The Grievant was discharged under a "policy" that subjects sexual harassment to
discharge. This is an unwritten policy without standards and without support in the contract.
contract clearly requires progressive discipline for all but the most serious offenses. In
Company's "policy" amounts to allowing Garni to discharge an employee based on his own
judgment of what is and is not offensive. This cannot be reconciled with a just cause
standard. If an
employee is to conform to a rule, there must be some sort of objective standard that he or
refer to. In the area of offensive language, each individual may have different opinions, and
word may be offensive or not, depending upon the context in which it is uttered. A####a for
example, is clearly a very sensitive person. There is nothing wrong with that, but the fact
that he is
easily embarrassed doesn't mean that his embarrassment can be equated with someone else's
misconduct. The evidence establishes that there is a fair amount of crude language used in
and the Grievant could not be expected to know that a term such as "bitch" -- which is used
-- would trigger discipline when she used it.
If the Arbitrator steps back and reviews the allegations against the Grievant, none of
individually warrants more than an informal conference and taken together, they would not
any serious discipline. The Company is simply responding to its annoyance at the Grievant's
complaints. While this may be understandable, it does not meet a just cause standard, and
Arbitrator should, therefore, grant the grievance and reinstate the Grievant.
The Company discharged the Grievant for offensive behavior, and at the hearing
identified the behavior as
sexual harassment. The Company alleges that it has a policy against sexual harassment that
calls for one warning and
termination for a second offense, and that the Grievant is guilty of three offenses, one more
than the policy will allow.
The Union claims that there is effectively no policy, and that even if there is, the Grievant
did not violate it. In the
Union's view, the Grievant is guilty of, at most, vulgarity and the termination is nothing
more than retaliation against
her for complaining about comments made by the Plant Manager.
The initial question is whether there is an enforceable policy against sexual
harassment. If so, the question
is whether the Grievant violated that policy or any other disciplinary rules. If so, the final
question is whether the
Grievant's rule violations constitute just cause for discharge, as opposed to some lesser form
1. Is There A Sexual Harassment Policy?
In general terms, a valid work rule is one which (1) regulates conduct reasonably
related to a legitimate
business concern of the employer, (2) does not conflict either with any express term of the
agreement or with the duty to bargain, (3) gives employees reasonably clear notice of the
conduct prohibited and the
consequences of a violation, and (4) is enforced in a reasonable and consistent manner. 1/
1/ See, for example, Brand, et al,
Discipline and Discharge in Arbitration, (BNA, 1998) at pages 72-85; Volz
& Goggin, et al, Elkouri & Elkouri: How Arbitration Works,
(5th Ed., BNA 1997) at pages 764-769; St. Antoine,
et al, The Common Law of The Workplace (BNA, 1998) at pages 166;
186-197; See also, the discussion of parallel
factors for determining what constitutes insubordination in Bornstein, et al, Labor and
(2d Ed., Matthew Bender, 2000), Chapter 16, Section 16.04.
In connection to the legitimate content of the rule and its consistency with the
would observe that the Company has not only the right, but the obligation, to maintain a
free of sexual harassment, and in pursuing that duty it can exercise its inherent right to make
enforce reasonable work rules against harassment. Indeed, the contract itself contains a
both parties not to allow illegal discrimination on the basis of sex (Article 25), and this
encompass maintaining a rule against sexual harassment. Having said that, the general right
to prevent sexual harassment is not carte blanche to do whatever the
Company wants with the
subject, and it does not delete the just cause provision of the contract. In the instant case,
as administered has several defects.
The rule described by Garni is an unwritten policy. According to him,
the policy prohibits
sexual harassment and allows two strikes. On the first offense, the employee is given a
warning, and is told that a second offense will lead to immediate termination, although actual
termination is subject to his determination of the circumstances surrounding the second
Being unwritten, the policy is not posted anywhere, and according to Garni employees
aware of it while they are receiving the warning after their first offense. While, on its face,
would appear to be a defect in notice to employees, it bears remembering that sexual
in the workplace is something that has long been widely recognized as a problem, and
can reasonably be expected to know that it is prohibited. A ban on conduct that is plainly
harassment is not some technical or obscure regulation of behavior that an employee would
to have specific notice of before discipline could be imposed, any more than a ban on fist
the workplace has to be posted in order to be enforced. Thus, the fact that the prohibition
harassment has not been reduced to writing does not render it invalid. 2/
2/ Having observed that a rule against sexual
harassment is enforceable even if unwritten, the lack of a written
rule nonetheless draws into question the scope of the rule, and whether employees can
possibly have notice of
everything that is covered by the fairly broad term "sexual harassment." This is discussed in
greater detail below.
The ban on harassment is only one aspect of the alleged rule. The second is the
"two-strikes" provision, whereby
someone who is guilty of sexual harassment is warned that a second offense will lead to
discharge. In this respect, the
alleged rule is something of a hybrid between the two existing categories of rules listed in the
Appendix to the contract.
For offenses such as absenteeism, loafing, horseplay and the like, the Company uses a three
step progression of
discipline over a six months, with a written warning for the first offense, a suspension for
the second, and discharge
for the third. For serious offenses, including dishonesty, drunkenness, possession or use of
drugs, recklessness and
carrying unauthorized passengers, immediate discharge is the rule. There is a very
substantial question in this record
whether employees generally know or should know this aspect of the rule. Garni testified
that he tells people that they
will be discharged for a second violation, and that the Grievant knew this because she was
specifically told of it when
R*****e was given this warning in December of 1998.
From the record, it appears that there have been only four cases in which this
unwritten rule was arguably invoked:
the two involving R*****e and the Grievant, the case involving Kelly H++++s and the
instant case. In the first case
involving R*****e, I believe Garni's testimony that he warned R*****e that he was facing
discharge, and that the
Grievant was advised that this warning was given. It is confirmed by his notes of the
meeting with her, and it makes
sense that he would have done this, given the seriousness of the allegations against R*****e.
Even though I believe
Garni on this point, it does not prove that the Grievant had notice that any and all instances
of sexual harassment, no
matter what they consisted of, would lead to discharge in the second instance. That was not
a case of innuendo or
double entendre. R*****e was accused of improperly touching the Grievant as well as using
to her. The wrongfulness of sexual touching is absolutely clear-cut, and such conduct
violates not only the mores of
the workplace, but the criminal laws of the State. Advising the Grievant that R*****e was
on a final warning for this
conduct would not communicate to most people the broader point that anything that could be
characterized as sexual
harassment would be subject to a two strikes rule.
The second instance involving R*****e and the Grievant in early March of 1999 does
nothing to show that
employees could expect a two strikes rule to be enforced for sexual harassment. The
incident, on its face, had little to
do with sexual harassment. It was a conflict between two employees, with R*****e calling
her a "bitch" and her
calling him a "low-life" and telling him to "get the fuck off" of a piece of equipment. 3/
"Bitch" may be a
gender-specific insult, in the same sense that "son-of-a-bitch" would be, but there is
particularly sexual about the use of the terms as insults. 4/ Garni testified that this incident
the sexual harassment policy, but his own write-up characterized the warnings he gave as
the use of offensive language. Moreover, R*****e was not fired for this incident,
the final warning given him in December. This buttresses the conclusion that the March
was not treated at the time as having anything to do with sexual harassment.
3/ Even if the terminology may be susceptible
to a gender specific meaning, bad-mouthing between two
employees because of personal animosity, rather than hostility based on gender, is not sexual
harassment. See State
of Washington, 98 LA 440 (Griffin, 1992); Paragon Cable, 100 LA 905 (Dreizen,
4/ It is the case,
however, that the regular use of the term "bitch" to refer to a female co-worker may, in the
context of other inappropriate comments and conduct, be evidence of sexual harassment. See
Can Tex Industries,
90 LA 1230 (Shearer, 1988).
The two strikes aspect of the alleged policy is also not in evidence in
the Kelly H++++s
case. The Grievant complained that his reference to her mood being influenced by her
cycle was sexual harassment. Whether that is an accurate assessment or not, Garni says that
it as being a complaint of sexual harassment and reprimanded H++++s under the sexual
harassment policy. However, the written warning he gave H++++s said nothing about
fired if he made such comments again, and neither the Grievant nor Garni, both of whom
present at the meeting with H++++s, claimed that anything along those lines was said to
If, as claimed, the two strikes rule is a fundamental aspect of the Company's sexual
policy, one would expect it to have been mentioned.
I cannot find that the unwritten policy puts employees on notice that the second
sexual harassment of any type will trigger discharge, nor can I conclude that the Grievant
notice of this after the first R*****e incident. The second incident with R*****e did not,
normal interpretation of the facts, involve sexual harassment, nor did the discipline resulting
incident characterize it as sexual harassment. The incident with Kelly H++++s did
complaint of sexual harassment, yet there was no mention of a two strikes policy when
warned against making similar remarks again. Thus, aside from Garni's assertion, there is
that the unwritten policy actually requires discharge for a second offense, and there is no
believe that employees would have notice of the enhanced penalties contemplated by Garni.
The Company asserts that, notwithstanding the specific terms of the
policy, the penalty of
discharge is appropriate in cases of sexual harassment, even in the first instance, because the
disciplinary notice appended to the contract allows immediate discharge for any
offenses that are
"of equal severity" to those specifically listed (dishonesty, drunkenness, possession or use of
recklessness and carrying unauthorized passengers). There are cases where this is almost
a fair analogy. A lead worker who conditions favorable job assignments on sexual favors, or
employee who grabs another employee's genitals in a sexual way, may clearly be said to
engaged in very serious misconduct. /5 As with the specific bases for summary dismissal in
contract, these are acts which are plainly wrong, and which any reasonable person would
have the most serious consequences. However, sexual harassment also encompasses
which, while inappropriate, is less egregious than these examples, and less analogous to the
reasons for immediate discharge. There are patterns of comments and conduct that, repeated
time, may create a hostile environment, even though any individual comment or action would
in and of itself, be of such gravity as to warrant summary discharge. 6/ In this case, for
it is inconceivable that Kelly H++++s would have been summarily discharged for having
the Grievant's bad mood to her menstrual cycle, even though the parties characterized this as
within the scope of the sexual harassment rule.
5/ See, for example, City of Orlando, 109 LA
1174 (Sweeney, 1997); U.S. Dept. of Labor, 98 LA 1129
(Barnett, 1992); Shell Pipe Line, 97 LA 957 (Baroni, 1991); Rockwell International, 85 LA
6/ Meritor Savings Bank
v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 40 FEP 1822 (1986); Stanley G. Flagg
Co., 90 LA 1176 (Valentine, 1988).
While an unwritten rule against sexual harassment is enforceable and may, in
warrant immediate termination, by being unwritten the rule relies heavily on what common
would tell an employee as to conduct and its likely consequences. Particularly in the area of
appropriate penalty, this requires a close examination of the specific conduct and/or the
words used, and the context in which they were used, before a particular act of discipline can
judged consistent with a just cause standard.
2. Did The Grievant's Conduct Constitute Sexual
The Grievant is accused of three violations of the sexual harassment policy, in the
she made to Th##n, A####a and Mueller. These would be her first violations of the policy
discussed above, her clash with R*****e in March of 1999 cannot plausibly be characterized
having anything to do with gender bias. She is specifically accused of:
Telling Th##n she was bleeding like a fucking pig, in
connection with her period;
Asking A####a whether "he would like her to blow it hard or
soft" when he told her to
use an air hose to blow dye off a brick panel;
Loudly telling a co-worker, in Mueller's presence, that Mueller
would confirm that she
was a "bitch";
The Grievant testified that she had no specific recollection of the comment to Th##n,
but that she
doubted she would have said it, since she was on medication that suppressed her period. She
admitted the "hard or soft" comment, but said it was directed to Holbach, not A####a, and
that it was
merely an inquiry about the degree of air pressure he wanted her to use. As to the comment
Mueller, she conceded she may have said it, though she again had no specific recollection.
Th##n reported that the Grievant told him she was "bleeding like a fucking pig"
period. Assuming for the sake of argument that the comment was made, it may have
Th##n to hear a woman make reference to her menstrual cycle, and it would certainly have
crude thing to say. It is not clear, however, how it becomes sexual harassment. Not every
to distinctions between male and female anatomy raise questions of sexual harassment, and
comment reported by Th##n has no sexual overtones. There is no implicit invitation nor any
reference to sex at all. It is not part of a pattern of uninvited discussion of intimate matters
Grievant. Unlike the comment made by H++++s about the Grievant's menstrual cycle, it
seek to explain a work related problem in terms of a gender stereotype. I can discern
whatsoever about the comment that would bring it into the scope of a rule -- formal or
prohibiting sexual harassment. It may have been unwelcome and, as noted, was certainly
However, Th##n himself testified that profane and offensive language was discouraged at the
by peer pressure, including by repeating the language back to the speaker, rather than
The Grievant's comment to Th##n was crude and inappropriate, but it was not sexual
harassment. It was at most a violation of the rule against profanity and offensive language.
that rule has not been regularly enforced solely to regulate language. The record shows only
prior instance of discipline for offensive language, and that was in response to a continuing
escalating conflict between R*****e and the Grievant in 1999. There the offensive language
plainly directed at the other employee, and threatened to exacerbate the conflict and interfere
the operations of the Company. Even given that heightened interest by the Company, it is
that the Grievant was formally disciplined. She said she was not aware of any discipline
for the R*****e incident, and Mertens testified credibly that he had not received a copy of
warning to the Grievant, which would have been required if she was being formally
opposed to merely being counseled. Absent clear advance notice to all employees that the
against profanity and offensive language would be strictly and uniformly enforced, I cannot
this warrants formal discipline.
Turning to Roger A####a's report that the Grievant asked him whether
he wanted her to
"blow it hard or soft" I credit A####a's testimony over that of the Grievant and Holbach.
was a sincere witness, and all parties agreed that his personal history was inconsistent with
untruthfulness. Moreover, the explanation offered by the Grievant and Holbach makes no
According to them, it is important to know how much air pressure should be used because
the brick panel "hard" i.e. using considerable air pressure, would dislodge the grout from
the bricks. Since she claimed to be familiar with the procedure and the equipment, she
knew enough to use less pressure so as not to damage the product. There was no reason for
ask the question, other than as sexual innuendo. A####a's reticence would have made him a
candidate for such teasing, and I conclude that she intentionally asked the question to
him. Had the roles been reversed, and a male lead worker had made this kind of comment
she would have had a legitimate complaint. Men are just as much entitled to be free of
of a sexual nature as are women, and I find that T**1 violated the policy against sexual
by deliberately embarrassing A####a in front of his co-workers. 7/
7/ Title VII protects men as well as women.
See Oncale v. Sundowner Offshore Services, 532 U.S. 75,
118 S. Ct. 998 (1998). Certainly this single incident would not have sufficed to create a
hostile environment for
A####a. Before sexual harassment on the basis of a hostile environment would become
actionable by A####a, there
would have to be proof that the Grievant's behavior was sufficiently severe and pervasive to
alter the working
environment. However, the Employer's interest is in preventing the creation of a hostile
environment and it cannot
be forced to wait for a hostile environment to be created before taking action. See Safeway,
112 LA 1050 (Silver,
With respect to the comment made to Mueller, no serious argument can be made that
any way implicates a policy against sexual harassment. As previously noted, the term
be a gender specific vulgarity, but the mere utterance of the term does not constitute sexual
harassment. Here, the comment was made by the Grievant, in reference to herself. Mueller
that he reported it to Garni in part because the Grievant had reported others, notably
making inappropriate gender-specific comments, and because by inviting him to respond to
characterization, he felt she was trying to put him in a position where she could make a
complaint against him. While it may have struck Mueller and others that there was a certain
justice in giving the Grievant a taste of her own medicine, the fact is that her own comment
being a bitch simply has no sexual overtone, nor can it be said to contribute to an
is hostile to female employees. Certainly, this incident involves the use of a vulgarity, and
the rule against the use of profanity, indecency or abuse of other employees. However, as
above, the parties concede that profanity, while not sanctioned, is not unknown in this work
and is primarily regulated by peer pressure. Whether it is subject to formal discipline
the context in which it is used, and aside from the March 1999 incident, there is no evidence
formal or informal discipline for offensive language. Without endorsing the Grievant's
I conclude that they are properly characterized as shop talk, and that no employee would
expect to be subject to formal discipline simply for uttering the word "bitch."
Of the charges leveled against the Grievant, two involve the use of offensive or
language, but do not have any overtones of sexual harassment. The rule against offensive
is principally enforced through informal pressure from other employees, and neither the
any other employee would reasonably expect formal discipline, much less termination, as a
such comments. The third allegation of sexual harassment is proved on the record. The
deliberately embarrassed Roger A####a by asking a question that was intended to suggest
While plainly inappropriate, this is not the type of sexual harassment that would typically
termination for a first offense. It does not involve physical touching, quid pro
quo demands or any
other egregious misconduct. Even under the Company's unwritten policy, it would demand a
warning as a first offense. This is also the appropriate first level of discipline under the
of discipline for abusive conduct to other employees. Thus, under any theory of the case,
appropriate penalty is a written warning. Accordingly, I conclude that the Grievant was
for just cause, but was not discharged for just cause, and that the appropriate remedy is to
discharge to a written warning, reinstate her to her former position, and make her whole for
On the basis of the foregoing, and the record as a whole, I have made the following
1. The Employer had just cause to discipline the Grievant for
sexual harassment directed at
2. The Employer did not have just cause to discipline the Grievant
for sexual harassment
directed at either Jack Th##n or James Mueller;
3. The Employer did not have just cause to discharge the Grievant;
4. The appropriate remedy is to immediately:
(a) reduce the discharge to a written warning;
(b) reinstate the Grievant to her former position;
(c) make her whole for her losses.
Dated at Racine, Wisconsin, this 25th day of January, 2001.
Daniel Nielsen, Arbitrator