The Court of Appeals for the State of
Washington has affirmed the refusal to enforce an arbitration award reinstating a employee fired for hanging a noose at work. International Union of Operating Engineers, Local 286 v. Port of Seattle. Port of Seattle
The grievant had hung the noose on a rail in a high traffic work area. After another employee complained, the Port conducted an investigation and concluded that the grievant had violated its zero tolerance anti-harassment policy and terminated his employment. The arbitrator, applying the “Seven Tests” of just cause, found that the Port had not established that the discipline was reasonably related to the seriousness of the employee’s misconduct and had failed to give appropriate weight to the employees work record. Finding grievant’s conduct “more clueless than racist”, the arbitrator converted the termination to a twenty day suspension.
Affirming the lower court’s decision refusing to enforce the award, the Court noted:
none of the seven questions or the arbitrator's analysis of the appropriate
discipline take into account the dominant public policies of the [
Law Against Discrimination], including a
employer's affirmative Washington
duty to impose sufficient discipline to "send a strong statement" adequate to
persuade both [grievant] and potential violators to refrain from
unlawful conduct. By imposing such a lenient sanction, the
arbitrator minimized society's overriding interest in
preventing this conduct from occurring and interfered with the
Port's ability to discharge its duty under the WLAD to prevent
future acts of discrimination.
While agreeing with the lower court’s refusal to enforce the award, the Court also found that the lower court erred in fashioning its own discipline for the grievant. The Court remanded the case “for further arbitration”.
Update: The Washington Supreme Court has reversed this decision and upheld the arbitrator's award. The Court's decision is discussed here.