Friday, October 21, 2011

Another public policy reversal

The Court of Appeals for the State of Washington has affirmed the refusal to enforce an arbitration award reinstating a Port of Seattle employee fired for hanging a noose at work. International Union of Operating Engineers, Local 286 v. 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 [Washington
            Law Against Discrimination], including a Washington employer's affirmative
            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.

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