Sunday, February 24, 2013

A noose, cluelessness and public policy

The Supreme Court of Washington has refused to overturn an arbitrator's award reducing the discipline of an employee who had hung a noose in the workplace from termination to a twenty day suspension.

The arbitrator found that the Grievant had hung the noose as a prank directed at an older white coworker. An African American employee saw the noose and reported it. The arbitrator recognized the demeaning and hostile nature of a display of a noose in the workplace, and the employer's legitimate interest in expecting employees to be aware of that effect and to refrain from such a display. Nevertheless, he found  Grievant's "impression" of a noose was not racial, but rather derived from "Cowboys and Indians." In this regard the arbitrator found grievant "more clueless than racist." In light of this conclusion, and grievant's 12 years of service with no history of performance problems, the arbitrator concluded that termination was too severe a penalty and reduced the discipline to a twenty day suspension.

The employer sought to vacate the award, contending that the award violated  public policy,  and the superior court granted the motion to vacate. The lower court determined that the award violated the public policy against harassment in the workplace. It then went on to order its own remedy, which included a six month suspension, a letter of apology, attendance at diversity and harassment training and immediate termination for any violation of the employer's anti harassment policy in the next four years.

On appeal, (discussed here), the Appellate Court agreed that the discipline imposed was too lenient, and improperly minimized society's interest in preventing this type of conduct and interfered with the employer's ability "to discharge its duty" to prevent future acts of discrimination. The court determined, however, that the lower court erred in imposing its own remedy and should have remanded the case back to the arbitrator.

The Union appealed this decision and the Washington Supreme Court reversed. The Supreme Court first noted that "We only review the arbitrator's award and not the underlying conduct." While noting the "terrible and tragic history" history of the noose, and condemning "in the strongest terms possible" the threats and racial violence symbolized by it, the Court concluded that it was bound by the arbitrator's findings of fact. The Court noted:

 As a result, we must accept the arbitrator's findings regarding [Grievant's] understanding of the
symbolism of the noose, as well as the findings on the effect of the noose on the other
employees in the workplace. When we take into account the specific circumstances of
this case, we cannot say that a 20-day unpaid suspension would not provide sufficient
discipline to cause this or other employees to understand the serious nature of a noose
in the workplace and thus prevent a similar incident in the future.
       We reiterate that we find [Grievant's] actions to be ignorant and unacceptable and
that our analysis in this case is limited to determining whether the arbitrator's award is
so lenient that it violates the public policy against racial harassment. We do not
determine whether a 20-day suspension is the appropriate punishment for [Grievant's] actions or whether he violated antidiscrimination laws either of which would be analyzed under a very different legal framework.
 
Accordingly, the Court reversed the decision of the lower court and held that the arbitrator's award was not contrary to public policy. It further "took the opportunity" to clarify (as had the Appellate Court), that a trial court vacating an arbitrator's award cannot impose its own remedy but should remand the matter to the arbitrator for further proceedings.

The Court's decision in International Union of Operating Engineers, Local 286 v. Port of Seattle can be found here.

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