Does employer provided alcohol mitigate an employee's intoxicated sexual harassment?

That was the issue presented to Arbitrator Robert E. Light in Aramark Uniform & Career Apparel and Teamsters Local Union No. 769.

Grievant was employed by Aramark as a Route Sales Representative. In acknowledgement  of his sales performance, he was invited to a Company recognition event consisting of a dinner and a limo to and from a Miami Heat basketball game. Alcohol was provided by the Company both at the dinner and in the limo.

While in the limo on the return from the game, grievant groped, touched and made sexual comments to another employee participating in the event. That employee, and another individual who was in the limo, testified and described the conduct of grievant. Grievant also testified, but said he could not remember much of what happened since he was already drunk when he went to the game.

The employee who was groped filed a complaint with the Company and, after an investigation, the Company terminated grievant's employment.  That action was grieved and submitted to Arbitrator Light for resolution.

While not condoning grievant's actions, the Union maintained that there were mitigating circumstances that called for discipline short of termination. It pointed to his approximately six years of employment with the Company, his clean work record, and his sales performance, including two years in which he was recognized as top sales person for the plant. It also noted  that the alcohol grievant was drinking had been supplied by the Company.

Arbitrator Light found at least some basis for the Union's argument, noting:

As was persuasively argued by Union counsel, the Company should have considered mitigation under these facts that would have led it to impose a lesser form of discipline. That is to say, as the facts reveal, the drinking that occurred in the limousine was due to the liquor being supplied by the Company. Does that fact in and of itself absolve the grievant from the conduct which he exhibited on the night in questions? The answer to that is no, however, it is a mitigating circumstance and must be taken into account by this arbitrator with respect to the penalty imposed upon the grievant. While it certainly does not absolve the grievant of the actions which he took, this arbitrator must take into account the aforementioned fact as well as the grievant's prior good record and the manner in which he testified at the arbitration hearing.

Arbitrator Light sustained the grievance in part, finding no just cause for termination but ordering grievant's reinstatement without back pay.

Aramark has sought to vacate the award (here), asserting that it is both contrary to the cba (which provides that "The Company shall not discharge or suspend any employee without just cause, excepting that no warning need be given employee before discharge if the cause for such discharge is ... sexual harassment") and to the "State's explicit, well-defined, and dominant public policy against sexual harassment in the workplace, and the affirmative duty of employers to implement that policy."

Another recently filed case also seeks to set aside an award reinstating an employee who had been dismissed for sexual harassment. In Welch Foods, Inc., A Cooperative d/b/a WELCH's v. General Teamsters, Local Union. 397, the Company seeks to vacate the award of Arbitrator Michelle Miller Kotula, asserting that it is contrary to public policy. Grievant had been dismissed as a result of his alleged conduct during a discussion with another employee. The discussion became heated, and grievant was alleged to have used "abusive, sexually explicit and derogatory language." The other employee involved was also initially dismissed but the Company later changed that to a two week suspension. Arbitrator Miller-Kotula found that grievant had " said inappropriate comments and used foul language during the incident" but concluded that the other participant had initially caused the argument and had also used inappropriate language. The Arbitrator reduced the termination to the same two week suspension that had been imposed on the other employee. The Company's complaint  alleges "The Award conflicts with and completely undermines the obligation of Welch's to prevent sexual harassment in the workplace and to apply sanctions against sexual harassment which creates a hostile or offensive work environment."

Update: The Aramark complaint has been dismissed with prejudice pursuant to the parties' settlement.