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.

Arbitrators exceeding their powers - three courts reverse

Arbitrator ignored limitations in cba

The cba between CenterPoint Energy and the Gas Workers sets forth several offenses which provide "absolute causes" for discharge and limit an arbitrator to the question of whether the employee, in fact, committed the offense. 

An employee was dismissed for allegedly "falsifying time sheets and neglect of duty," both of which are among the "absolute cause" offenses. The dispute about the dismissal was submitted to arbitrator Richard Miller for resolution. In his award, Arbitrator Miller found that the Company had established that grievant had engaged in the conduct alleged on some, but not all, of the dates in question. Nevertheless, he concluded that the Company did not have just cause for the dismissal. Rejecting the Company's reliance on the "absolute cause" language, the Arbitrator concluded that he was still free to modify the discipline.  He held:

To interpret Article 26 in any other manner would violate all of the basic notions fairness and due process firmly established in the history of industrial relations and implicit in Article 26, which also includes a just cause standard for discipline and discharge.

Arbitrator  Miller converted the discipline to a suspension without back pay and ordered the grievant's reinstatement.

CenterPoint sought to vacate the award, claiming that the arbitrator exceeded his authority by ignoring the explicit language of the contract. The District Court agreed. It found:

The Arbitrator here acted outside the scope of his authority by disregarding the plain language of the CBA.
...

This provision clearly and unambiguously limits the arbitrator's authority to determining whether an employee is guilty of the facts constituting any of the four absolute causes. Once the arbitrator makes that determination, the arbitrator's authority ceases and he can no longer fashion a remedy he believes is appropriate given the circumstances. 

Accordingly the Court vacated the award.

Arbitrator altered the charges against  a teacher and then found charge unsupported

  The NJ Supreme Court in Bound Brook Bd of Education v. Ciripompa overturned an award of Arbitrator Michael J. Pecklers in a teacher tenure proceeding. 

 Two counts of tenure charges had been brought against the teacher for unbecoming conduct. The first related to claims that the teacher had used his employer issued laptop to send nude pictures of himself and to solicit similar pictures from women on the internet. Count II alleged that he had engaged in inappropriate conduct towards female staff members and made comments about their dress and physical appearence. The tenure charges were submitted to Arbitrator Pecklers for resolution. Arbitrator Pecklers found that the Board proved the allegations of Count I. With regard to Count II,  he noted that while the Count did not specifically allege sexual harassment, in light of the evidence this was the substance of the allegation. He then considered the evidence in light of the NJ Supreme Court's decision in Lehmann v. Toys 'R' Us, Inc, a case interpreting the NJ Law Against Discrimination, and found that the evidence did not support a finding of a hostile work environment.  In view of his findings regarding Count I and his dismissal of Count II the arbitrator converted the dismissal to a 120 days suspension. 

On the School District's appeal, the case was ultimately appealed to the N.J. Supreme Court.  Describing the issue before it, the Court wrote:

 In this case we determine whether an arbitrator exceeded his authority by applying the standard for proving a hostile-work-environment, sexual-harassment claim in a law against discrimination (LAD) case to a claim of unbecoming conduct in a tenured teacher disciplinary hearing. We find that he did.

The Court determined that the Arbitrator erred in essentially modifying the allegations in Count II from unbecoming conduct to sexual harassment, noting 

Here, the arbitrator erroneously faulted the Board for failing to prove a charge that it did not bring. The arbitrator erred in his reliance on Lehmann because he imposed a different and inappropriate standard of proof on the Board to sustain its unbecoming conduct in the presence of students claim. The arbitrator "imperfectly executed" his power by misinterpreting the intentions of the Board so significantly as to impose a sexual harassment analysis, when such an analysis was wholly ill-suited in this context

The Court ordered the dispute remanded to a different arbitrator to decide the question of whether the teacher committed unbecoming conduct and the appropriate penalty if he did so. 

Arbitrator improperly ordered University to award tenure

The District Court of Appeal in Florida found that an arbitrator erred in ordering Florida Atlantic University to award tenure to a professor. The arbitrator found that the University relied on improper criteria in its decision to deny tenure and ordered the school to follow the established criteria and  grant the professor's application for promotion and tenure. A lower court  found that the arbitrator exceeded his authority in awarding tenure, but ordered the school to provide grievant with an additional year of employment during which she could reapply for tenure. The Court of Appeal in Nash v. Florida Atlantic University found both the arbitrator and the lower court erred.  It held:

...the arbitrator exceeded his authority in directing the University to grant Nash a promotion and tenure. Although the parties stipulated that the arbitrator would determine "the appropriate remedy" for a breach of the CBA, the parties did not expressly place before the arbitrator the issue of whether Nash should have been granted promotion and tenure. Rather, the issue was whether the University had violated the CBA's procedure for determining an application for tenure and promotion. It is clear to us that once the arbitrator found the University violated the procedure by not relying on established criteria, "the appropriate remedy" was for the arbitrator to direct the University to review Nash's application using the correct criteria.

The court also rejected the lower court's order of an additional year of employment, concluding that the lower court should have directed the University to review grievant's application using the correct criteria. 

Arbitrator's award that cba precludes discipline of employee on union leave found contrary to public policy

Grievant was employed as a bus driver with the Manhattan and Bronx Surface Transit Operating Authority. He worked as a bus operator for four hours per day, and he was also a union official and worked eight hours per day (on Transit Authority paid release time) on labor-management duties. In December of 2012 a bus dispatcher filed a complaint alleging that grievant had repeatedly sexually harassed her. In January 2013, at the request of the Union (Transport Workers Union of America, Local 100),  grievant was placed on union paid release time.

In April 2013 the Authority's EEO office issued a report finding reasonable cause to believe that grievant had engaged in conduct in violation of the Authority's sexual harassment policy. The TA presented disciplinary charges against grievant, but the Union disputed the Authority's power to maintain disciplinary action against an employee on union-paid release time. The Union claimed that placement on union paid release time created a "safe haven" protecting an employee from discipline.  The issue was submitted to an arbitrator  who upheld the Union's position. The Arbitrator concluded that the cba contained specific directives governing prohibited activities for employees on release time.

The Union filed an action seeking to confirm the award and the NY Supreme Court (the trial court) confirmed the award. The Authority appealed, and the Appellate Division has now reversed.

Initially the Court acknowledged  that:

in considering the issue before us, we must assume that the CBA itself calls for the remedy set forth in the Arbitrator's award; the question to be asked is whether the arbitrator's interpretation of the CBA — requiring reinstatement of the sexual harassment offender because the union-paid release time acts as a shield — runs counter to the identified public policy against sexual harassment in the workplace.

Answering the question in the affirmative, the Court held that assuming the arbitrator's award was contractually correct, the decision itself was contrary to public policy. While noting the limited scope of review of arbitrators awards, and the substantial deference they are owed, the Court determined:

...this is one of the relatively rare cases where a CBA award — reinstating a sexual harassment offender — runs counter to the strong public policy against sexual harassment in the workplace. If left to stand, the arbitration award will send the wrong message — that certain employees at the Transit Authority, mainly those who also performed union—related activities, may be free to create a sexually-charged atmosphere in the Transit Authority's workplaces because any complaints against them will be impeded by CBA protections. Knowing that complaints against employees like [grievant] will be impeded by CBA protections, victims of sexual harassment may hesitate to come forward to report opprobrious behavior, thereby undermining the Transit Authority's ability to promptly remedy such behavior. It is also imperative that employers have the unfettered ability to discipline employees such as [grievant] in order to both punish the offender and to deter other employees from engaging in such behavior.

The Court noted that it was not substituting its judgment for that of the arbitrator on the contractual question, nor was it imposing a remedy it felt was appropriate. Rather, "we simply vacate the award as violative of public policy."

The Court's decision Matter of Phillips v. Manhattan & Bronx Surface TR. Operating Auth. can be found here.

Public policy, professors and firefighters

Two recent cases reach differing results in addressing requests to set aside arbitration awards as contrary to public policy.

In Slippery Rock University of Pennsylvania, PSSHE v. Association of PA State College and University Faculty the Commonwealth Court of Pennsylvania reversed an arbitrator's award reinstating a tenured professor who had been dismissed after allegedly engaging in inappropriate and offensive conduct toward University students while on a spring break trip to Spain.

The arbitrator sustained a grievance over the dismissal, concluding that the professor had not been provided with a "complaint" within the meaning of the cba. The Court rejected the arbitrator's analysis, finding it had no support in the cba. Separately, however, it found that reinstatement of the professor would violate the State's public policy. The Court noted:

Given that the transgressions at issue in the subject grievance are of a sexual nature perpetrated against a student(s) at one of the Commonwealth’s universities within the PASSHE by an individual who was not only a full professor but also a department chair, we must reject the arbitration award on compelling public policy grounds. The clearly established public policy and duty to protect students from sexual discrimination in any form has long been recognized.[fn]
[fn] In rejecting this arbitration award on the additional basis of public policy, we note that the award was rendered in the wake of the events that have engulfed another Commonwealth university within PASSHE for alleged failure to properly heed and respond to prior warnings of egregious sexual misconduct. While the incident in the matter at hand is not of the same nature, it is nonetheless another instance of misconduct of a sexual manner involving someone in a position of trust and responsibility over students at a Commonwealth university.

Independent of its finding that the award did not draw its essence from the cba, the Court found that the award reinstating the Professor with full back pay despite what it believed to be undisputed evidence of misconduct "prevents the University from properly implementing its policy prohibiting such behavior."

In another case, involving the dismissal of a firefighter-paramedic, the Ohio Court of Appeals rejected the public policy arguments of the employer. In its decision in City of North Royalton v. Robert Ulrich, et al.  the Court affirmed the arbitrator's decision reinstating the grievant. Grievant had responded to an overdose scene and treated and transported the patient. While initially telling the dispatcher that all drugs and drug paraphernalia had been flushed down the toilet, he subsequently reported to the police that he discovered a packet containing drugs in the ambulance and believed that it had fallen out of the patient's pants. An investigation revealed that in fact grievant had removed the drugs from the scene and placed them in the ambulance. Grievant was dismissed, but an arbitrator ordered his reinstatement without back pay.

 The City sought to set aside the award, arguing that reinstatement of a firefighter who falsified a police report was contrary to public policy.

Rejecting this claim, the Court acknowledged that it had previously held that reinstatement of a police officer who falsified a report was contrary to public policy, but held that the same standard did not apply to firefighters. Explaining the distinction, the Court observed:

In recognizing that a clear public policy existed in prohibiting the reinstatement of police officers who falsified reports, the Fourth District specifically emphasized that the statute recognizes that “the police force of a municipal corporation is obligated to ‘preserve the peace, protect persons and property, and obey and enforce * * * all criminal laws of the states and the United States.” … The court further recognized that “honesty is vital to the effective performance of these duties and to ensuring public trust and confidence in the police force.” … These same considerations, however, do not apply to a firefighter–paramedic nor are they delineated under the statute with respect to firefighters.

      Thus, while we certainly do not condone dishonesty and recognize that it is disfavored in the workplace, we cannot say that a dominant, well-defined public policy exists that all acts of dishonesty warrant immediate termination of a firefighter– paramedic’s employment. We likewise cannot say that a clear public policy precludes the reinstatement of a firefighter– paramedic who has provided inaccurate written reports or a false witness statement to the police. Accordingly, we find no merit to the City’s claim that the trial court erred in failing to vacate the arbitrator’s award as being against public policy.