Harassment allegations can go in many different directions.  Employees may complain to their supervisors, who address the situation immediately and bring it to a stop.  They may report the conduct to Human Resources, resulting in an investigation.  They can also report the conduct to the EEOC or Minnesota Department of Human Rights if they feel their voice isn’t being heard.  In International Brotherhood of Teamsters, Local 320 and Public Works Highway Department, Chisago County, the employee grieved the behavior all the way to arbitration.

The parties agreed to language that is fairly common in collective bargaining agreements.  The contract stated, “The Employer and the Union believe that all employees have a right to work in an atmosphere free of harassment…Any employee who believes that he/she has been subject to improper harassment is urged to consult the most recent adopted policy.”  The “policy” was the employer’s “Policy Against Offensive Conduct, Harassment and Violence.”  It contained the usual prohibitions as well as a reporting and investigation procedures.

The grievant, an equipment operator, was also a union steward, and alleged that the harassing conduct towards him began in 2017 after he filed a complaint reporting the inappropriate removal of materials from a worksite and improper use of equipment.  He then went on to make several allegations of harassing assignments from supervisors to perform unpleasant work.   In addition, the grievant also had vacation requests denied (which was grieved), and was asked about his productivity by his supervisor.  Also put into evidence was the fact that the union took four separate grievances over the past two years to arbitration.  However, only two of those contract grievances were sustained by an arbitrator.  Finally, the union presented testimony from the grievant’s co-workers, who stated that the grievant’s supervisor had a vendetta against him.

In his analysis of the evidence, Arbitrator David Paull stated that “employer action allegedly motivated by union related activity or union animus requires close scrutiny by collective bargaining arbitrators.”  At the same time, the arbitrator stated that clear proof was necessary to sustain a charge of harassment by a supervisor.

Looking at the record as a whole, the arbitrator found that the conduct towards the grievant constituted harassment based on union activities.  In support of this decision, he stated that the employer was aware of the grievant’s union activities, that the grievant was singled out for unpleasant mowing duties for extended periods of time, that he was denied vacation requests, that he was threatened with discipline for not meeting productivity standards, and that he was isolated from the rest of the highway crew by a supervisor.

The arbitrator found that the investigation performed in response to the grievance by the County did not foreclose the union from pursuing its grievance.  The parties had not laid out the procedure for resolving alleged violations of the applicable contract sections, and nothing in the contract stated that an employer investigation would bring the matter to a close.

With that, the grievance was sustained.  The department was ordered to cease and desist from any “improper treatment of the grievant,” and to post the arbitrator’s opinion in various workplaces maintained by the employer.

While the remedy provided was relatively minor, this award is somewhat concerning for employers who attempt to work with employees and unions regarding their harassment complaints.  In this case, the employer had a policy in place for the processing of harassment complaints and performed an investigation into the harassment, but was still required to go through the arbitration process.  In addition, it appears the union was being rewarded for its “litigious” nature, by filing several grievances, only half of which were meritorious, and then alleging it to be part of the employer’s harassment.  Time will tell if this approach will lead to an increase in these sorts of grievances for employers in the state.

As always, arbitration is never a sure thing.  If you, or your organization, need assistance in navigating the grievance or arbitration process, contact Wiley Reber Law, for labor relations advice that works.