Arbitrator Orders Reinstatement After Employer Could Not Establish Employee's Comments Created Hostile Work Environment

An employee that engages in sexual banter at work can face discipline. Attorney Alfred Gordon O'Connell persuaded a neutral arbitrator that termination is excessive where the Grievant's banter was not unwelcome, other employees engaged in similar banter, and the complaint against the Grievant was motivated by personal animosity rather than the offensiveness of comments. UFCW Local 1445 filed a grievance in support of the employee, alleging that the termination violated the collective bargaining agreement's "just cause" language.

In the attached case, the Grievant and his co-workers used profane language including vulgar sexual comments, while working concessions. The Grievant used self-deprecating language to refer to his sexual prowess. Other co-workers, including at least one female co-worker, participated in these types of conversations without fanfare. No customers or co-workers complained about his comments. That is until the Grievant had a dispute with a female co-worker about a large holiday tip from a customer. She claimed he used highly offensive and inappropriate language during a work event. The Employer fired the Grievant, asserting that he created an intimidating, hostile and offensive working environment.

The Arbitrator had little trouble concluding that the Grievant violated the Employer policy. After all, the Grievant remorsefully acknowledged that he did. But the Arbitrator did not agree with the Employer's claim that the Grievant's actions were hostile, offensive or intimidating, where the allegedly offended co-workers engaged in similar comments with the Grievant and complained about his behavior until the dispute about the customer tip. The Arbitrator ordered the Employer to reinstate the Grievant with the seniority he had at the time of his discipline.