Court Upholds Arbitrator’s “Progressive Discipline” Determination in Light of Workplace Harassment

In 554 Euo LLC v. Bldg. Maintenance Employees Union, Local 486, No. 654999/2018, 2019 WL 645975 (N.Y. Sup Ct, New York County Feb. 11, 2019), the court upheld an arbitrator’s decision to impose a less serious sanction (loss on one months’ pay), instead of termination, upon an employee found to have engaged in workplace harassment.

The court summarized the arbitrator’s decision as follows:

The arbitrator found that the Employer was right to conclude that Conte harassed Artiles because of his perceived sexual orientation, that the verbal abuse was so intimidating that Artiles was forced to leave the Aurora and work at a different building, and that the Employer had presented clear and convincing evidence establishing there was just cause to discipline Conte. However, the arbitrator found that, absent one of the seven categories spelled out in the CBA (insubordination, dishonesty, theft, drunkenness, assault, chronic absenteeism or chronic lateness), summary discharge was improper, and Conte was entitled to “progressive discipline” under the terms of the CBA. In so doing, the arbitrator emphasized that there was nothing in the record to indicate that Conte had been disciplined for any kind of harassment or discrimination in the past. The arbitrator further rejected the Employer’s argument that Conte’s behavior amounted to “assault,” finding that there is nothing in the record to suggest Conte physically threatened Artiles, or that Artiles felt physically threatened.

Consequently, the arbitrator overturned the Employer’s summary discharge and ordered that Conte be suspended for one month without pay, stataing that “[w]hile Mr. Conte hereby gets a last chance, he must never engage in the harassment or bullying of other people in the workplace again, for any reason.”

The employer moved to overturn this award, “arguing that the arbitrator exceeded his powers by recommending a ‘progressive discipline’ outside the terms of the CBA, and that the arbitrator’s recommendation violates strong public policy.”

The court, while “find[ing]the actions and conduct of Conte to be loathsome and repugnant,” held that “the Employer has not met its high burden to vacate and overturn an arbitration award.”

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