The Grievant, an Emergency Communications Specialist, had seventeen (17) years of service with the City. A Dispatcher received a text message from a coworker stating, “Boobies…Bouncing… Yayyyyyy Rude.” The Dispatcher responded by text message, requesting that the coworker refrain from making any further sexual comments. The Dispatcher then showed the message to the Grievant and asked whether she had handled the situation appropriately, the Grievant agreed that she had. The Grievant offered to assist her in filing a complaint and/or find another supervisor if the Dispatcher felt uncomfortable with the Grievant. The Dispatcher declined to file a complaint and requested no further assistance. Later, the Dispatcher showed the text message to additional supervisors, who reported the matter to Human Resources. The Employer imposed a three (3) day suspension upon the Grievant for alleged violations of the Anti-Harassment and Sexual Harassment Policy for failing to report the text to Human Resources and for Work Rules prohibiting employees from “performing job assignments carelessly or negligently” and “failing to administer the policies, directives or other requirements of the City …”

The Employer argued that it had just cause to impose the three (3) day suspension. Although the Dispatcher did not wish to file a complaint, the Employer maintained that the Grievant was required to report the matter to Human Resources once it was brought to his attention. A harassing text message had been sent and the Grievant failed to report the matter in accordance with the policy. The Employer further asserted that the Grievant had completed training on the policy and therefore should have recognized that the message was sexual in nature and potentially offensive. As a supervisor, Grievant was obligated to comply with the policy and report the text message. The Employer noted that the Grievant had an active written reprimand in his file. In light of progressive discipline and the seriousness of the offense, the Employer contended that a three (3) day suspension was appropriate.

The Union argued that the Grievant did not neglect his duties by failing to report the text message. The Dispatcher did not find the text message offensive, and the Grievant offered assistance in filing a complaint which the Dispatcher declined. The Union maintained that the Grievant was not required to decide for the Dispatcher what conduct she should find offensive. Because the Dispatcher did not regard the message as offensive, the Union asserted that the incident did not constitute sexual harassment. The Union further argued that the investigative report improperly presented the EEO Compliance Officer’s opinions, beliefs, and interpretations as fact. Finally, the Union contended that the Grievant’s conduct was not so egregious as to justify bypassing the ordinary steps of progressive discipline.

The Arbitrator held that, although the Grievant was not responsible for determining whether the conduct in question legally constituted sexual harassment, the Employer’s Anti-Harassment and Sexual Harassment training clearly required a supervisor to treat any indication of sexual harassment as a complaint so a proper investigation can be done. The fact that the Dispatcher did not wish to report the incident did not relieve the Grievant of the obligation to comply with the Policy and report the text message. The Arbitrator did not find that the Grievant was willfully careless or negligent. Rather, the Grievant failed to appreciate that the text messages rose to the level of sexual harassment that required reporting under the policy.

While the Arbitrator found that the Employer had just cause to impose discipline for failure to report the text message, the Arbitrator did not agree that the level of discipline imposed reflected a reasonable application of progressive discipline. However, the Arbitrator determined that he did not have the authority to reduce the discipline under a provision of the Collective Bargaining Agreement that stated:

In discipline cases the arbitrator’s role shall be limited to determining whether the member committed the act or omission for which the member was disciplined; if the arbitrator finds that the member committed the act or omission, the disciplinary penalty imposed by the Labor Relations Manager or designee shall not be changed.

Grievance denied.

Employer: City of Columbus                                                                Date: November 2024