Arbitrator reinstates Barnard College security guard who refused to question witness in low-cut blouse
Wednesday, June 24, 2020

Arbitrator reinstates Barnard College security guard who refused to question witness in low-cut blouse

By WK Editorial Staff

The guard clearly violated the college’s harassment policy, but his discharge was overkill.

A Barnard College campus security guard (and union president) who was terminated after more than 23 years on the job for refusing to examine a witness in a grievance proceeding because she wore a low-cut blouse was reinstated by an arbitrator. It was clear the guard violated the college’s discrimination and harassment policy, but discharge was excessive for the infraction. The guard’s termination was reduced to a suspension, but without backpay, and with lost seniority rights for the period of suspension (Barnard College and Transport Workers Union, Local 264 . Carmelo R. Gianino, selected by the parties).

Grievance hearing ends abruptly. The employee was representing the union and one of its members at a disciplinary hearing related to medical leave. A witness was testifying as to whether the union member had submitted documentation, so that he could properly be continued on modified leave. The employee indicated he had questions for the witness. Then he took a deep pause, and announced he could not examine her; she was making him uncomfortable because her blouse was cut too low. The hearing ended at that point.

For his part, the employee later explained that he could no longer "sit around without saying how he feels when he’s uncomfortable" and that he had "seen many things happen on the campus that he doesn’t say anything about."

Fired. Several months later, the college terminated him and banned him from campus, concluding he had violated its policy against discrimination and harassment by making sexualized comments about a female staff member’s wardrobe and appearance. The college contended that his behavior was not only unprofessional, it was also rude and insulting. Exacerbating his conduct was the fact that the employer was a women’s college; in his position, he was charged with protecting the female student population and staff; he had been trained annually on Barnard’s policy against discrimination and harassment and should have been aware of the school’s "culture of honoring self-determination and choice, particularly for and by women." Moreover, lesser disciplinary measures, such as transfer to another position, were insufficient because "it is unavoidable that you would be in consistent contact with women, [so] there is no position in which you could be moved."

He filed a grievance, which went to arbitration. The union posed the question whether the college violated the NLRA by firing him. The college wanted its discharge decision upheld.

Discharge was excessive. The arbitrator sustained the grievance in part, finding that the employee did violate college policy, but concluding that discharge was unwarranted for the transgression. Observing that one year had passed since the incident, the arbitrator said that a termination case should have been adjudicated much sooner.

On the merits, the arbitrator concluded that, while the employee committed the misconduct charged, and the college was within its rights to discipline him, termination was "overkill." The 23-year employee had no marks against him. (There had been hints of earlier allegations against the employee, but none were formalized and made part of his employment record, so the arbitrator would not consider them.) Therefore, he deserved a lesser penalty for the infraction. The arbitrator ordered the employee reinstated. As punishment, however, the employee was denied back pay, and he lost his seniority rights for the period of suspension.

Companies: Barnard College

Cases: Arbitration Labor SexualHarassment SexDiscrimination Discharge UnionsMembers GCNNews

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