IUOE v. Port of Seattle, ___ Wn.2d ___, (2013) (view Court’s opinion)

In this case an employee of the Port of Seattle hung a noose at work.? After an investigation, the Port of Seattle determined that the conduct violated its zero tolerance policy against racial harassment, and terminated the employee.? The employee’s union, IUOE, filed a grievance and ultimately an arbitration.? The arbitrator found that the employee intended the noose as a “joke” toward a 70 year old white co-worker, who did not find it harassing. ?He further found credible the employee’s testimony that he didn’t know the noose was racial and “his impression of a noose was not racial, but derived from ‘Cowboys and Indians.'” The arbitrator found that the employee was “more clueless than racist,” and reduced the discipline from a termination to a 20 day suspension.? The Arbitrator ordered the employee reinstated with back pay.? The union appealed.

The Superior Court reversed the Arbitrator’s ruling, and ordered a six month suspension instead.? The Superior Court found that the Arbitrator’s ruling was so lenient that it violated the well-established, explicit, and dominant public policy reflected in the WLAD.? The Superior Court also ordered a sincere letter of apology, diversity and antiharassment training, and a four year period of probation. The Union appealed and the Court of Appeals affirmed except insofar as the Superior Court substituted its discipline for the discipline ordered by the Arbitrator.? Int’l Union of Operating Eng’rs, Loca/286 v. Port of Seattle, 164 Wn. App. 307, 326, 264 P.3d 268 (2011).

On review, the Supreme Court acknowledged that “the noose has hateful, racist, and violent history in this country . . . .” “We acknowledge this terrible and tragic history and condemn the racial violence and threats of violence symbolized by the noose in the strongest terms possible.”? It condemned the employee’s actions as “ignorance and unacceptable.”? The Court nevertheless acknowledged the limited review available from the decision of an arbitrator pursuant to the collective bargaining process, and that it was bound by the Arbitrator’s findings.

The Court acknowledged that “like any contract, an arbitration decision arising out of a collective bargaining agreement can be vacated if it violates public policy.” Citing Kitsap County Deputy Sheriff’s Guildv. Kitsap County, 167 Wn.2d 428,435,219 P.3d 675 (2009).? A Union arbitration decision can only be vacated “if it violates an ‘explicit,’ ‘well defined,’ and ‘dominant’ public policy, not simply ‘general considerations of supposed public interests.'”? The Court rejected to the Union’s argument to the contrary, and found that a union arbitrator’s decision could be vacated if it violated that public policy reflected in the WLAD.? The Court ruled? that in order to qualify the statute need not “list all possible discriminatory acts” and assign levels of discipline for each.

The Court concluded that in light of the Arbitrator’s factual findings that a 20 day suspension in this case did not violate the public policy reflected in the WLAD: “[W]e cannot say that a 20-day unpaid suspension would not provide sufficient discipline to cause this or other employees to understand the serious nature of a noose in the workplace and thus prevent a similar incident in the future.”? The Court was careful to limit its ruling to the unique facts of this case: “We choose not to speculate what level of discipline would have been insufficient to prevent a similar incident in the future. . . . . We must leave those questions to another day.”

Last, the Court confirmed that even where an arbitrator’s ruling violates public policy, “trial courts cannot impose their own remedy after vacating an arbitration decision.”? “[I]nstead it should remand to the arbitrator for further proceedings.”

WELA filed an amicus brief and argued that the WLAD was an explicit, well defined and dominant public policy sufficient to vacate an arbitrator’s ruling.? WELA took no position about whether the discipline in this case was sufficient to violate the public policy reflected in the WLAD.

View WELA’s brief