In re Lane Cnty.

• Decision Date: 09 May 2021
• Parties: LANE COUNTY, OR Employer and AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, LOCAL 2831, Union
• Court: Oregon Employee Relations Board

LANE COUNTY, OR Employer

and

AMERICAN FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES, LOCAL 2831, Union

Oregon Employee Relations Board Interest Arbitration Awards

May 9, 2021

IN ARBITRATION

OPINION AND AWARD

( [Redacted] Suspension)

Arbitrator: Kenneth J. Pedersen

Appearances:

For the Employer: Stephen E. Dingle, Lane County Counsel, Eugene, OR

For the Union: Julie D. Reading, Tedesco Law Group, Portland, OR

Witnesses:

For the Union: LaRece Rivera, Senior Accounting Clerk / AFSCME President; Jim Steiner, AFSCME Representative ; [Redacted] Senior Stores Clerk / AFSCME Chief Steward.

For the Employer: Angel Cavenaugh, Patient Care Coordinator; Christie Sears, Patient Care Coordinator; Rowena Thornton, Nursing Supervisor; Catherine Malos, Former Nurse Manager (Retired); Aimee Franklin, Former Registered Nurse (currently Nursing Supervisor); Jocelyn Warren, Public Health Division Manager and Health Administrator; Susan Spidell, Patient Care Coordinator; Lisa Nichols, H&HS Quality and Compliance Manager; Karen Gaffney, Director of Health & Human Services; Andrea Muzikant, Former Assistant Director of Health & Human Services.

1. INTRODUCTION

The American Federation of State, County and Municipal Employees, Local 2831 (Union) is the exclusive representative of workers in a bargaining unit defined by contract as "all temporary, probationary and non-probationary employees in permanent positions" (with exceptions noted in the recognition article of the 2017-2020 collective bargaining agreement), employed by Lane County, Oregon (Employer). [Redacted] (Grievant) works as a Senior Stores Clerk and serves as the Union's Chief Shop Steward. Angel Cavenaugh is a member of the unit and works as a Patient Care Coordinator in the Employer's Community Health Center ("CHC") located on the first floor of the Charnelton Building in Eugene.

The Grievant was disciplined with a five-day suspension as a result of his interaction with Cavenaugh on April 12, 2019 and his subsequent actions. The disciplinary notice is dated March 16, 2020. (ER. Ex.9.) A grievance was filed by the Union (ER. Ex. 11) and the matter was heard in a videoconference hearing on February 10 and 11, 2021. At that hearing, the parties agreed that the matter was properly before the undersigned for a decision.¹ Following the hearing the parties filed helpful post-hearing briefs which have proven useful in deciding this matter.

2. FACTS

Friday April 12, 2019 was Cavenaugh's birthday. She and coworkers Janet Abundez and Christie Sears were eating lunch together to mark the occasion. The Grievant joined them and, after taking Cavenaugh's picture, created two videos using the "JibJab" application he'd installed on his personal smartphone. The application allowed the Grievant to paste Cavenaugh's photograph onto the head of the cartoon characters in the videos. In the first, he placed Cavenaugh's face onto a video of a female figure singing a Britney Spears pop song. In the second he placed Cavenaugh's image onto a female figure entering a bedroom in a robe and performing a striptease to a burlesque tune while dancing for a male figure in a bed. The Grievant pasted an image of Ron Hjelm, Manager of the H&HS Community Health Centers Division, onto the male figure. The video includes cartoonish sounds of a cat and, as the femalefigure completes the striptease, and a "boing" sound signifying arousal as the male figure puts out the bedside light. The video ends with a written message, "I unwrapped your present. Happy Valentine's Day."

The Grievant showed the striptease video to Cavenaugh and to Sears and transmitted a copy to Sears as an attachment to a text message. He also showed the video on his phone to other clinic employees located elsewhere in the building including LPNs Seah Lehi and Whitney Winslow. Later in the day, Winslow informed Cavenaugh that the Grievant had shown her the video. Cavenaugh also described the video to her co-worker Aimee Franklin.

The following Monday April 15, Franklin described the incident to Nursing Supervisor Rowena Thornton. Thornton brought Cavenaugh to her office to discuss the matter with Nurse Manager Catherine Malos. Cavenaugh told Thornton and Malos that she did not wish to file a formal complaint because of her concerns about possible retaliation. She agreed however to allow Malos to bring the issue to other members of management.

On April 23, the Grievant came to Cavenaugh and Franklin's work area and asked where Dr. Moxie Loeffler was. Told they did not know, the Grievant asked if Loeffler might be at "the glory hole" for lunch.² Cavenaugh testified that she told Grievant she did not know what he was talking about. As he left, according to Cavenaugh and Franklin, the Grievant stated "Well, I have shit on both of ya." Franklin was disturbed by the remark and testified she made a note about it. A week later, on April 30, Franklin told Malos about the Grievant's "glory hole" comment.³

The Employer's representatives felt they were stymied by Cavenaugh's unwillingness to file a formal harassment complaint. The Employer deputized Assistant Director Muzikant to speak to the Grievant in what was said to be the hope he would admit to creating the video sothat the County could move forward without Cavenaugh's direct involvement. The Employer was also concerned that raising the matter formally might disrupt ongoing collective bargaining negotiations with the Union in the physician's bargaining unit.

At her meeting with the Grievant on May 3, Muzikant asked if he knew about a "video meme with a CHC employee and a manager that was sexual in nature." The grievant testified to confusion at the inquiry, saying he did not mentally connect the inquiry to the "Happy Valentine's Day" Jib Jab video he created and showed to Cavenaugh and others the previous month. The Grievant asked Muzikant if she was referring to a JibJab video and showed her the application on his smartphone. Muzikant was unable to confirm that the "video meme" to which she referred was a JibJab creation. She did not further describe the video to the Grievant. The meeting ended with a mutual pledge to work together make sure that this kind of behavior was not happening in the clinic. Muzikant did not direct the Grievant to refrain from discussing the matter with other employees.

Directly after the meeting with Muzikant, the Grievant approached Sears, who had been present at the April 12 birthday lunch and to whom he had earlier sent a copy of the JibJab striptease video, and asked if she had forwarded it to anyone. The Grievant had concluded that Sears must have been circulating the video and believed that to have been the impetus for Muzikant's inquiry. Sears told the Grievant she had not circulated the video and later told the Employer's investigator that she did not recall his having forwarded it to her.⁴ (Em. Ex. 5, p.8.)

The Grievant contacted Cavenaugh on the morning of May 7. He told her of his conversation with Muzikant about the striptease video and referenced "rumors" about it. He told her "We need to bury this" and testified he apologized to her. Although she later could not recallspecific use of the word "apologize," shortly after her meeting with the Grievant Cavenaugh texted her husband, [Redacted] came and apologized to me."⁵

At some point Public Health Manager Jocelyn Warren attended a breakfast meeting with Manager Ron Hjelm, whose image had been pasted by the Grievant onto the male figure in the JibJab video. According to Warren, Hjelm was "almost in tears" and "horrified" that he was included in the video. Warren testified Hjelm felt bad for staffer included in the video.

Warren decided that the incident provided an opportunity for staff training in what she described as "bystander" issues. She also considered that the JibJab incident opened the door for discussion of the "ubiquity of social media." On June 4 Warren conducted a training session for the Communicable Disease section in which the Grievant worked.⁶ She presented a scenario in which a new employee observes co-workers passing around a phone featuring a "cartoon mocking a coworker not present" that was posted to another worker's Instagram account.⁷ Warren had the group break into smaller discussion group to talk about the scenario.

The Grievant concluded that his interaction with Cavenaugh nearly two months previously was the impetus for the June 4 training. He testified to being upset by the example Warren posed for discussion purposes, thinking it was aimed at him. On either the day of the training session or shortly thereafter the Grievant stopped at the work area of Patient Care Coordinator Susan Spidell and Nurse Spencer Dandy. Spidell testified that the Grievant attempted to show the two what he described as a JibJab video, which he assured to two was notpornographic. She described the Grievant's conversation as "rambling" and weird, because she was not a friend of his. Spidell had been told by Cavenaugh about the April 12 JibJab video back in April. She testified that she sought out Cavenaugh and described her conversation with the Grievant, including an alleged effort to show her a JibJab video. She told Cavenaugh that the Grievant had spoken about Cavenaugh and the video and attributed a comment to him to the effect that "people needed to have thicker skin about this issue." (Er. Ex. 5, p.131.)

For his part, the Grievant acknowledged that he spoke with Spidell and Dandy about the training session with Warren. He quoted himself as saying he had been instructed not to talk about certain matters and was unhappy that those matters then were raised in the form of an exercise in training meetings. He testified he expressed his disagreement with this indirect way of talking about issues. The Grievant said he could not recall mentioning the JibJab video or Cavenaugh to Spidell and Dandy.

After hearing from Sidell, Cavenaugh was angry that the JibJab video was still being discussed by the Grievant with her...