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Case #415727
Employee: Premises:
A dispute having arisen between COLLINS BUILDING SERVICES, INC. (hereinafter referred to as the "Employer") and Local 32BJ, Employees "Union") International concerning Union (hereinafter Avenue, referred to same was
Service as the
1065
Sixth
the
submitted to the Undersigned for arbitration and Award pursuant to the pertinent provisions of the then current Collective
at
hearing held on
FACTS
The
Grievant, a
Marcos
Acevedo,
was
employed
at 13,
the
above for
premises as
porter.
He was
terminated on April
2011
failure to abide by the Employer's rules and regulations, the tenants to make photo by copies of to personal employees was
asking and
documents of the
behavior private
talking The
tenant in
lives.
Grievant
reinstated
OPINION
The Employer submitted several documents and presented two witnesses in support of its decision to terminate the Grievant. The first document was a letter from John Galuzzo, a vice
president of a customer, the and Grievant telling was them asking where
who complained that about This their makes the and families us feel
lived he
complained copy
that
photo
machines
employees Grievant
Galuzzo' s their
letter
requested
that
removed
floor
immediately
the District Manager for the Employer, the charges against the the
investigate the HR
Grievant. After
with
department
and
Grievant.
given a On
(C.Ex.2).
Grievant was terminated by David Martinez, the Director of Human Resources (C.Exh.4). The Employer argues that the Grievant, was only and although employed in the building for The allegations against the Grievant
An
employed by the Employer for two weeks before he was terminated. serious certainly grounds for termination. employee has no right to
use any of the facilities or property of a customer for his own business. Every employee who is in the building service industry knows this. In addition, them "very a complaint by a was customer that the Grievant The
was discussing personal information with its employees and made uncomfortable" unacceptable behavior. customer was so upset by the actions of the Grievant that they requested that he be removed from their floor. On July 13, 2011, Angela Moroney, the Property Manager for BREA Property Management, wrote the Employer requesting that the Grievant not be returned to the building (C.Exh.3). In Grievant, summary, in the Employer argues his that the actions not of the the
particular
attitude
toward
only
Employer but the customer as well, certainly was just cause for his termination. The Employer requests that the termination be upheld and the grievance be denied in all respects. In any event the Employer points out the Grievant cannot be returned to the building. The Union's first response is to the Employer's argument (c)
that the customer is refusing to allow the Grievant to return to the building in any event. The Union cites Article XIII 1. of the Agreement (quoted below). Under that Article, if the
Employer does not have "cause" to terminate a Grievant and the tenant is refusing to allow the Grievant to return to work in
3
the
building,
there
is
procedure
to place
the
Grievant
in
here,
terminate the Grievant and the customer is refusing to allow him therefore Union Article XIII Grievant has must followed. The recognizes
argues that Article XIII has other requirements. Regarding the termination of the Grievant, the Union argues that the Employer has failed to sustain the burden of proof to justify a has over be termination. twenty-one ignored. Under the Agreement, of service has in the the Employer must building the which of prove it had just cause to terminate the Grievant. The Grievant years The cannot Employer accused Grievant
It supported its
accusations with letters from the employees of the customer but none of them appeared to testify against the Grievant. The only evidence offered was the testimony of two of the Employer's They managers who spoke to both the customer and the Grievant.
admitted that they had no direct evidence of the accusations and relied upon the discussions with the customer. The exhibits and testimony of the Employer's witnesses therefore are all hearsay and the Union has had no opportunity to examine the witnesses. This evidence has no probative value and must be disregarded. The Grievant did appear and testify. He denied all the accusations against him but did admit that he asked the customer to make some copies. He testified that the customer agreed and did not say anything to him. Based on the against failure of the Employer to prove its case
the Grievant,
returned to his former position with restoration of all back pay and benefits.
4
In made a
the
event
the
Arbitrator
finds
that
the
customer has
the building,
QUESTIONS
was the Grievant terminated for just case? If not, what shall the remedy be? In the alternative, is
ARTICLE XIII Management Rights and Obligations; Seniority and Job Security
(c) If an employee is removed from a location at the good faith demand of a customer, the Employer may remove the employee from further employment at that location, provided there is a good faith reason to justify such removal, apart from the demand itself. Unless the Employer has cause to discharge the employee, the Employer will place the employee in a similar job at another facility within the same county covered by this Agreement, (unless the Union and the Employer shall agree to place the employee in a similar job in a different county covered by this Agreement) without loss of entitlement seniority or reduction in pay or benefits and pay Displacement Pay to such employee equivalent to the Termination Pay
5
schedule set forth in Article XIV, Section 26 (a), but not less than two (2) weeks pay. In the event an employee is transferred to another building and is not filling a vacant position, the Employer shall seek volunteers on the basis of seniority within the job title. If there are no volunteers, the junior employees shall be selected for transfer and receive the same Displacement Pay and protection afforded to the transferred employee. In the event an employee is terminated pursuant to this section, the Employer must raise the issue of transfer in such termination arbitration.
DISCUSSION
The of a
Employer is
is
correct that
the
the and
Grievant are serious. Discussing personal items with an employee customer never permitted. Here, exhibits were clear that the alleged comments and questions to the customer's employee made her uncomfortable. witness, testified David that Martinez, the the Director of The Employer's Resources, copies of Human he made
Grievant
admitted
that
child support papers on the customer's copying machines and when asked if he had obtained the customer's permission, gave a flip answer second commenting step "What that is he the big deal?" on Martinez the also testified that the Grievant admitted to the Arbitrator at the meeting made copies customer's copying machines. The customer Union to does not deny copies, that but the Grievant did he ask the the
make
some
testified
asked
at the second step hearing, when the Arbitrator asked him if he he replied "No." The Arbitrator never asked him if he asked the customer to make copies. As Grievant, However, this employee employee. stated in by the Employer, the the allegations that the against the
particular
claim
Grievant
asked
personal questions of an employee of the customer are serious. the Union argues that the Employer has failed to prove by direct from evidence, the e.g., both the of testimony the of the they or The even supervisor complaining that
charge
Employer's
witnesses
testified
never spoke to the woman directly. The Grievant. this but result
is,
as to the he
by
the that
Union, the
there against
insufficient
evidence
this
charge
claim
he admits
the
customer to do so and then testified that the testimony of the Employer that he admitted to making copies to the Arbitrator was inaccurate. He testified that Arbitrator Young never asked him if "he asked anyone to make copies" only if he made the copies. This answer of the Grievant certainly confirms the argument of the Employer that the Grievant has a "flip attitude" about using a customer's property. This behavior is unacceptable. I find to the was that the a Employer has termination to failed for an to offer sufficient with
I
sustain
the am the in
length of
Therefore, time
termination terminated
suspension he was
until
returned
work
mitigation.
7
also
find
that
the
Employer has
demonstrated that
the
customer has made a "good faith demand" that the Grievant not be returned to the building. Therefore, as argued by the Union the provisions of Article XIII are applicable.
AWARD
1) The grievance is granted to the extent that the termination of the Grievant is reduced to a disciplinary suspension. the termination
until the Grievant was returned to work in mitigation. 2) The Grievant shall be returned to work in accordance with XIII of the Agreement. 2) The Arbitrator shall retain jurisdiction for the sole
purpose of resolving any disputes that may arise out of the implementing of Article XIII.
October
6th
2011
Contract Arbitrator
hereby
affirm
pursuant
to
CPLR
Sec.
7507
that
am
the
instrument which
DATE: October
6th
2011
Contract Arbitrator