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IN THE MATTER OF ARBITRATION BETWEEN
PHIPPS HOUSES SERVICE, INC. AND
LAMBERT HOUSES REDEVELOPMENT CO,
Employer
ARBITRATION AWARD
and
LOCAL 32BJ, SEIU,
Union
_______________________________________________ x
APPEARANCES:
For The Employer: Kevin McGill.. ............... Anorney
Colleen McAuliffe .......... VP Human Resources
Jacqueline Aleman .......... Property Manager
For the Union: Amy Lynne Jtzla .............. Attorney
Roberto Vasquez .............. Delegate
Elizabeth Cordero ............ Translator
Agustin Carela .................. Handyman
Richard Liviano ................ Handyman
Humberto Almanzar.. ........ Grievant
The above named Union and Employer are parties to a Collective Agreement that
provides for the Arbitration of unresolved disputes that may arise during the term of the
Agreement. ln accordance therewith and with the consent ofboth parties the undersigned was
designated as Arbitrator to hear and determine the following issue in this case as set forth in the
submission agreement dated November 15, 2001.
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Issues:
"Whether this instant grievance is arbitrable pursuant to the terms of the
CBA?"
"Did the Employer have just cause to terminate Humberto Almanzar? And if not,
what shall be the remedy?"
The hearing was held at Local 32BJ, SEIU
1
located at 14 0
Huguenot Street
1
New Rochelle, New York, on November 15, 2001, at
which time both parties appeared with their witnesses and proof.
Full opportunity was afforded the parties to be heard, offer
evidence and argument and to examine and cross examine witnesses.
Witnesses were duly sworn. At the conclusion of the hearing both
parties stated they had presented their respective cases in full.
AWARD
On the substantial and credible evidence of the case as a
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whole, the Arbitrator finds, despite the issue of arbi trabili ty /
and the Grievant's alleged noncompliance with company rules and
directives regarding substantiating his absence, that based upon
the unique facts and circumstances present in this instant
matter, the Grievant, within 72 hours of receipt of said Award,
shall be reinstated to his former position without back pay or
benefits.
Dated: December 28, 2001
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AFFIRMATION
STATE OF NEW YORK)
COUNTY OF KINGS)
The undersigned under penalty of perjury affirms that he is the
arbitrator in the within proceeding, and signed same in
accordance with arbitration law of the State of New York.
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BACKGROUND
The above named parties are signatories to a CBA which
provides for binding arbitration of disputes arising therein
under.
This instant arbitration is the result of Phipps Houses
Service, Inc. and Lambert Houses Redevelopment Co. (Employer)
having terminated Humberto Almanzar (Grievant) by letter dated
5/23/01 for failure to comply with its company rule and company
directive to produce medical documentation to substantiate the
extent of his absence.
The Grievant was employed as a handyman with nine years
seniority and is a member of Local 32BJ, SEIU (Union).
The undisputed facts established that on 3/12/01, the
Grievant was poisoned while work by his coworker, shop
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steward, Fernando Rameria and was rushed to the emergency room of
St. Barnabas Hospital. He was subsequently released and placed
under ongoing medical care and monitoring.
Mr. Rameria subsequently arrested and criminally
charged, but died prior to his criminal trial.
Prior to this incident, the Grievant had been approved and
scheduled for four weeks vacation commencing on 4/1/01. Despite
the 3/12/01, poisoning episode he took his scheduled vacation.
When the Grievant returned from his vacation on 5/1/01, he
was told several times by the property manager and the VP of
Human Resources in early May that before he could return to work
he needed to provide medical documentation to substantiate why he
has not been at work since 3/13/01.
The Employer contends the Grievam:_ had not presented its
requested and required medical documentation and was therefore
terminated on 5/23/01.
Preliminarily the Employer argues this grievance should be
denied on the basis that this grievance is untimely under the
terms of Article 19 of the CBA which requires the Union to submit
to arbitration a termination within ten days of receipt of the
notice of termination.
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The facts established the Grievant was terminated by letter
dated 5/23/01, and the Union filed for arbitration on 10/3/01,
well exceeding the contractual ten day limitation.
The Employer, assuming arguendo that the Arbitrator finds
this grievance arbitrable, maintains it had just cause to
terminate the Grievant for his repeated refusal to comply with
its established rule and several oral directives from his
immediate supervisors to submit medical documentation to
substantiate his absence from work since March 13, 01.
The Employer acknowledges the unfortunate, criminal act by a
coworker against the Grievant on 3/12/01 incident caused him to
seek medical attention and was the cause of his initial absence.
Nonetheless, the Employer states that from the date this incident
to the Grievant's termination it had not received any medical
records or diagnosis or was apprised how and if the Grievant was
being medically treated or when he would be able to return to
work.
The Employer states it had no alternative but to terminate
the Grievant because of his willful refusal to comply with its
reasonable request to substantiate his absence of approximately
2.5 months.
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For all these reasons the Employer respectfully submits that
even considering the merits of this grievance, the Arbitrator
should deny it.
Union Counsel states it is in a difficult position and
unable to defend against the Employer's claim that this grievance
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is untimely given the fact the union delegate assigned to this "'
Employer has been terminated by it for unrelated to this
grievance job performance issues. It states it is further
hindered by the fact it is unable to l o ~ t e its file regarding
the Grievant's termination to substantiate the efforts to which
it undertook to grieve his termination. The Union submits for all
of these unique reasons and excuses that the Arbitrator should
not find this grievance untimely and allow it to be decided on J
the merits.
As tc the merits of this matter, the Union strenuously
argues the Grievant had been employed for nine years without
prior discipline and deserves better than what he got from this
Employer.
It arduously assertE thE genesis of thE Grievant's
termination stems from the undisputed fact he was poisoned while
at work after ingesting water in a bottle tainted with ammonia by
a coworker which caused him to sustain injury.
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The Union argues it is the height of insult for this
Employer, knowing full well why the Grievant was absent to
terminate him for an alleged failure to produce medical notes
attesting to his medical condition.
The Union further disputes the Employer's claim the Grievant
failed to produce medical documents when requested to do so. The
documentary evidence established the Grievant submitted three
medical notes, one prior to his termination and two post
discharge, i.e. Union Exhibit #2 dated 5/1/01; Union Exhibi.t #6
dated 6/1/01; and Employer Exhibit dated 7/5/01.
The Union submits the credible testimony of its witnesses,
as well as the aforementioned documentary evidence, should causE
no other conclusion, but the Employer did not have just cause tc
terminate a nine year employee who sustained injuries as a result
of being a victim of a crime while at work.
Therefore, the Union requests the Grievant be reinstated to
his former position and be made whole for all losses incurred.
OPINION
Based upon the Grievant's written notice of
datec 5/23/01, anc thE Union's woefully latE demand for
arbitration dated 10/3/01 the Arbitrator finds the Union's demand
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for arbitrator is clearly beyond the contract's ten day
limitation for discipline to be submitted for arbitration.
Normally a 5.5 month delay in submitting a termination, under the
language of this contract, and the equitable argument of this
Employer that the Union be held accountable to the terms of the
CBA just as it expects and argues the Employer should assiduously
comply with all of the terms of the contract would result in a
denial of the Union's grievance upon a finding in favor of the
Employer's procedural issue of arbitrability.
Albeit, the Arbitrator opines the uniqueness of this
particular case is without equal and causes him to give greater
weight to the Grievant's compelling equities over that of the
Employer's compelling arguments t.c arbitrability and it
alleged noncompliance with company
ln sum that which the Arbitrator refers to as the Grievant's
equities are. his nine year tenure devoid of discipline and his
unprovoked victimization at work by c coworker who was a union
steward.
The Arbitrator holds it is not if ever, that c
criminal assault by a union shop steward and malfeasance by c
J union delegate inures to a Grievant's benefit and causes the
Grievant's equities tc supplant th(- Employer issues of
arbi trabili ty and a just cause terminatior.. Nonetheless, this
Arbitrator is of the firm belief that had it not been for the
criminal assault visited upon the Grievant by his coworker while
at work, he would still be at work and not subject to
disciplinary measures. The fact remains that all the issues
before this Arbitrator for determination stem from the Grievant
being a victim of a crime while at work.
As previously stated the Employer is clearly within his
right to expect the Union to comply with Article 19's time limits
and for it to have the right to enforce its reasonable rules as
well as expect employees to comply with managerial directives.
The Arbitrator finds that despite the issue of arbitrability
and failure to comply with management's directives, the Grievant
is entitled to reinstatement by virtue of the aforementioned
equities and uniaue circumstances of this case.