- - - - - - - - - - - - - - - - - - - - - - - X In the Matter of the Arbitration between MICHAEL FISHMAN, PRESIDENT, LOCAL 32BJ, SERVICE EMPLOYEES INTERNATIONAL UNION

OPINION & AWARD

Case #415727

- and COLLINS BUILDING SERVICES, INC. - - - - - - - - - - - - - - - - - - - - - - - X

APPEARANCES:

For the Union:

Ryan Borgen, Esq. Associate General Counsel

For the Employer:

Arthur Viviani, Esq. David Martinez, Director of Labor Relations

Employee: Premises:

Marcos Acevedo, Grievant 1065 Sixth Avenue

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

Bargaining Agreement September 15, 2011.

between the parties

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

inappropriate about their

behavior private

talking The

tenant in

lives.

Grievant

reinstated

another building in mitigation on July 18, 2011.

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

HUB International, "their they employees

who complained that about This their makes the and families us feel

lived he

uncomfortable." was continuously to be help

In addition, using him. from the

complained copy

that

Grievant asking the

photo

machines

employees Grievant

Galuzzo' s their

letter

requested

that

removed

floor

immediately

(C.Exh.1.). met with He the

Anthony Cuomo, Galuzzo also met to

the District Manager for the Employer, the charges against the the

investigate the HR

Grievant. After

with

department

and

Grievant.

investigation, was suspended

the Grievant was indefinitely

given a On

discipline warning and April 13, 2011, the

(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

several years, are very

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

another building. to be returned

It argues that, to the be building,

here,

there was no cause to the provisions that of the

terminate the Grievant and the customer is refusing to allow him therefore Union Article XIII Grievant has must followed. The recognizes

already been placed in a

different building but

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

several alleged violations of its work rules.

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,

the Union requests

that the Grievant be

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

legitimate demand that

the Grievant not be returned to

the building,

then the Union requests that the Grievant be also

given the full protection of Article XIII of the Agreement.

QUESTIONS

was the Grievant terminated for just case? If not, what shall the remedy be? In the alternative, is

Article XIII of the Agreement applicable?

RELEVANT AGREEMENT LANGUAGE

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

accusations against the testimony

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

customer to make some copies "maybe two times"

6

and they agreed

without comment or complaint. made copies,

The Grievant also testified that

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

argued sustain second

by

the that

Union, the

there against

is the made the

insufficient

evidence

this

charge

Regarding claims that

claim

Grievant but asked

unauthorized copies on the copiers of never made

the customer, copies

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

evidence Grievant's reducing Grievant

sustain

employee from the to

the am the in

length of

service in the building.

a

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

The suspension shall be from the date of

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

the provisions of Article

purpose of resolving any disputes that may arise out of the implementing of Article XIII.

October

6th

2011

Contract Arbitrator

STATE OF NEW YORK

SS:

COUNTY OF NEW YORK

hereby

affirm

pursuant

to

CPLR

Sec.

7507

that

am

the

individual described in and who executed this is my Award.

instrument which

DATE: October

6th

2011

Contract Arbitrator