Title: Employer and Union
A hearing in this matter was held on September 25, 2001 and the record closed upon receipt by the Arbitrator of post hearing briefs on October 29, 2001. The parties stipulated the matter was properly before the Arbitrator for disposition and that he retains jurisdiction as to any matters of remedy, if ordered. Upon review of the record, the Arbitrator has framed the issue for decision as:
Pertinent Agreement Provisions
Jon Montes, the grievant, drove the Hotel’s shuttle to and from Sea-Tac Airport from 11:00 p.m. until 7:00 a.m. The shuttle bus operated every 15 minutes throughout the day. In the early morning on Thursday, November 2, 2000, John Watling alerted Montes that a VIP group would be leaving for the airport shortly. As Mr. Montes prepared to leave the hotel on the 6:30 a.m. run, he was told by someone that he had to wait for the “VP of sales.” Within a few moments the VP boarded the bus and it departed several minutes behind schedule with approximately twenty persons on board. The passengers consisted of twelve Doubletree sales representatives and their superior to catch a flight to a regional meeting along with some flight crews.
As the Doubletree group disembarked at the airport Mr. Montes went to the rear of the bus to place their luggage on the curb. While completing this task he asked one of the group, Anne Santisteven, if she knew who he was. Before she could reply, Mr. Montes went on to state: “I am the prince of the king—the king of the world.” Ms. Santisteven reported this statement scared her. She also told others in the Doubletree group about the grievant’s statement. The following Monday management at the Seattle Doubletree asked Ms. Santisteven to e-mail her account of the incident, which states:
Subsequently a meeting was held on Tuesday, November 7. Mr. Montes was asked to attend by Fred Tustin, the front office director. Jon Watling, the guest service manager and Sherrie Homer, the human resource manager were also in attendance.
The Employer’s note of that meeting states:
No further meetings took place. On Thursday, November 9, Fred Tuiston called the grievant and told him he was discharged.
The Employer contends the grievant scared and offended a guest on November 2 and stated he would make similar statements in the future if a guest “opened the door” to a conversation. It argues the grievant’s conduct and his refusal to follow the common sense rule of the Employer not to engage guests in conversations that upset them is grounds for summary termination. Moreover, the Employer maintains the grievant’s disciplinary record supports its decision to terminate in that it demonstrates a refusal by the grievant to take responsibility for his actions.
The Union contends the grievant’s behavior was not so egregious as to warrant summary discharge. It argues the record discloses the grievant offered to apologize to the guest. Moreover, it maintains the objective facts of the incident to not warrant a finding the grievant’s conduct was threatening. It notes no threat was even implicit in the statement and that it was made in a public place while the guest was surrounded by co-workers. Finally, the Union contends the failure of the Employer to permit Union representation at the November 7 investigatory interview plus its failure to supply written notice of discharge per Section 14.02 are separately and together, serious procedural violations that justify modification of the discharge.
Analysis and Conclusions
Turning first to the procedural issues raised by the Union, it is generally accepted that some due process violations such as failure to send the Union a contractually required notice of the discharge of a unit member should be remedied in proportion to the prejudice imposed on the discharged employee by the oversight. If no prejudice is shown by the evidence, then no remedy is required. However, if substantial prejudice to the grievant is proven, then the appropriate remedy may include setting aside the discharge decision.
In the instant case, the Employer failed to provide written notice “of the reason for the discharge” to the grievant and/or the Union within five (5) working days as required by Section 14.02 of the Agreement. However, the Union did not prove that this omission prejudiced the grievant or the Union in challenging the discharge decision. Moreover, the record discloses the Union received written notice of the reasons for discharge in a letter from the Employer dated November 30, 2000 in response to its grievance filing that Mr. Montes had not been discharged for just cause. Accordingly, the Arbitrator concludes that absent evidence of prejudice to the grievant or the Union, the Employer’s failure to follow the procedure set out in Section 14.02 does not in itself call for mitigation.
It is undisputed the grievant requested a Union representative at the start of the meeting to which he was summoned by management. The notes of human resource director, Sherrie Homer, begin as follows (J2):
The meeting notes conclude by indicating a second meeting will take place:
No second meeting took place and therefore no opportunity at all was made to ever provide the grievant with Union representation prior to his discharge.
From the foregoing analysis, the Arbitrator concludes the meeting called by management on November 7 was in fact an investigatory meeting at which the grievant had clearly stated at the very beginning that he wanted a Union representative present. The notes make it clear management did not respond positively to the request but simply proceeded with its questioning of Mr. Montes.
This due process violation by the Employer does prejudice the grievant’s position. It deprives Mr. Montes of representation by an experienced advocate. A Union representative may have been able to convince the Employer that its own interests may be better served by disciplinary action short of discharge. This view is consistent with the reasoning of the NLRB in Weinberg where the Board notes:
The Arbitrator concurs in the Board’s view that once the decision to discharge is made the Employer in fact becomes more interested in defending its decision than exploring other ways of dealing with the situation.
If a Union representative had been timely called after the grievant’s request he or she would have had the opportunity to counsel the employee as well as present other options for consideration. Because Mr. Montes was denied this representation, his interests were severely and negatively impacted by the Employer’s nonresponse to his request. The Arbitrator finds this prejudice is sufficient cause to modify the discharge penalty imposed by the Employer, since the offense consisted of no more than an inappropriate religious comment to a guest. There is no evidence that the statement or its context would induce fear in a reasonable person. Accordingly, a decision to set aside the discharge based on the Employer’s procedural violation will not have the noxious impact of putting co-workers or customers of the grievant in any kind of danger.
In light of the foregoing, the Arbitrator finds the discharge of Mr. Montes should be downgraded to a written warning because of the Employer’s failure to grant his request for a Union representative during what was clearly an investigatory interview. The grievant’s right to this representation is implied by the just cause language of the Agreement and has been the clearly enunciated public policy of the United States sine the decision of the U.S. Supreme Court in Weingarten [NLRB v. Weingarten, 420 U.S. 25, 88 LRRM 2689 (1975)].
As a remedy for the Employer’s violation, the Arbitrator will order the grievant’s discharge reduced to a written warning for inappropriate conversation with a guest. The Employer’s directives to avoid controversial subjects in conversations with guests is reasonable. The Arbitrator will also order the grievant be made whole for his unjust discharge together with interest on lost wages. Finally, the Arbitrator determines the Employer is “the loser” of this arbitration and pursuant to Section 20.02 of the Agreement shall pay the fees of the Arbitrator.
1. The Employer did not have just cause to discharge Jon Montes on November 9, 2000.
2. The Employer shall reduce the discharge to a written warning for having an inappropriate conversation with a guest.
3. The Employer shall reinstate the grievant to his former position and make him whole for lost wages and benefits.
4. The Employer shall add interest at 12% to the wages owed the grievant pursuant to RCW 19.52.010.
5. The Employer is the loser per Section 20.02 and shall pay the fees of the Arbitrator.
6. The Arbitrator retains jurisdiction for the sole purpose of adjudicating any disputes over the implementation of the above ordered remedies.
December 11, 2001
 See the discussion in Remedies in Arbitration, pp. 91-96 by Marvin Hill, Jr. and Anthony V. Sinicropi, BNA Books, 1981 and Arbitration 1994, 47th Annual Meeting of the NAA, 1994, BNA, pp. 22-41.