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Title: Employer and Union
Date: October 29, 2001
Arbitrator: Philip Kienast
Citation: 2001 NAC 136

 
In the Matter of Arbitration

          between

Employer

          and 

Union

 

OPINION
AND
AWARD

 

                                                                                            

OPINION

            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:

Did the Employer have just cause to discharge Jon Montes on November 9, 2000?  If not, what is the appropriate remedy?

Pertinent Agreement Provisions

ARTICLE 14 – DISCHARGE, NOTICE AND REPORTING PAY

14.01  Discharge for Cause.  The Employer shall have the right to discharge any employee for just cause, which shall be defined to include, but not be limited to:  insubordination; dishonesty of any type; negligence which results, or could result, in an accident; excessive absenteeism and/or tardiness; use or unauthorized possession of drugs or alcohol on Company premises; sleeping on the job; conviction of a crime; fighting on Company premises; or gross neglect of work.

14.02  Notice of Discharge.  The Employer shall give an employee the reason for discharge not later than the time of discharge.  This required notice shall not in any manner affect the requirements of discharge for just cause only.  Written notice of the reason for the discharge shall be given to the employee, with a copy sent to the Union, within five days, not including Saturday or Sunday, following the discharge.

ARTICLE 20 – GRIEVANCE PROCEDURE

20.02  In the event of arbitration, the arbitrator shall have no authority either to add to or subtract from the terms of this Agreement but shall be confined to a determination of the correct interpretation or application of the grievance with respect to the issue presented.  The cost of the arbitrator shall be paid by the loser, as determined by the arbitrator.  The cost of a court reported transcript with a copy for the arbitrator shall be borne by the party requesting the court reporter, except that if the other party requests access to the transcript, the cost of an original and two copies of the transcript shall be shared equally by the parties.  The parties shall share the cost of facilities, and each party shall bear any other costs incurred in the arbitration process by that party.

ARTICLE 21 – MANAGEMENT RIGHTS

21.01  The Union recognizes the right of the Employer to operate and manage the Employer’s facilities, including but not limited to the right to establish and require fair standards of performance; to maintain order and efficiency; to direct employees; to determine the materials and equipment to be used; to implement new and different operational methods and procedures; to determine staffing levels; and to determine the kind, type and location of facilities.

Background

            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:

When I went to tip the van driver and retrieve my luggage the driver called me back, looked at me in a way that made me feel very uncomfortable and proceeded to say –

“So do you know who I Am?…”  I nodded no, not really certain where this was going, he was leaning in to me and whispering…he then said…well I’m the King, I’m the Prince and then some other words which I could not make out – since at this point I started to back off.

I know it may sound strange but I did feel as if he was trying to threaten me or something, he made me feel very uncomfortable and I was speechless, it was not just what he said but the way he said it and looked at me.

            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:

Meeting with Jon Montes re statements he made to a guest on 11/2/00

Fred explained the purpose of the meeting – Jon said that if this is an investigation against him, he wanted his union rep present.  Fred said that was fine, and that right now he just wanted to clarify a statement he had made to a guest.  John agreed.

Fred had Jon read the statement as emailed to Mr. V by the guest.  Fred had removed the guest name to protect her privacy.

Jon stated he didn’t say “I am the king, I am the prince” I said, “I am the price of the kind, the king of the world.”

Fred asked a series of questions trying to determine in what context Jon would say that to a guest.  For what purpose would Jon say that?  Jon said repeatedly that he was “just trying to let them know.”  Fred asked, know what?

Fred reviewed the section of Jon’s training checklist about “appropriate conversations with guests.”  Fred asked how Jon perceived this as an appropriate conversation.  Fred gave an example of a political statement that could offend a guest who had opposite political views.  And could Jon understand how that would not be an appropriate conversation with a guest?  Jon said “when a guest opens a door [to a conversation], I walk through it.

Jon explained that when these guests were on the shuttle, they were asking me to wait for the president of Hilton, “or something.”  They told him he had to wait, he had to wait, the president was on his way.  “So when we got to the airport and I was off loading their bags, I asked one of the ladies, ‘do you know who I am?’”  She said no.  “I told her I was the prince of the king – the king of the world.”

John Watling asked Jon why he didn’t just say, “have a nice day?”  He replied that he wanted them to know who he is.

Sherrie Homer asked Jon if he was trying to identify himself as a Christian?  Jon said yes.  Fred then re-addressed the issue of appropriate conversations with guests.  Fred said, in this day in age, when religion can be such a controversial issue, how could you think this would be an appropriate conversation?”  Jon replied that he wasn’t trying to be mean or rude, that he didn’t raise his voice, and didn’t mean for her to be frightened, and that he would write a letter of apology to the guest if needed.  At no point did Jon demonstrate that he could see the situation from the guest’s point of view, trying to understand how the guest could have interpreted his statement.

Fred explained that he questioned Jon’s decision-making ability and that Jon did not seem to understand why his statement was inappropriate.  Jon stated that he wasn’t going to go any further with this meeting without a union rep.  Fred said that was fine, and that while we continue to collect information, he would be placed on investigatory suspension and that either Fred or John Watling would call him Thurs afternoon or Fri morning to schedule a follow-up meeting.

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.[1]

            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):

Fred explained the purpose of the meeting – Jon said that if this is an investigation against him, he wanted his union rep present.  Fred said that was fine, and that right now he just wanted to clarify a statement he had made to a guest.  John agreed.

          The meeting notes conclude by indicating a second meeting will take place:

Fred explained that he questioned Jon’s decision-making ability and that Jon did not seem to understand why his statement was inappropriate.  Jon stated that he wasn’t going to go any further with this meeting without a union rep.  Fred said that was fine, and that while we continue to collect information, he would be placed on investigatory suspension and that either Fred or John Watling would call him Thurs afternoon or Fri morning to schedule a follow-up meeting.

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:

A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.  A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.  Certainly his presence need not transform the interview into an adversary contest.  Respondent suggests nonetheless that union representation at this stage is unnecessary because a decision as to employee culpability or disciplinary action can be corrected after the decision to impose discipline has become final.  In other words, respondent would defer representation until the filing of a formal grievance challenging the employer’s determination of guilt after the employee has been discharged or otherwise disciplined.  At that point, however, it becomes increasingly difficult for the employee to vindicate himself, and the value of representation is correspondingly diminished.  The employer may then be more concerned with justifying his actions than re-examining them.  (Emphasis added).

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.

AWARD

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.

 

___________________________________

Philip Kienast

Bothell, Washington

December 11, 2001

 

 

[1] 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.

 

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