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Title: Turtle Bay Resort and Hotel Employees & Restaurant Employees, Local 5, A.F.L.-C.I.O.
Date: September 28, 2001
Arbitrator: 
Michael Nauyokas
Citation: 2001 NAC 151

 

BEFORE ARBITRATOR MICHAEL F. NAUYOKAS

STATE OF HAWAII

In the Matter of the Arbitration Between 

HOTEL EMPLOYEES & RESTAURANT EMPLOYEES, LOCAL 5, A.F.L.-C.I.O.

                                    Union,

            and

 TURTLE BAY RESORT,

                                    Employer,

_________________________________________________________________________  

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          Grievance of CHRISTOPHER GARDNER                                   
        

          Arbitration Hearing: 

          Date:  September 28, 2001     
          Time: 10:00 a.m.
         

        

                                                                              

ARBITRATION DECISION AND AWARD

 

 

 

 

 

 

 

                                                                                  

Michael F. Nauyokas
Attorney, Mediator & Arbitrator
733 Bishop Street, Suite 2300
Honolulu, Hawaii 96813
Telephone: (808) 538-0553
Facsimile:   (808) 531-3860     
Email: michaelnauyokas@hawaii.rr.com
http://www.michaelnauyokas.com
http://www.acctm.org/mnauyokas/

 

 

INTRODUCTION

            This grievance was presented by the parties to this Arbitrator for final and binding decision under a collective bargaining agreement (“CBA”), dated February 28, 1999, through and including February 28, 2002, between the Union, Hotel Employees and Restaurant Employees, Local 5, AFL-CIO (“Union”) and the Employer, Turtle Bay Hilton Gold & Tennis Resort (“Turtle Bay Resort”).  The parties agreed that the matter had duly proceeded through the steps of the Grievance procedure, was arbitrable, and was properly before the Arbitrator.

            A hearing was held on September 28, 2001, at the Turtle Bay Golf & Tennis Resort located at 57-091 Kamehmeha Highway in Kahuku, on the North Shore of Oahu.  The Turtle Bay Resort was represented by Ernest C. Moore, III, Esquire, and the Union and the Grievant, Christopher Gardner (“Gardner”), were represented by Wade C. Zukeran, Esquire.  Both parties were fully and fairly represented.  The Arbitrator made disclosure of all prior relationships, and the parties waived any objections to having the arbitrator serve.  Sworn testimony was taken, exhibits were offered and made part of the record, and oral argument was heard.  The Turtle Bay Resort and the Union submitted post-hearing briefs for the Arbitrator’s consideration prior to the rendering of this decision.

ISSUES

1.                  Did Gardner fail to comply with the Last Chance Agreement (“LCA”) dated February 3, 2000?

 

2.                  If the termination of Gardner was a violation of the LCA, what is the remedy?

 

 

APPLICABLE CONTRACT PROVISIONS

            The Turtle Bay Resort is a 485-bed resort located on the island of Oahu’s North Shore, and employs over 400 employees.  The arbitration is governed by the CBA between the Turtle Bay Resort and the Union, in force from February 28, 1999 through and including February 28, 2002.  The portions of this CBA allegedly implicated by the controversy before the arbitrator are Sections 16, 17, and 18 of the CBA.

FACTUAL BACKGROUND

            Gardner was originally hired in 1979 by Hyatt Hotels, which operated the The Turtle Bay Resort at the time.  He became a function (banquet) bartender sometime around 1985 or 1986.  in 1999, he requested that his status be changed from full time to part time, in order to permit him to devote more time to his outside activities.  Daryll Hersche, the Food and Beverage Director (“Hersche”) supervised Gardner.  Lili Tani (“Tani”) was the Human Resources Manager, and John Elford (“Elford”) was the General Manager for the Turtle Bay Resort.  Arlene Ilae (Ilae”) was the Union’s Business Agent who represented Gardner.  John Silver (“Silver”) was Gardner’s co-worker who began working as a bartender for the Turtle Bay Resort in October of 1999.

            In April of 1993, Gardner was first disciplined for attendance problems when he “no showed” for a banquet function, a violation of Turtle Bay Resort’s “Sick Leave Policy” which specifically states as follows:


***

All sick calls must be called in four hours prior to beginning of shift.  No sick calls are to be left on voice mail.  Any sick calls on voice mail will constitute a NO CALL NO SHOW.


Sick calls are to be made to a manager on duty.  If a manager cannot be located, adhere to the following procedures: ALL SICK CALLS ARE TO BE GIVEN TO SECURITY.

 

***

 

            As a result of this sick leave policy violation, Gardner was issued a five-day suspension.  The suspension notice warned “to adhere to the departmental schedule, we need you on the job as scheduled.”

            In March of 1995, Gardner and Scott Rollins (“Rollins”), a shop steward, changed their shifts without informing a supervisor.  This caused a problem for The Turtle Bay Resort, and Hersche issued an amonishing memo to Gardner advising him that “You are both aware of the procedures in how to change your schedules and you did not follow the procedure.  If this is repeated, stronger disciplinary action will be taken.”

            In February of 1999, Gardner was issued a five-day suspension for poor attendance.  This was his eighth occurrence under the Turtle Bay Resort’s No Fault attendance policy.  As a result, he was duly admonished in the suspension notice that “attendance (including tardies) causes a major impact on other team members and [the] department…Any further incident will result in a more severe disciplinary action, up to and including termination.”  No grievance was filed over this suspension.

            In June of 1999, Gardner was again in violation of the attendance policy.  Although technically, at this point, the Turtle Bay Resort could have summarily terminated Gardner under the Turtle Bay Resort’s policy, it chose, instead, to give Gardner a break by allowing him to remain as an employee after receiving another five-day suspension.  Specifically, he was warned that “Improvement in your attendance is required.  Any further incidents will result in progressive discipline up to and including termination.”

            On September 11, 1999, Gardner was again in violation of the Turtle Bay Resort’s attendance policy.  In his own words, Gardner explained that the reason he did not report to work was “because I didn’t want to work while I was high.”  As a result of this last attendance policy violation, Gardner was terminated on September 14, 1999.

            Ilae was the business agent assigned to Gardner upon the filing of his grievance as a result of his termination.  Ilae initiated settlement discussions with both Tani and Elford.  Elford was of the position that “he had given Gardner chances in the past.”

            Nearly five months later, after various meetings with the Turtle Bay Resort, Ilae worked on Gardner’s behalf to obtain her goal of reinstating him.  In her effort for another chance, Ilae stressed to the Turtle Bay Resort Gardner’s abuse of illegal street drugs and his commitment to shun such activities in the future.  Gardner’s problems with illegal drug use were well known to the Turtle Bay Resort since Gardner had personally gone to Hersche to disclose his problems a few months earlier.

            While the Turtle Bay Resort was willing to consider settlement, the written proposal tendered by the Turtle Bay Resort and faxed to the Union on December 3, 1999 reflected Elford’s concerns that there be absolutely no possibility of renewed attendance problems on Gardner’s part; if there was any repeat of his attendance problems, Gardner would be gone, no ifs, ands, or buts.

            The four conditions specified in the Turtle Bay Resort’s proposal were tailored to that possibility.  First, the Turtle Bay Resort agreed that Gardner’s absence would be considered a leave of absence, with no pay.  This preserved Gardner’s health and welfare coverage.  Second, the Turtle Bay Resort insisted on the right to conduct random drug testing “for the duration of Mr. Gardner’s employment.”  Third, the Turtle Bay Resort dictated that Mr. Gardner must be available whenever called in to work.”  Finally, in return for reinstatement, Gardner had to agree that “the next absence/tardy will result in termination.”

            The Union did not immediately sign on to the stringent terms of the “last change agreement” (“LCA”) as proposed.  Instead, the Union counter-proposed an agreement which was less stringent.  In the Union’s counter proposal, conditions 1 and 3 remained as proposed by the Turtle Bay Resort.  The Union proposed modifying condition 2 by placing a two-year duration on the right of the Turtle Bay Resort to conduct random drug testing.  As to the fourth condition, no more tardiness or absences under penalty of immediate termination would be accepted.

            Further, the Union proposed that 1) the duration period for the risk of immediate termination would only be for six months; and 2) absences or tardies for which there were “mitigating circumstances” would not result in “immediate termination” for the six-month duration where there were to be no absences or tardies.  These proposals were rejected by the Turtle Bay Resort.

            Gardner remained off work.  Following discussions of the matter on January 6, 2000, the Turtle Bay Resort, by letter dated January 10, 2000, remained adamant to is original terms.  As such, the Turtle Bay Resort advised the Union that its counterproposal was unacceptable and that it would agree to proceed with arbitration as threatened.

            Gardner was involved in the five-month negotiation process. Ilae always made it her practice “to discuss the terms of the settlement with the employee involved” when negotiating any settlement agreement.  Specifically, Ilae stated that, she “would never reach an agreement without the employee’s full knowledge of the terms of the settlement.”

            Ilae specifically discussed with Gardner the Union’s objections to the random testing, as well as the Union’s proposal to limit the period to terminate for any future attendance problems to six months.  Ilea explained that she initially picked the six-months for no attendance problems and discussed that point with Gardner.  Additionally, Ilae discussed with Gardner the point that the Union wanted the exception for “mitigating circumstances” included in the agreement.  When the Turtle Bay Resort stuck to the more stringent version of the proposal, Ilae recommended against accepting the Turtle Bay Resort’s proposal.  Gardner, however, explained to Ilae that he “wanted to return to work and he had requested to accept that the Turtle Bay Resort’s proposal so that he could be returned to work.”

            Gardner’s position was that he wanted to return to work “regardless of the Union’s objections to the document.”  At this point, the Union had no choice, and it ultimately gave into the Turtle Bay Resort’s position over the Union’s objections to the terms, despite the fact that the Union felt the agreement set “bad precedent.”

            Ilae discussed the terms with Tony Rutledge (“Rutledge”), the Union head at the time, and noted her objections.  Rutledge’s position was that “if Gardner wants it, then we will let him take it.”

            Ilae explained to Rutledge that she was still concerned that Gardner was accepting terms that she not agree to.  To make this point clear in the record, Ilae specifically noted on the final Union write up of the LCA, dated February 3, 2000, that:

As discussed, and for the record, the Union still maintains their position as proposed on December 20, 1999 (see enclosure).  However, at the request of Mr. Gardner, the union is accepting your proposal as outlined below.”

 

Ilae also testified as follows:

 

A. (By Mrs. Ilae).  Yes, I had discussions with Mr. Anthony Rutledge because I was not happy with the proposal from the employer and I felt very strongly that by agreeing to something like this was not a benefit to the Grievant nor did I want to set any precedence with the union.

 

Any my discussions with Mr. Gardner, at his request that is why the final settlement had indicated that we were not in agreement with it, but at his request we were accepting the proposal.

 

            Ilae went over each condition of the LCA personally with Gardner, and read the paragraphs “point by point.”

            After reaching agreement on the terms of Gardner’s conditional reinstatement, Ilae contacted Gardner to advise him that they “had a deal.”  In Ilae’s words, Garnder “was very please.  He was very happy that he was returning to work.”  Ilae sent Garnder a copy by mail of the final document.

            Gardner returned to work.  However, since he had requested in 1999 that he be reduced to part time status, and because he was “on call”, he did not end up working much during his relatively short period of time, before he committed an attendance related violation; his fifth violation since 1993 which resulted in his final termination.

            More specifically, Gardner’s final termination occurred as a result of a particular incident which occurred on (or about) February 15, 2001.  On February 15, 16, and 17, 2001 (Thursday, Friday, and Saturday), Gardner was schedule to work.  Silver was also scheduled to work, but only on Saturday from 5 p.m. to 11:30.  On Friday, February 16, 2001, the Turtle Bay Resort had scheduled a function in the Cove restaurant for a group from Queen’s Medical, beginning at 5:00 p.m.  The bartender would report normally at 3:30 – an hour and a half before the function started – to set up.  That Friday, Hersche started work at approximately 8:00 a.m.  At approximately 12:00 noon, Hersche checked his voice mail, and discovered that Gardner had left a garbled voice mail message.  The message was not clear.  As Hersche testified, the message was: “I’m checking on you.  You’re checking on me.  Looking for John to work for me on Saturday.  Okay, Talk to you later.”  Gardner denied Hersche’s version of the message which was left on the voice mail.  According to the Grievant, he left a message not about anything having to do with coverage, but only regarding bar ordering procedures “Making sure everything was set for the weekend and that, you know, everything was conformed for John to cover the shifts.”  Gardner insists that he was not drinking or on drugs during this call, and did not feel he left a message that was “incoherent” as testified to by Hersche.

            Hersche confirmed that this was the extent of any contact with Gardner on Friday.  Gardner did not call back to speak to Hersche on Friday, either by calling his office directly, or calling his cellular, or calling the operator to have Hersche paged.  Nor did Silver make any calls to Hersche on Friday regarding any agreement to replace Gardner for the function at the Cove beginning at 5:00 p.m.  Gardner testified that he had gone into Honolulu to pursue some personal business.  The call made to Hersche’s voice mail was made from a pay phone.  Gardner claims that the reception on the hpone was not good in “the building.”

            Hersche attempted to reach Gardner by calling him at home and on his cellular phone.  Hersche connected with the voice mail systems on both numbers and left a voice mail for Gardner by indicating “Chris, please call me.”  Gardner did not call Hersche back on that Friday to respond to these voice mail messages which were left.  Gardner denies any voice mails left by Hersche. 

            Gardner did not show up for work as scheduled on Friday, nor did he call Hersche on Saturday to arrange for any change of schedule.  At the last moment, Turtle Bay Resort was able to reach Silver at home to arrange to come in to work for Gardner.

            Upon Gardner’s return to work, Gardner explained to Hersche that there was some confusion in the work schedule.  Hersche, in turn, suggested to Gardner that he meet with human resources.

            That Saturday at approximately midnight, Gardner called the security department to report that he was sick and would be reporting to work.  He contends that his motivation to call in sick was “panic.”  The reason for being “panicked” was that “I just don’t trust him…I did not want him to, you know, twist these three days to his own use…I was scared he would take it and try to make something there that wasn’t.”

            Gardner met with Human Resources on February 20, 2001, four days later.  As a result of no call/no show incident on Friday, February 16, 2001, which was in violation of the LCA dated February 3, 2000, Gardner was terminated effective February 21, 2001.

            On February 3, 2000, Ilae signed and issued to Tani (and Tani later signed) the LCA, which specifically states the following:

***

 

This shall confirm in writing the union’s acceptance of the Employer’s “verbal” final offer of January 28, 2000, and subsequent written offer of December 3, 1999.  (See enclosure).

 

As discussed, and for the record, the Union still maintains their position as proposed on December 20, 1999 (see enclosure (sic).  However, at the request of Mr. Gardner, the union is accepting your proposal as outlined below:

 

1)                  The hotel will reinstate Mr. Gardner with full seniority, with time served as an authorized lave of absence.  The Employer shall notify the Health & Welfare Trust Fund of Mr. Gardner’s (sic) leave status.

 

2)                  The Hotel reserves the right to do random drug testing for the duration of Mr. Gardner’s employment.

 

3)                  Mr. Gardner must be available whenever called in to work.

 

4)                  The next absence/tardy will result in termination.

 

Based on the above agreement, the union request (sic) Mr. Gardner be placed back on scheduled (sic) effective February 6, 2000.

 

***

 

            The instant arbitration is the result of the Turtle Bay Resort having issued to Gardner, a part time function (banquet) bartender, who began his employment with Turtle Bay Resort in 1979, an Employee Conduct and Ability Report (“C & A”), dated February 21, 2001, for a charge of violating his Last Change Agreement dated February 3, 2000 (“LCA”).  On February 3, 2000, the Union, on behalf of Gardner and pursuant to Gardner’s request, entered into an LCA as a result of his serious attendance infractions.  In this Agreement, Gardner, contrary to the Union’s position, requested the Union’s acceptance of Turtle Bay Resort’s LCA proposal.  In particular, the LCA stated as follows:

***

...However, at the request of Mr. Gardner, the union is accepting your proposal as outlined below…

 

***

 

EMPLOYER’S POSITION

            It is the Turtle Bay Resort’s position that Gardner clearly violated the terms of his LCA, noting that:

1.                  There is no room for consideration of any “mitigating circumstances” (even if mitigating circumstances could be found in Gardner’s dissembling and dishonest testimony).  Further, exceptions for “mitigating circumstances” were expressly rejected by Turtle Bay Resort in the negotiations.

2.                  Gardner’s chances ended with his last chance back in February 3, 2000.  He clearly cannot ask for any more chances.

3.                  Gardner’s attendance-related problems stemmed as far back as April 1993.  The result of his violations included oral and written warnings, including three five-day suspensions, capped by a termination for the same attendance (“no show”) offense.

4.                  Gardner got not only a second chance from Turtle Bay Resort, but numerous chances to save his job and avoid termination.

5.                  Gardner’s predictable failure to satisfy the attendance condition resulted in his termination.

6.                  The LCA expressly modified the just cause provisions of the CBA.

7.                  The Union and Gardner agreed to relinquish his rights under the CBA to the terminated only for just cause in exchange for his reinstatement.  Turtle Bay Resort clearly rejected the Union’s attempt to include “mitigating circumstances” as a relevant consideration in assessing the proper penalty for a future violation of the LCA.

8.                  Since the LCA was between the Union and Turtle Bay Resort, the only parties to the CBA, it is technically not necessary that Gardner even agree to the terms of Union agent/representative can negotiate an agreement of the employees, the specific consent.  Moreover, the agreement remains valid under the same principle, even if the employee does not actually sign it.

9.                  Gardner fully accepted the terms of the LCA.

10.              The language used by Ilae in drafting the LCA and accepting the Turtle Bay Resort’s terms makes it very clear that the Union objected to the provisions “at the request of Mr. Gardner.”

11.              Gardner is an admitted liar (when he admitted to lying about being sick on Saturday when he called in to report being sick).

12.              According to Gardner, every witness, besides himself, was lying on some critical point in the case against him.  This accusation serves to expose him as the person who lacks all credibility in this case.

13.              Gardner was fully aware of all the terms to the LCA, and his claims to the contrary must be completely discredited.

14.              Gardner’s “on call status,” coupled with his practice of giving away numerous shifts during this period, must be considered in any calculation of what time period, as implied in the agreement, must be considered reasonable.

15.              Gardner was properly discharged for violating the LCA.

16.              Merely leaving a voice mail message was not allowed under the policy, as Gardner conceded.

17.              Gardner’s claim that he followed all the procedures as required to obtain approval for the swap for all three days not only contradicts the direct testimony of Silver and Hersche, but is also inconsistent with the story given by Gardner to management at the February 20, 2001 investigatory meeting.  It is also inconsistent with the write up of Gardner’s position as prepared by Business Agent Tan, and also inconsistent with Greivant’s testimony that personally contacting Hersche “is not always possible.”

18.              The Turtle Bay Resort offered Gardner his final chance when he was allowed to return conditionally based on the CLA.  Gardner had all the chances he deserved.


UNION’S POSITION

      It is the Union’s position that the “last-chance” agreement was not enforceable under conventional arbitral analysis, nothing that:

  1. The issues in this grievance lie within the meaning and intent of Sections 16, 17 and 18 of the CBA for terminating Gardner pursuant to the Employee Conduct and Ability Report (“C & A”) dated February 21, 2001.
  2. the “last-chance” agreement was not enforceable under conventional arbitral analysis.
  3. A reasonable probationary period had expired by the date of the charged incident.  Under the circumstances, it is not reasonable to hold Gardner to the absence/tardy term where he neither received a copy of the agreement nor was accurately informed of its terms.
  4. Even if the absence/tardy term is enforceable, it was not violated.
  5. There is no “just cause” for Gardner’s termination.
  6. Turtle Bay Resort has failed to satisfy its just cause burden, and the incident was a result of miscommunication between Gardner, a co-worker, and the supervisor.
  7. Gardner’s termination was unjust and unfair and cannot be sustained.
  8. The “last-chance” agreement is unenforceable under its terms because it does not provide a probationary period.
  9. Gardner disputes the allegation in the C & A that he had been aware of, or had agreed to, a “last-chance” agreement in settlement of an earlier grievance.
  10. Even assuming that the “last-chance” agreement was valid, its terms were not violated.
  11. The “last-chance” agreement was not enforceable against Gardner, or in the alternative, that Gardner did not violate the agreement.
  12. The absence/tardy term of the “last-chance” agreement can only be enforced for a one year period.
  13. The “last-chance” agreement is unenforceable under its terms since it does not state a probationary period.
  14. Turtle Bay Resort agreed that Gardner’s attendance record demonstrated improvement during the one year since his reinstatement.
  15. Gardner did not receive a copy of the “last-chance” agreement.  He was neither aware of, nor did he consent to, the terms of the “last-chance” agreement.  The test of a “last-chance” agreement includes an analysis of Gardner’s consent and understanding of its terms.  Where Gardner neither received a copy of the agreement, nor where he had complete understanding of its terms, the agreement is unenforceable against him.
  16. Gardner was not aware that the “next absence/tardy [would] result in termination.”  It was his understanding that he needed to get his “occurrences” in line once he was reinstated to his job on February 6, 2000.
  17. Gardner’s occurrences were in line with Turtle Bay Resort’s attendance policy.
  18. Gardner’s addiction to prescription drugs, which had led to his earlier absence and tardy problems, was under control.  He sought help for his problem, and it is undisputed that he had completed and continues to participate in the Narcotics’ Anonymous program.
  19. The Turtle Bay Resort should have acknowledged compliance with the attendance policy.
  20. There was no claim that Gardner was given fewer shift assignments.
  21. The failure of Turtle Bay resort and the Union to communicate the absence/tardy term of the “last-chance” agreement to Gardner renders it unenforceable.
  22. The February 16, 2001 incident was not charged as an absence or tardy.  Gardner was charged with No Call/No Show.  Turtle Bay Resort’s policy concerning absences and tardies is distinct from a “No Call/No Show” policy.  A violation of each specific policy results in a different range of disciplinary action.  Since Gardner was charged with a No Call/No Show, the “last-chance” agreement was not violated.
  23. Gardner’s termination must be evaluated under conventional “just cause” analysis.
  24. Gardner’s absence from work on February 16, 2001 was due to a simple misunderstanding over the dates that a co-worker would cover his shift, and, therefore, the termination lacks “just cause.”
  25. The C & A contains false and inaccurate information.
  26. Turtle Bay Resort lacks sufficient proof to sustain a termination, and fails on the proper charge requirement and proof of misconduct charged.
  27. Gardner’s record does not justify termination.

STANDARD: LAST CHANCE AGREEMENT

            In this matter, pursuant to the body of decisions governing the interpretation of LCA’s, the Turtle Bay Resort must show that Gardner failed to comply with the LCA dated February 3, 2000.

            The Common Law of the Workplace discusses Last Chance Agreements as follows:

            Last Chance Agreements

            An arbitrator must abide by the terms of a last-chance agreement fairly negotiated between an employer, an employee, and (where applicable) the union representing the employee.

 

a.                  Occasionally parties may settle a disciplinary grievance with a “last-chance” agreement.  These agreements vary in terms but usually grant the employer discretion to discharge the employee for any subsequent offense (sometimes for a subsequent similar offense) and commonly state or imply that the usual procedural protections will not apply.

 

***

 

b.                  Preclusive Effect.  Depending on its exact phrasing, the last-chance agreement may definitively resolve the question of whether a given offense provides a legitimate basis for discharge.  Such an agreement may bar an arbitrator from imposing a further requirement of proportionality or progressivity, but it normally would not bar inquiry into the question of whether the employee committed the final offense charged by the employer.

 

c.                  Relationship to the “Just Cause” Requirement.  Depending on its wording, the agreement may or may not replace the just cause requirement.  Because the just cause requirement is so fundamental, an arbitrator should not, without express language, presume the parties intended to abandon it.  If the agreement does replace the just cause requirement, the arbitrator’s authority may be limited to interpreting the last-chance agreement itself and determining whether the employee actually violated that agreement.

 

d.                  Necessary Parties.  In a unionized workplace, no employee may enter into an agreement that conflicts with the collective bargaining agreement.  The union, however, is generally free to modify the collective bargaining agreement, even in the context of a last-chance agreement affecting a single employee.  If the last-chance agreement conflicts with the collective agreement, the union must be a party to it before it will be binding.

 

e.                  Duration.  A well-drafted last-chance agreement will specify an expiration date, after which the employee will be subject to the same disciplinary rules and procedures applicable to other employees.  If the agreement does not state how long it lasts an arbitrator should find that the parties intended it to last a “reasonable” time, depending on the nature of the offense, the parties’ practices, and other relevant factors.

 

T. St. Antoine, The Common Law of the Workplace, Section 6.3 (1998).

 

Just Cause: The Seven Tests has the following discussion of Last Chance Agreements.

 

Last Chance Agreements

 

A special kind of last-straw situation occurs when the employee has been put on notice that one more violation of company rules-perhaps of the same rule he or she previously violated, perhaps of any company rule-will be curtains.  In other words, the employee has been told in advance that further misconduct will be regarded as the “last straw” and has acknowledged that this will be the case.  Such a “last chance” agreement often is the result of a settlement negotiated by the union on behalf of a grievant whose misconduct clearly warranted discharge.

 

Arbitrators have held that last-chance agreements, as a general rule, are not subject to the usual requirements of just cause.  To put it another way, violation of the last-chance agreement provides the “just cause” required for discharge.  Arbitrator Jonathan Dworkin has explained: “[J]ust cause is not essential to the formation of a [an agreement].  A company and union could negotiate to eliminate the benefit…A union also can enter into a last-chance bargain relieving an employer of some or all of its just-cause obligations to an employee.”  He continued:

 

28. When encountering a last-chance settlement, an arbitrator can presume its validity even though it places the subject employee at a distinct disadvantage.  It should be inferred that the settlement was negotiated in good faith to grant the employee something s/he could not otherwise achieve – continued employment.  The arbitrator should recognize that there was a trade-off for the advantage – relinquishment of certain employment rights…An employer would have no reason to enter into them if they were illusory or unenforceable.

 


ARBITRATOR’S ANALYSIS

 

1.                  Did Gardner fail to comply with the last Chance Agreement (“LCA”) dated February 3, 2000?

 

2.                  If the termination of Gardner was a violation of the LCA, what is the remedy?

 

 

After review of the record, including testimony, exhibits, and prior arbitration decisions cited, the record evidences that Gardner has a history of failing to be regular in attendance and, as a result, he has been progressively disciplined.  His record consists of three five-day suspensions for violating Turtle bay Resort’s attendance policy, and a termination for the same attendance (“no show”) offense.

The LCA, signed by Ilae and Tani on February 3, 2000, states, in relevant art, as follows:

 

***

This shall confirm in writing the union’s acceptance of the Employer’s “verbal” final offer of January 28, 2000, and subsequent written offer of December 3, 1999.  (See enclosure).

 

As discussed, and for the record, the Union still maintains their position as proposed on December 20, 1999 (see enclosure).  However, at the request of Mr. Gardner, the union is accepting your proposal as outlined below:

 

1)                  The hotel will reinstate Mr. Gardner with full seniority, with time served as an authorized leave of absence.  The Employer shall notify the Health & Welfare Trust Fund of Mr. Gardner’s leave status.

 

2)                  The Hotel reserves the right to do random drug testing for the duration of Mr. Gardner’s employment.

 

3)                  Mr. Gardner must be available whenever called in to work.

 

4)                  The next absence/tardy will result in termination.

 

Based on the above agreement, the union request Mr. Gardner be placed back on scheduled effective February 6, 2000.

 

***

 

            Based on the record and testimony, the Arbitrator finds that Gardner continually and habitually abused Turtle Bay Resort’s attendance policies, and that Turtle Bay Resort issued to him not one, but in fact three five-day suspensions for attendance-related problems.

            Upon review of the LCA in connection with the Union’s arguments, the Arbitrator notes that Ilae, an official business representative of the Union, on behalf of Gardner, signed the LCA dated February 3, 2000, agreeing to abide by the LCA.  Specifically, Ilae, on behalf of Gardner, affirmed the following:

***

“As discussed, and for the record, the Union still maintains their position as proposed on December 20, 1999, (see enclosure).  However, at the request of Gardner, the union is accepting your proposal as outlined below.

 

***

 

            This establishes there was no claim by Gardner and/or the Union that Gardner was unable to comprehend the LCA due to any disability prior to his removal for violating the LCA in this matter.

            Moreover, the Union, on behalf of Gardner (and more importantly, at the request of Gardner), accepted the Turtle Bay Resort’s position as outlined in the LCA dated February 3, 2000.

            Given the aforesaid, the Arbitrator finds no compelling evidence to establish that the Union nor Gardner did not understand the terms of the LCA or the consequences of his absenteeism pattern.  Furthermore, Gardner was clearly in violation of the Turtle Bay Resort’s Sick Leave Policy when he was scheduled to report to work on Friday, February 16, 2001, and failed to call or show up for his scheduled work shift.  His failure to do so resulted in loss of guest services as well as potential loss of revenue for Turtle Bay Resort.

            The Arbitrator does not find that Turtle Bay Resort withheld assistance to Gardner or that Gardner or the Union, on behalf of Gardner, ever requested assistance in order to effectuate communication and understanding relative to this matter.  The Arbitrator finds in this instance that Turtle Bay Resort was in substantial compliance with the subject LCA.

            The Union argues that the Turtle Bay Resort should reinstate Gardner retroactive to February 21, 2001, and make whole for all lost wages, hours, and seniority fringe benefits since Gardner can only be terminated for “just cause”.

            It is clear that the LCA expressly modified the just cause provisions of the CBA. In the instant case, the Union and Gardner agreed to relinquish his rights under the CBA to be terminated only for just cause in exchange for reinstatement.  Gardner breached the terms of the LCA, and therefore can be terminated for having done so.

            The Union emphatically argues, in support of its contention, that the LCA is not enforceable according to its terms.  Further, the Union contends that Gardner cannot be bound by the terms of the last chance agreement, based on his testimony that he never agreed to all the conditions, especially the condition of “any absence will result in termination,” and because he did not sign the final version.

            The Arbitrator credits Turtle Bay Resort’s and Ilae’s testimony that Gardner fully accepted the terms of the LCA.  Since the LCA was between the Union and Turtle Bay Resort, the only parties to the CBA, it is technically not necessary that Gardner even agree to the terms of the grievance settlement.  As the official business agent/representative of the employees, the Union can negotiate an agreement without the employee’s specific consent.  Moreover, the agreement remains valid under the same principle, even if the employee does not actually sign it.

            In the instant case, the language used by Ilae in drafting the LCA and accepting the Turtle Bay Resort’s terms makes it crystal clear that although the Union objected to Turtle Bay Resort’s provisions, it accepted those provisions at the request of Gardner.  As such, the Arbitrator has no reason to believe that the Union would represent such a statement without Gardner’s request and/or approval, especially due to the fact that the Union was against Turtle Bay Resort’s outlined proposal from the outset.

            The Union argues that the LCA is invalid because Turtle Bay Resort failed to include a duration term in the LCA.  The evidence revealed that in the bi-lateral negotiations over the grievance settlement, the Union attempted to include a six-month time limitation provision.  Turtle Bay Resort, however, specifically rejected any duration, in its provision.  Ultimately, Gardner requested that the Union, on his behalf, accept Turtle Bay Resort’s provision specifically rejecting any duration term.

            Even under an implied provision at a reasonable duration of the condition, the Arbitrator finds the time period in which Gardner failed to follow the LCA is within reason, and Gardner’s violations still justified his termination.

            Accordingly, the Arbitrator finds that the LCA is controlling in this matter, and the undisputed evidence establishes that Gardner violated the LCA, and therefore is subject to the penalty of removal as set forth in the LCA.

CONCLUSION

            The Turtle Bay Resort’s policy on excessive absenteeism is clear.  The testimony at the arbitration hearing, as well as the evidence, showed that Gardner had previously been counseled orally and in writing, suspended five times since 1993 for attendance-related violations, and terminated once for his excessive absenteeism.  In the instant case, Gardner’s excessive absenteeism was a serious burden for the Turtle Bay Resort.

            Gardner’s position as a function (banquet) bartender was important to guest services and revenue, both of which are tremendous contributing factors to the success of Turtle Bay Resort’s business.  The Turtle Bay Resort requires all of its employees to report to work as scheduled in order to maintain its quality service to its valued guests.

            Even without regard to Turtle Bay Resort’s testimony and exhibits presented at the hearing regarding Gardner’s past violations and disciplinary record (i.e., unrelated to his excessive absenteeism, including the lie he later testified and admitted to about calling in sick because he was in “panic”), the Arbitrator specifically finds that the nature of the offense was so burdensome and serious, that termination was suitable discipline for the offense, regardless of Gardner’s length of employment with Turtle Bay Resort.

            Excessive absenteeism should not be tolerated in the workplace, as any employer can expect its employees to report to work on a regular basis for the success of a business operation.  The testimony at the arbitration hearing made it clear that Gardner was absent excessively, and that his absenteeism and unreliability are business liabilities that the Turtle Bay Resort should not have to continue to assume. 

            Further, Gardner violated the express terms of the final last chance agreement he agreed to.

DECISION AND AWARD

            Based upon the foregoing, the Arbitrator finds that the termination of Gardner was for violating the LCA and that Gardner failed to comply with the Last Chance Agreement dated February 3, 2000.  The grievance therefore is denied, and the termination is sustained.

            DATED:  Honolulu, Hawaii, _______________, 2001.

                                                                                                                                               

___________________________
MICHAEL F. NAUYOKAS
Arbitrator

                                                                       

STATE OF HAWAII                                      )                      
                                                                       )           SS
CITY AND COUNTY OF HONOLULU     
)

           

            On this _____ day of __________, 2001, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.

___________________________________
Notary Public, State of Hawaii
My Commission expires: _______________

 

  

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