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Title: Hyatt Regency Waikiki and Hotel Employees & Restaurant Employees , Local 5, A.F.L.-C.I.O
Date: August 30 & 31, 2001
Arbitrator: 
Michael Nauyokas
Citation: 2001 NAC 152

 

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

 HYATT REGENCY WAIKIKI,

                                    Employer,

_________________________________________________________________________  

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          Grievance of RICKY DAVIS
                                           

                                          
         
Arbitration Date:          
         

          Date: August 30 & 31, 2001
          Time: 10:00 a.m. & 9:00 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/

 

 

IN THE MATTER OF THE ARBITRATION BETWEEN HOTEL EMPLOYEES

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

HYATT REGENCY WAIKIKI: THE GRIEVANCE OF RICKY DAVIS

 

            This matter came on to arbitration at a hearings held on August 30 & 31, 2001.  The Hotel Employees & Restaurant Employees, Local 5 A.F.L.-C.I.O. (“Union”) and the Grievant, Ricky Davis, were represented by Barry S. Jellison, Esq., and the Hyatt Regency Waikiki (“Hyatt’) was represented by Jerry M. Hiatt, Esq.  The Arbitrator made a full disclosure of all potential bases for conflict, and any such conflicts were specifically waived by the parties to the arbitration through their representatives.  The parties stipulated to procedural and substantive arbitrability of the controversy and to the fact that the arbitration was properly set following the grievance procedure outlined in the Collective Bargaining Agreement (“CBA”) between the Employer and the Union effective March 1, 1995 through and including February 29, 2000.  pursuant to the Stipulation, the terms of the CBA govern this subject (Joint Exhibit 1).  The arbitration was conducted pursuant to Section 18 of the CBA (“Grievance and Arbitration Procedure”).  The parties were fully and fairly represented at the hearing.  Pursuant to the stipulation of parties, the issues presented to the Arbitrator are:

 

1.                  Was the suspension and termination of Ricky Davis a violation of the CBA?

2.                  If the termination of Ricky Davis was a violation of the CBA, what is the remedy?


 

FACTUAL BACKGROUND

            Hyatt is a hotel operation which provides hotel and restaurant services in the State of Hawaii and has sister hotel operations throughout the world.  The grievant, Ricky Davis (“Davis”), was hired by Hyatt in April 1977, and had been a maintenance person in the Hyatt’s engineering department since February 1984.

            On February 14, 1986, Davis was suspended for five days and lost his sick leave benefits for one year for falsifying a sick leave verification, a violation of house rule #31 (Employer’s Exhibit 3).

            On February 26, 1988, Davis was again suspended for five days for excessive absenteeism (Employer’s Exhibit 4).

            On December 4, 1997 and May 6, 1998, Davis called in sick, and accepted sick leave pay for those two days.  After receiving a written warning for excessive absenteeism on June 25, 1998 (Employer’s Exhibit 5), Davis claimed that he had not been sick, but rather taken a leave of absence on those two days due to his mother’s illness (Employer’s Exhibit 6).  Thereafter, Hyatt required Davis to obtain a physician’s certification for sick leave of any duration, as Hyatt noticed that Davis’ absences had taken on a pattern (i.e., Davis tended to call in sick on days before and after his scheduled days off) (Employer’s Exhibit 9).

            On March 24, 1999, Davis’ wife called in sick for him.  On March 29, 1999, Davis wrote an e-mail to Nancy Ramos, then Assistant Director of Human Resources for Hyatt (“Ramos”), in which he admitted that in fact he was not sick on March 24, 1999, but rather had taken a day off to meet with a realtor concerning the purchase of a condominium (Employer’s Exhibit 7).  Davis’ belated request for “emergency vacation” was denied, and he received a verbal warning (Employer’s Exhibit 8 and 9).

            In addition to Davis’ (alleged) excessive absenteeism and abuse of sick leave, Davis received counseling for a safety violation on February 26, 1998; counseling for unacceptable work progress on January 7, 1999; counseling for poor work performance on April 22, 1999; a five-day suspension for poor performance, incomplete work, and an OSHA violation on March 27, 2000; and counseling for his loss of assigned work tools on April 25, 2000 (Employer’s Exhibits 11-15).

            On the morning of September 13, 2000, Davis called in sick again and spoke to Hyatt’s security officer, Revese Jeremiah (“Jeremiah”).  Davis told Heremiah that he wasn’t feeling well and would not report for his 8 a.m. to 4 p.m. shift.  Jeremiah relayed the message to Gabriel Canencia (“Canencia”) in the engineering department.  Canencia then sent an e-mail to Victor Robles, Assistant Director of Engineering, advising him that Davis had called in sick (Employer’s Exhibit 16).

            Davis’ absences on September 13, 2000 was his seventh in a period dating back 12 months (Employer’s Exhibit 17).  Davis had exhausted his sick leave benefits back in may 2000, and would not receive new allotment until his next anniversary date, on September 15, 2000.  Several days later, Davis called Karen Taira, Benefits Manager for Hyatt (“Taira”), and requested emergency vacation pay for the shift he failed to work on September 13, 2000.  Davis’ reason for taking the day off on September 13, 2000 was a family emergency and he was thus entitled to leave under the Family Medical Leave Act (“FMLA”).

 

            Since the belated vacation/FMLA request was inconsistent with Davis’ prior representation that he had taken September 13, 2000 off because he was sick, Hyatt denied the emergency vacation request.  In addition, Davis received a verbal warning for excessive absenteeism (Employer’s Exhibit 18).

            Eight days later, Davis called in sick again. His absence on September 21, 2001 triggered a written warning for excessive absenteeism on September 28, 2000 (Employer’s Exhibit 19).  Thereafter, Davis missed work again on October 31, 2000 and November 1, 2000.

            Davis’ absences totaled seven or more in a 12-month period.  Because Hyatt had already administered verbal and written warnings to Davis regarding his excessive absenteeism, it imposed a five-day suspension on Davis (Employer’s Exhibit 20).

            On February 5, 2001, Davis called in sick once more, an action which brought his total to seven or more absences in a 12-month period.

            Hyatt issued Davis an Employee Problem/Solution Notice (“Notice”), dated February 20, 2001, terminating his employment effective immediately.  The Notice, in summary, outlined Davis’ offenses, and included the progressive discipline steps taken in Hyatt.  In particular, the Notice stated that Davis’ conduct of excessive absenteeism constituted a violation of House Rules regarding Hyatt’s policy on excessive absenteeism #13 and exhibit 3 of the CBA (Employer’s Exhibit 21).

            Hyatt’s House Rule Policy #13 and Exhibit 3 of the CBA on employee absenteeism specifically state as follows:

 

 

POLICY ON EMPLOYEE ABSENTEEISM

The hotel has set guidelines pertaining to reported absences and has established criteria on what is considered excessive absenteeism.  More than six (6) separate absences within the most recent 12-month period is excessive.  (Absences are defined as failure to report to work due to illness or injuries and/or any unexcused failure to report to work, except in situations as stated below.)

 

The twelve (120 month period is a rolling twelve months in which the month with the most recent absence serves as the starting point.  For example: If the most recent absence occurs in August, you would go back twelve (12) months using August as the first month.  You would be reviewing the period of August in the current year, through September of the previous year.  More than six (6) separate absences within this period would constitute excessive absenteeism.

 

Absences of the following nature are not included in the total:

 

1)                  Tardiness

2)                  Maternity Leave

3)                  Funeral Leave

4)                  Jury Duty

5)                  Leave of Absence for Union Business

6)                  Personal Leave

7)                  Leave for Extended Trips

8)                  Military Leave

9)                  Any other leave which is provided at the discretion of the Employer

10)              Workers Compensation Leave

11)              Absence due to injury and/or illness requiring ongoing care such as chemotherapy, dialysis or other required therapy.

 

The following steps of progressive discipline may be administered to employees that fall into the category of excessive absenteeism.

 

 

 

 

·                    Verbal Warning with counseling

·                    Written Warning with counseling

·                    Suspension; or where appropriate medical leave of absence without pay to participate in the hotel sponsored Employee Assistance Program

·                    Termination

 

All employees shall be informed, not to exceed once a month, as to their absentee status.

 

(Emphasis added).

(Employer’s Exhibit 1; Joint Exhibit 1)

 

EMPLOYER’S POSITION

            The Employer’s position is that it has met its burden of showing just cause by a preponderance of the evidence in Davis’ termination, arguing that:

1.                  Hyatt’s suspension and termination of Davis were not capricious or unreasonable.  Rather, they were preceded by months, and even years, of good faith attempts by Hyatt to correct Davis’ attendance problems.

2.            Hyatt did not judge Davis’ absenteeism by a standard of its own choosing, but rather applied the standard prescribed in the CBA (Joint Exhibit 1).

3.                  Exhibit 3 of the CGBA (Employer’s Exhibit 1) and Hyatt’s policy on excessive absenteeism (Employer’s Exhibit 2) are clear and unambiguous.

4.                  The steps taken by Hyatt were the very model of progressive discipline, including as they did verbal and written warnings before resort to suspension and termination.

5.                  Davis was in violation of Hyatt’s Policy On Employee Absenteeism (Employer’s Exhibit 1) and subject to discharge pursuant to the CBA, Exhibit 3 (Joint Exhibit 1).

6.                  Davis had received the rules of the Employer via the Employee Handbook and Hyatt Policies for which he had signed a receipt on November 24, 1992 (Employer’s Exhibit 22).  The Handbook contained the Employer’s prohibition against excessive absenteeism.

7.                  Prior to the incident that resulted in his termination on February 20, 2001, Davis had demonstrated a chronic tendency to violate the Employer’s work rules, which resulted in numerous disciplinary actions taken against him as follows:

11/06/00      5-day suspension excessive absenteeism

10/30/00 Counseling-failure to comply with Maintenance Work Order Policy

09/22/00 Written warning-excessive absenteeism

09/19/00 Verbal warning-excessive absenteeism

04/25/00 Counseling-lost assigned tool for work (Dolphin pouch)

03/27/00 5-day suspension poor work performance, incomplete work, OSHA violation

04/22/99 Counseling-poor work performance

04/01/99 Wife called in sick-later claimed not sick and requested vacation pay

01/07/99 Counseling-unacceptable work progress

06/26/98 Falsely accepts sick pay-claims sick days were leaves of absences and keeps sick pay

02/26/98 Counseling-failure to wear safety glasses

02/26/88 5-day suspension-excessive absenteeism

02/14/86 5-day suspension-falsifying sick verification

 

(Employer’s Exhibit 21).

 

8.                  Consistent with the CBA and the principle of progressive discipline, Davis was counseled and received verbal and written warnings before being suspended, as he repeatedly violated Hyatt’s excessive absenteeism policy.

9.                  Davis was given repeated opportunities to correct his behavior.  He did not correct this behavior, and Hyatt was left with no viable option other than termination.

10.              Davis does not dispute that he was absent on the days alleged by Hyatt, nor does he deny that he called in sick on those days.

11.              Hyatt’s absenteeism policy is consistent with the provisions of the CBA.

12.              Hyatt has established that it terminated Davis pursuant to a clearly established policy that is consistent with the CBA.

13.              Davis had violated Hyatt’s absenteeism policy, and was terminated only after numerous attempts at progressive discipline.

14.              Hyatt does not need to rely on anything other than Davis’ six absences in the 12-month period preceding September 13, 2000, together with the absences of September 13, September 21 and October 31, 2000, and February 5, 2001 and the verbal and written warnings and suspension, issued in connection therewith, to support Davis’ termination.

15.              Hyatt has shown that it has a policy on excessive absenteeism, that the policy is reasonable and consistent with the CBA, that it employer progressive discipline in dealing with Davis’ violations of that policy, and that Hyatt terminated Davis only after his repeated violations.

16.              Davis has offered little in the way of defense of his record of absenteeism.  At beset, he pleads ignorance of Hyatt’s policy and the relevant provisions of the CBA.

17.              Hyatt followed each of the disciplinary steps out by Exhibit 3 o the CBA (Joint Exhibit 1).  Davis received repeated warnings and counseling over the years.

18.              Hyatt had clearly communicated its policy on excessive absenteeism, and consistently exercised such a policy in the past.  Davis’ excessive absenteeism was clearly a violation as laid out in Hyatt’s policies for employees, and the termination was clearly warranted under the existing policy, particularly in light of Davis’ past history of discipline with Hyatt.

19.              The offense is sufficiently serious enough to warrant summary termination, irrespective of Davis’ previous work history.

20.              When Davis failed to heed the verbal and written warnings given by Hyatt, it was left with no choice but to impose a suspension and, as a last resort, termination.

21.              Davis’ intransigence is compounded by his repeated acts of dishonesty.

22.              The Employer had just cause to terminate Davis for violating the well-established policy regarding excessive absenteeism.

 

UNION’S POSITION

            It is the Union’s position that the Employer has failed to meet the burden of proof required to sustain termination of Davis for just cause, noting that:

1.                  Hyatt has not meet it’s burden of proof that I had just cause to terminate Davis.

2.                  The only issue in determining whether there was just cause to suspend and to terminate Davis relates to the Hyatt’s absenteeism policy.

3.                  Under the clear and unambiguous terms of Hyatt’s attendance policy, Davis should not have received any discipline more severe than written warning.

4.                  Any ambiguities in the policy must be construed against Hyatt.

5.                  Hyatt’s policy cannot support the discharge of Davis.

6.                  Hyatt did not adequately inform the Union, the employees and Davis of its interpretation and application of the policy and of the consequences for violating that policy.

7.                  Hyatt did not conduct a full and fair investigation.

8.                  Hyatt did not engage in progressive discipline.

9.                  The September 13, 2000 incident should have been an excused absence.

10.              Hyatt cannot rely on the March 20, 2000 incident as a valid suspension.

11.              The management rights clause does not trump the just clause.

12.              The Tsukiyama case does not establish that there is just cause for termination of Davis.

13.              Any arguments by Hyatt relying in prior discipline and stale evidence must be rejected.

14.              Hyatt’s arguments by Hyatt relying on prior discipline and stale evidence must be rejected.

15.              The union is not estopped from contesting the validity of the verbal and written warnings.

Finally, the Union argues that there was no just cause for the suspension and the for the termination of Davis.  Additionally, the Union requests that Davis be reinstated to his former position with full seniority, full back pay and all other contract rights such as health and welfare and pension contributions to make Davis whole for his unjust suspension and for his unjust termination.

 

 

ESTABLISHING JUST AND PROPER CAUSE

            In this matter, pursuant to the CBA and the body of decisions governing the interpretation of just cause, Hyatt must show, by a preponderance of the evidence, that just and proper cause existed for Davis’ termination by Hyatt.  In order to satisfy this standard, Hyatt must meet the following test required to show just cause for suspension and termination.

1.                  The employee was forewarned of the consequence of his or her actions.

2.                  The Employer’s rules are reasonably related to business efficiency and the performance the Employer might expect from an employee.

3.                  An effort was made before discharge to determine whether the employee was guilty as charged.

4.                  The investigation was conducted fairly and objectively.

5.                  Substantial evidence of the employee’s guilt was obtained.

6.                  The rule was applied fairly and without discrimination.

7.                  The degree of discipline was reasonably related to the seriousness of the employee’s offense and the employee’s past record.

 

Enterprise Wire Co., 46 Lab. Arb. (BNA) 359, 362-65 (1966) (C. Daugherty, Arb.); State of Hawaii, 109 Lab. Arb. (BNA) 289, 291 (7/11/97) (Nauyokas, Arb.); State of Hawaii, (7/27/97) (Nauyokas, Arb.); UFCW Union Local 480 AFL-CIO vs. Safeway, (10/30/98) (Nauyokas, Arb.); IAM and Aloha Airlines, (8/23/99) (Nauyokas, Arb.); see also Ogden, 111 Lab. Arb. (BNA) 251, 253 (8/31/99) (Nauyokas, Arb.).

 

 

 

 

 

 

ANALYSIS

 

Issue No. 1:  Was Davis forewarned of the consequences of his actions?

           

            The testimony, and the exhibits produced at the arbitration hearing, clearly demonstrated that Davis had acknowledged receipt of the Handbook promulgated by Hyatt (Employer’s Exhibit 22).  The Handbook clearly states on page 166, Exhibit “3.” Policy On Employee Absenteeism:

POLICY ON EMPLOYEE ABSENTEEISM

The hotel has set guidelines pertaining to reported absences and has established criteria on what is considered excessive absenteeism.  More than six (6) separate absences within the most recent 12-month period is excessive.  (Absences are defined as failure to report to work due to illness or injuries and/or any unexcused failure to report to work, except in situations as stated below.)

 

The twelve (12)month period is a rolling twelve months in which the month with the most recent absence serves as the starting point.  For example:  If the most recent absence occurs in August, you would go back twelve (12) months using August as the first month.  You would be reviewing the period of August in the current year, through September of the previous year.  More than six (6) separate absences within this period would constitute excessive absenteeism.

 

Absences of the following nature are not included in the total:

 

1)                  Tardiness

2)                  Maternity Leave

3)                  Funeral Leave

4)                  Jury Duty

5)                  Leave of Absence for Union Business

6)                  Personal Leave

7)                  Leave for Extended Trips

8)                  Military Leave

9)                  Any other leave which is provided at the discretion of the Employer

10)              Workers Compensation Leave

11)              Absence due to injury and/or illness requiring ongoing care such as chemotherapy, dialysis or other required therapy.

 

The following steps of progressive discipline may be administered to employees that fall into the category of excessive absenteeism:

 

·                    Verbal Warning with counseling

·                    Written Warning with counseling

·                    Suspension; or where appropriate medical leave of absence without pay to participate in the hotel sponsored Employee Assistance Program

 

All employees shall be informed, not to exceed once a month, as to their absentee status.

 

(Emphasis added).


(Employer’s Exhibit 1; Joint Exhibit 1)

 

            Additionally, Hyatt issued Davis another attendance policy entitled “HY-

 

Expectations from You” which specifically states:

 

                        ….Attendance

 

The success and smooth running of our operation depends, to a great extent, on you being at work when scheduled.  If you are absent or even late in reporting to work, you place a burden on your fellow employees…

 

Attendance is monitored and employees whose absences are excessive (7 within a current 12 month period) will be dealt with in accordance with our absenteeism policy.

 

(Emphasis added).

 

(Employer’s Exhibit 2).

 

            Davis received repeated verbal/written warnings and counselings from Hyatt which he failed to heed.  As such, he was surely aware of Hyatt’s attendance and absenteeism policies.  Additionally, it is unquestionable that Davis received notice of the policy, as he signed a written acknowledged that he had read and understood Hyatt’s policies, including its absenteeism policy (Employer’s Exhibit 22).

            Given these circumstances, the Arbitrator finds that Davis was or should have been aware of the fact that his excessive absenteeism would result in his suspension and the termination of his employment.  Moreover, Davis had previously warned (i.e., verbally and in writing) and also suspended for violating Hyatt’s policy on excessive absenteeism.

Issue No. 2:  Was Hyatt’s rule reasonably related to business efficiency and the performance that Hyatt might expect from an employee?

 

            In this arbitrator’s analysis, the nature of the rule against excessive absenteeism is, per se, a reasonable rule.  Clearly, it is reasonable that an Employer insist on reasonably regular attendance by its employees, even if the absences are for legitimate reasons.  In the instant case, there is no dispute that Hyatt’s requirement that an employee have no more than seven absences in a 12-month period is a reasonable policy.  The Union stipulated to as much by accepting Exhibit 3 of the CBA (Joint Exhibit 1).  Taira’s testimony also supported the reasonableness of the rule against excessive absenteeism.

Issue No. 3:  Was an effort made prior to the discharge of Davis to determine whether or not he was guilty of the offense charged?

 

            A full investigation was performed by Hyatt prior to the discharge of Davis’ employment as evidenced in Hyatt’s conclusive summary of its reasons for terminating Davis (Employer’s Exhibit 21) as well as Taira’s testimony.  Hyatt’s Benefits Manager, Taira, played the role of an unbiased, fact-finding investigator who was given the task of making a final determination as to whether Davis abused Hyatt’s absenteeism policy.  Additionally, other investigatory measures were taken by Hyatt in order for Hyatt to make a sound determination as to whether Davis was guilty of the offense charged (See Employer’s Exhibits 3, 4, 6, 7, 8, 9, 16, 17, 18, 19, 20, and 23-28).

            It is clear that Davis had the benefit of representation by his Union, and an opportunity to be advised as to specifically what charges were brought against him and to respond to such charges.  Therefore, the Arbitrator specifically finds that Hyatt made an effort to determine whether or not Davis was guilty of the offense charged, including Taira’s extensive investigatory measures, and that Davis had the opportunity to receive the process that was due under the CBA (Joint Exhibit 1).

Issue No. 4:  Was the investigation of the incident conducted fairly and objectively?

            As noted in the analysis of issue No. 3, Hyatt performed a complete investigation.  Davis had the opportunity to consult with his Union representative to be advised as to specifically what charges were brought against him with respect to his verbal/written warnings and suspensions, to respond to such charges, and he had the opportunity to state his case.  Essentially, the investigatory steps were taken by Hyatt to determine whether or not Davis violated the rules cited as cause for discipline.  In reviewing the evidence in the light most favorable to Davis, it appears that the investigation was conducted fairly and objectively.

Issue No. 5:  Was substantial evidence of Davis’ guilt obtained?

            In reviewing the exhibits and the testimony of witnesses given at the arbitration hearing, including the testimony of Davis, it is apparent that Davis did abuse Hyatt’s absenteeism policy.  The record is clear as to Davis’ contradictory statements in which he initially calls in sick, then later attributes his absence to his wife’s illness in order to benefit his work absence record.  The Arbitrator finds Davis’ testimony on this point to be incredible or uncorroborated, particularly due to Davis’ wife’s physician’s (Dr. Lee’s) testimony that he did not see Ms. Davis on September 13, 2000, and that he had no idea what her condition was on that day (TR at 158:1-159:2).  Additionally, the Arbitrator finds Hyatt’s testimony credible on this point.  In the Arbitrator’s view, Davis had numerous opportunities to correct his absenteeism problem.  Davis did not correct his problem.  Instead, he continued to abuse Hyatt’s absenteeism policy.  Therefore, the Arbitrator finds that Hyatt did obtain substantial evidence of Davis’ guilt (i.e., excessive absenteeism) prior to his termination, and that there was insufficient evidence by Davis to justify his abuse of Hyatt’s absenteeism policy.

Issue No. 6:  Was the rule applied fairly and without discrimination?

            In reviewing the circumstances, the testimony, the evidence, and the demeanor of the participants in the incidents, the Arbitrator finds that Hyatt applied its rules and penalties pertaining to excessive absenteeism fairly and without discrimination to its employees.  Hyatt produced sufficient evidence that it did not subject Davis to disparate treatment, and that its absenteeism policy had been consistently applied in other situations.  No issue has been raised as to unequal treatment.

            Moreover, Hyatt’s absenteeism policy has been upheld by other arbitrators, including two prior cases involving the same Union as in the instant case (See HERE Local 5 v. Hyatt Regency Waikiki (Re: Discharge of Louis Souza) (Angelo, May 18, 1995) (“Souza”).  (See HERE Local 5 v. Hyatt Regency Waikiki (Re: Discharge of

 

Geraldine K. Bolosan) (Gilson, February 2, 1989).1  In these two cases, Hyatt took necessary action to enforce its policy.  Therefore, the Arbitrator finds that the rule in this instance was applied fairly and without discrimination.  In Souza, the absence was the seventh for the employee in a 12-month period, and Hyatt terminated the employee on that basis, as in the instant case.

            Hyatt presented evidence and arbitration decisions which proved that it consistently applied its excessive absenteeism policy.  Neither Davis nor the Union presented any evidence of disparate treatment.

Issue No. 7:  Was the degree of discipline reasonably related to the seriousness of the offense and Davis’ past record with Hyatt?

 

            Hyatt’s policy on excessive absenteeism is clear.  The testimony at the arbitration hearing, as well as the evidence, showed that Davis had previously been counseled orally and in writing, suspended more than once, and eventually terminated for his excessive absenteeism.  In the instant case, Davis’ excessive absenteeism was a serious burden for Hyatt.

            Even without regard to Hyatt’s testimony and exhibits presented at the hearing regarding Davis’ past disciplinary record (i.e., unrelated to his excessive absenteeism), the Arbitrator specifically finds that the nature of the offense was so burdensome and serious, that suspension and then termination were suitable discipline for the offenses, regardless of Davis’ length of employment with Hyatt.

                                                           

                1Despite the Union’s argument against the reliance of the two unpublished decisions regarding Souza and Bolosan (both where the Union was also a party), the Union had ample resources to obtain these two cases cited and relied upon by Hyatt.

 

 

 

 

Quite simply, 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 Davis was absent excessively, and that his absenteeism and unreliability are business liabilities that Hyatt should not have to continue to assume.

 

DECISION AND AWARD

            Based upon the foregoing, the Arbitrator finds that the suspension and termination of Davis was for just cause and did not violate the Collective Bargaining Agreement.  The grievance therefore is denied and the suspension and termination are sustained as being for just cause.

                        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: _______________