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Title: Sheraton Waikiki Hotel and Hotel Employees and Restaurant Employees Local 5
Date: 2003
Arbitrator: 
Michael Nauyokas
Citation: 2003 NAC 127

 

BEFORE ARBITRATOR MICHAEL F. NAUYOKAS

STATE OF HAWAII

In the Matter of the Arbitration Between 

HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES LOCAL 5, AFL-CIO,

                                    Union,

            and

SHERATON WAIKIKI HOTEL,

                                    Employer.

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    Grievances of GLENN HOKAMA,
    CHARLES BURGO, JR.,
    OWEN HIGASHIDE and
    GARY HAMADA

     Arbitration Hearing:       
     Dates:   February 19, 20, 2003
                   April 3, 10, 25, 2003
                   May 6 and 7, 2003
     Time:    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
                                                                                                Arbitrator


IN THE MATTER OF THE ARBITRATION BETWEEN
HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES LOCAL 5, AFL-CIO, AND
SHERATON WAIKIKI HOTEL
(THE GRIEVANCES OF GLENN HOKAMA, CHARLES BURGO, JR.,
OWEN HIGASHIDE AND GARY HAMADA)

           

            This matter came on to arbitration at hearings held on February 19, 20, April 3, 10, 25, May 6 and 7, 2003.  The Hotel Employees and Restaurant Employees, Local 5, AFL-CIO (“Union” or “HERE”) was represented by Sean Kim, Esq., and the Sheraton Waikiki Hotel, (“Employer” or “Company” or “Hotel” or “Sheraton Waikikil”) was represented by Ernest C. Moore, III, Esq. and Daniel G. Mueller, Esq.  The Arbitrator made a full disclosure of his prior relationships with both the parties and their counsel, and any objections were specifically waived by the parties to the arbitration through their counsel.  The Collective Bargaining Agreement (“CBA” or “parties’ CBA” or “Contract”) between the Employer and the Union effective March 1, 2000 through and including February 28, 2002 governs this subject.  The arbitration was conducted pursuant to Section 18 of the CBA (Grievance and Arbitration Procedure”).  All parties were fully, fairly, and well represented at the arbitration hearings and subsequently. 

ISSUES PRESENTED

            Pursuant to the documents, testimony and arguments submitted during the arbitration hearing, the issues presented to the Arbitrator are:

Issue No. 1: 

            Was the suspension of Glenn Hokama (“Hokama”), Charles Burgo, Jr. (“Burgo”), Owen Higashide (“Higashide”), and Gary Hamada (“Hamada”), collectively “The Grievants”, on July 17, 2002, and the termination of The Grievants on August 16, 2002, with just and sufficient cause?

Issue No. 2: 

            If the suspensions and terminations were not violations of the parties’ CBA, what shall be the appropriate remedy?                      

SUMMARY OF FACTUAL BACKGROUND

            The Sheraton Waikiki Hotel is a large complex with 1,743 rooms.  The Hotel’s Engineering Department, also known as the Maintenance Department, employs approximately sixty-two tradesmen.  The Engineering Department consists of several “shops,” including Carpentry (Public Areas), Carpentry (Guest Rooms), Plumbing, Electrical, Mechanical, Air Conditioning, Refrigeration, Upholstery, Sound and Light, and Administration.

            The Carpentry Shop (Public Areas) is located in the basement.  The Carpentry Shop (Guest Rooms) is located on the 23rd Floor.  There are a total of four painters in the two Carpentry Shops: one for the Public Areas and three for the Guest Rooms.  The Plumbing, Electrical, Mechanic, Air Conditioning, Refrigeration, Upholstery, and Locksmith shops are all located in the basement.  The Sound and Light Shop is located on the 4th Floor.

            Each of the shops in the Engineering Department has a working foreman.  The Engineering Department’s foremen are all bargaining unit members.  As bargaining unit members, the foremen’s primary job is to assign work to the bargaining unit members within their shop, but if needed, they are expected to assist their subordinates.

            In the Guest Room Carpentry Shop, the foreman is Clyde Freitas (“Freitas”).

            The Ken-Fix-It (“KFI”) program is the Hotel’s guest room maintenance program.  Guest satisfaction is directly tied to the quality of the Hotel’s physical plant.  To ensure the Hotel’s guest rooms always meet Hotel and guest standards, a block of 15 or 16 rooms, usually on the same floor, are taken out of service and refurbished.  It normally takes one to two days to complete all 15 or 16 rooms and return them to service; the rooms are taken out of service for three days at a time, but Housekeeping or the Upholstery Shop may also work in the rooms during that period.  The goal of the KFI program is to have each guest room worked on twice a year.

            The “KFI Team” consists of the three painters in the Guest Room Carpentry Shop and, when necessary, housekeepers who are temporarily transferred into that shop as maintenance utility persons to work essentially as laborers in support of the KFI program.

            At the time of The Grievants’ discharge on August 16, 2002 (“Grievants’ Termination” or “the discharge”), Grievants Burgo, Hokama and Higashide were the only painters in the Guest Room Carpentry Shop.  Since their discharge, those positions have remained unfilled, and the work has been done by housekeepers that have temporarily transferred into maintenance utility positions in the Engineering Department.

            Grievant Burgo was a floater, doing painting or wallpapering, depending on the needs of the KFI Team.  At the time of his discharge, Burgo was a Journeyman Painter with 13 years of experience at the Hotel.

            Grievant Hokama was normally assigned to the KFI program.  On the KFI program, a journeyman painter, usually Hokama, will paint the outside of the doors and door casings.  At the time, three to four laborers will work on the inside of the rooms doing touch-up painting and re-caulking.  Once finished painting the doors, the painter is expected to enter the room and assist the laborers, making 4-5 people available to do touch-up painting, wallpapering, or anything else that need to be done.  At the time of his discharge, Hokama was a Journeyman Painter with 15 years of experience at the Hotel.

            Grievant Higashide’s primary responsibility was wallpapering.  At the time of his discharge, Higashide was a Journeyman Painter with 24 years of experience at the Hotel.

            The Grievants worked 7.5 hours per shift, with a half-hour paid lunch break.  The Grievants earned $21.00 per hour.  The Employer provided the Grievants lunch in the employee cafeteria, free of charge.  In exchange for the Employer’s benefits to the Grievants, the Grievants, through their Union, agreed that there would be no breaks during their working time before and after lunch.

            At the beginning of their shift, Grievants Burgo, Hokama, and Higashide reported to Freitas’ office on the 23rd Floor to receive their assignments.  Freitas spends most of his day (i.e., 4-5 hours) working out of his office.  Freitas occasionally helps the KFI crew tear down wallpaper, but he rarely paints.

            The general practice was for the employees in the Guest Room Carpentry Shop to report to Freitas’ office, then proceed to Room 10-1 to pick up their supplies.  Room 10-1 is a storage room located on the tenth floor of the Hotel.  For at least the last ten years, in Room 10-1, the Hotel has stored paints, wallpaper, and painting supplies utilized by the KFI Team.

            Room 10-1 is a storage room which is used for the purpose of gathering work supplies.

            As far back as six or seven years ago, Freitas discovered that someone, without permission, took the time to paint the threshold the color black, just inside the door to Room 10-1.  The black paint deflected light from inside the room, making it appear from the outside of Room 10-1 that the light in that room was turned off.  Freitas asked Higashide to remove the black paint because “[i]t was like you are trying to hide and it doesn’t look right.”

            Freitas personally removed a latch that had been installed on the door to Room 10-1 to prevent it from being opened from the outside.  Freitas told the painters that they should not lock themselves in Room 10-1 because “it looks suspicious like you are hiding.”  According to Freitas, the only reason for having a lock on the inside of the door would be to prevent someone from coming in unexpectedly.  Although Freitas suspected, on many occasions, that something was amiss in Room 10-1, he remained loyal to his Union brothers, never informing management of the suspicious activity.

            Regarding the suspicious latch that he found installed on the door of Room 10-1, Freitas was straightforward and unapologetic, acknowledging that the so-called “Code of Silence” prevented him from reporting a fellow Union member to management.

            Disregarding Freitas’ previous instructions, someone later repainted the threshold black and replaced the latch.  The Grievants each had a card-key that allowed access not just to Room 10-1, but to every room in the Hotel, including guest rooms.  For security, they were required to report to the Locksmith Shop in the basement every day to sign-in and sign-out for their card.

            The Hotel expected Burgo, Hokama, and Higashide to gather their supplies at the beginning of their shift so that they would not waste time by having to return to Room 10-1 throughout the day to pick up supplies.  Since the KFI Team did only touch-up painting, Eric Au (“Au”), the Engineering Manager, testified that The Grievants could go weeks without having to re-fill their paint cans.

            Au holds monthly meetings with the various trades.  At one such meeting in June 2002, the painters on the KFI program complained about a lack of supplies.  Au considered this to be a group complaint; none of the Grievants told him they had all the supplies they needed.  Au recalls that Higashide mentioned that he did not have enough painting screens and that either Burgo or Hokama complained about a lack of brushes and manpower.

            During the Hotel’s investigation regarding the Grievants’ lack of supplies, the Hotel investigated Room 10-2.  Higashide was largely responsible for wallpapering.  The materials needed for that work were stored in Room 10-2, where Higashide usually stored his cart.  In Room 10-2, Higashide also had a locker.  In Higashide’s locker, the Hotel found food from the Hotel cafeteria, finance magazines, and several adult magazines (i.e., Barely 18, Cheri, and Penthouse).  In addition, the Hotel found hundreds of dollars worth of supplies.

            To address the perceived supply problem and improve efficiency, Au decided to look into a way of ensuring that the painters had easy access to supplies in Room 10-1.  One possible solution was to create storage cabinets in Room 10-1.

            On July 8, 2002, after first inspecting the 23rd floor service landing, Freitas and Au entered Room 10-1, looking for a solution to the complaints from the KFI team that they were running low on supplies.  Their intent was to take an inventory of the existing paint supplies and equipment, and see if they could install cabinets in Room 10-1 to securely store more supplies.

            When Au opened the door, he saw both Burgo and Hokama sitting in this room.  Burgo and Hokama were moving around and scrambling a bit as he entered.  When Au asked them what they were doing in the room, they replied, “We’re looking for paint.”  Au told Burgo and Hokama to leave the room, and he and Freitas also left.

            The door entry system utilized at the Hotel (Timelox) keeps a record of each time a door is opened, identifying the date and time it was opened, as well as the identity of the person whose key-card was used to open the door.  The lock to Room 10-1 can be interrogated by having a locksmith insert a “smart card” into the lock; the “smart card” downloads the data stored in the lock and that data can later be printed.  On July 8, Au reviewed the Timelox record of entries into Room 10-1 and determined that Burgo and Hokama had been in that room for 1 hour and 40 minutes when discovered.

            Consequently, the Hotel issued a written warning (“Written Warning”) to both Burgo and Hokama, citing them with violating House Rules 12a (Malingering), 21 (Failure to abide by the Hotel’s known policies, regulations or work rules), and 22 (Failure to comply with any hotel standards or policies or procedures).  When Au issued them the written warnings, they did not deny that they had been in the room for an hour and forty minutes.  They said they were taking a break.  The Union never grieved the Written Warnings issued to Burgo and Hokama for their misconduct on July 8, 2002.

            When the Hotel disciplined Burgo and Hokama on July 8, 2002, the Hotel believed this was a matter of two employees taking an unauthorized break on a single occasion.  The offenders were disciplined, and the Hotel considered the matter closed.

            Subsequently, Burgo and Hokama continued to make numerous entries into Room 10-1 throughout each workday.

            On July 15, 2002, Au and Freitas returned to Room 10-1 to conduct the inventory they intended to take a week earlier.  At this time, Au discovered a refrigerator and microwave hidden behind some cutout boxes, a blowup raft, bed covering/blanket, cooking utensils, current newspaper, shelf full of pornographic magazines, and an internal latching bolt (locking mechanism from the inside of the room).

            Au notified his boss, Wayne Judd (“Judd”), Director of Engineering, and Gary Rockwood (“Rockwood”), Human Resource Manager, of his discovery, and a thorough investigation followed.  Room 10-1 was locked down at that time, and has remained locked down ever since.

            In Room 10-1, Au found and took photographs of two fans that were plugged in, adult magazines hidden on a top shelf, the internal latching bolt, a “Budweiser Girls” poster autographed “To Glenn” and “Glenn (smiley face) Love, Machi,” refrigerator with cardboard box cover, microwave with cardboard box cover, hotel stock dishes, soda and condiments, inflated air mattress, and blanket.  In another inspection conducted a couple days later, Au found two cans of warm beer in Room 10-1.

            On July 15, 2002, a Hotel locksmith, under Au’s supervision, interrogated the lock to Room 10-1.  Each individual key can also be interrogated.  Also on July 15, 2002, the Hotel ran a print-out of the Timelox record for each of the keys assigned to the Grievants.  The Hotel’s interrogation of the lock to Room 10-1 and the keys assigned to the Grievants  revealed that nearly every day, the Grievants entered Room 10-1 substantially more times than could be justified.  The Hotel asked Freitas, the foreman of the KFI crew and a bargaining unit member, to compare the number of entries to the Grievants’ work schedule, and Freitas concluded that the number of entries could not be justified for business purposes.  From the information contained in the lock and key interrogation and the Grievants’ work logs, Au created a chart which shows the number of times per day that each employee entered Room 10-1.

            The results of the lock and key interrogation and the discovery of adult magazines, mattress, functional microwave and refrigerator, etc. in Room 10-1, and the Hotel’s discovery of Burgo and Hokama spending an hour and forty minutes in Room 10-1 led the Hotel to suspend Burgo and Hokama on July 17, 2002 while it conducted a further investigation.

            The Hotel gave each of the Grievants an opportunity to offer legitimate reasons for the inordinate number of entries into Room 10-1 before making a determination.  The Grievants each admitted to using Room 10-1 as a breakroom and, accordingly, the Hotel  decided to terminate their employment.  The unanimous decision to terminate The Grievants was a collective decision made by Judd, Au, Rockwood and Rose Cacho (“Cacho”), Human Resource Manager.   

APPLICABLE CONTRACT PROVISIONS

            The applicable CBA, in part, provides:

            Section 10.   Management Rights

            10.1    Except as limited by this Agreement, the direction of the work force and the right to hire, discipline or discharge are exclusively vested in the Employer, and the Union shall not abridge that right.

Section 17.   Discipline and Discharge

17.1    Cause for Discipline and Discharge.  An employee may be disciplined or discharged for just and suficient cause such as, but not limited to:

-Dishonesty                                               

-Falsification of work records

-Willful failure to perform the work set forth in the attached job descriptions

-Willful failure to observe the Employer’s rules and regulations

-Willful violation of the terms of this Agreement

17.2    Discipline and Discharge Notices.  Discipline and discharge notices issued to employees must contain specific information and reasons for which the notice is issued.  Such notices shall be issued to an employee as soon as the Employer is aware of the event leading to this action and has a reasonable period of time to investigate the matter.  If the Employer fails to take action within fifteen (15) days following the Employer’s knowledge of any event that may warrant such disciplinary action, the Employer shall not thereafter take action.  Such fifteen (15) day period may be extended by written mutual agreement between the Employer and the Union.

17.3    Cancellation of Notices.  Warning notices, written customer complaints, and reports of outside agencies or the Employer’s own security force concerning conduct of any employee shall become null and void eighteen (18) months after the day of issuance and may not thereafter be used as a basis for or in support of any subsequent discharge, disciplinary action, or arbitration.

Section 18.  Grievance and Arbitration Procedure

18.6    In no event may the terms and provisions of this Agreement be altered, amended, or modified by the Arbitrator.

18.7    Nothing contained in this section shall limit or abridge the rights of the Employer in management of the business as set forth in this Agreement.

Section 34.   Hours, Workweek, and Overtime

4.1       Work Day.  A work day shall be defined as work performed by an employee for shifts of four (4), six (6), or eight (8) hours in a day.  Shifts exceeding five (5) hours in duration shall include thirty (30) uninterrupted minutes off for a meal with pay . . .

            Sheraton’s Employee Handbook discusses the duties and obligations of every employee and provides in relevant part:

            Standards of Conduct

            There are certain acts of misconduct which the hotel cannot condone, particularly when they affect guest safety and comfort.  These standards are established to protect our property, our business interests and your interests.  You may be subject to dismissal or disciplinary action for failing to comply with acceptable standards of conduct.  Some examples of our standards of conduct are provided below; however, this list is not intended to be a complete list and the hotel reserves the right to discipline or terminate employees for any other reason deemed appropriate by the hotel in its discretion including, but not limited to the following:

2.         Dishonesty in any form including but not limited to stealing, falsification of records, altering work schedules, or fraudulent acts or statements

5.         . . . [anything which] prevents timely performance of work . . .

6.         Insubordination, refusal, or failure to perform work or work related activity as ordered or requested.  Poor work performance.  Disrespectful conduct to a Supervisor.

12.       Malingering, or repeated tardiness or absence from work with or without valid reasons.  Sleeping or idling on the job.

15.       Use of hotel property, equipment or material for personal use or for the use of any person, organization or agency without authorization.

19.       Any willful action detrimental to the best  interests of the hotel.

20.       Creating or contributing to unsanitary or unsafe conditions.  Failure to immediately report any accidents or injuries on the job to a supervisor.

21.       Failure to abide by the hotel’s known policies, regulations, or work rules.

22.       Failure to comply with any hotel standards or policies or procedures.

            The Hotel’s sexual harassment policy provides:

It is our firm policy that employees shall not be subjected to harassment or discrimination.  Accordingly, we will promote and maintain a work environment free from all forms of harassment and discrimination, and insist that all employees be treated with dignity, respect and courtesy.  With this policy, the Company prohibits not only actions which are severe enough to be unlawful; it also prohibits conduct and comments  which are not severe enough to violate state, federal or local law but which are still inappropriate in our workplace.  Harassment or discrimination occurring in the workplace or in connection with work is counterproductive to the organization and will not be tolerated.  Accordingly, Starwood maintains a “zero tolerance” policy regarding harassment and discrimination.

            GUIDELINE

The following discussions of what constitutes discrimination, sexual harassment and discriminatory harassment are simply guidelines.  Be mindful that they are not exhaustive definitions.  You are encouraged to consult with human resources regarding any question you may have regarding discrimination or harassment.

                                                                           * * *

Sexual harassment is defined as unwelcome or unwanted sexual advances, behavior or conduct whether verbal, physical or visual that is based on a person’s gender or interferes unreasonably with work performance or creates a hostile work environment.  Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature constitutes sexual harassment when:

-Submission to the conduct is made (implicitly or explicitly) a term or condition of employment;

-Employment decisions affecting an individual are based upon the individual’s submission to or rejection of such conduct; or

-The conduct has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile or offensive work environment.

The following list offers some examples of conduct that may be regarded as sexual harassment:

                                                                           * * *

-Display of sexually explicit or offensive printed or visual material, including, but not limited to, photographs, cartoons, e-mails, drawings or notes. 

                                                                           * * *

The Company will promptly investigate complaints of harassment and discrimination, and will take prompt remedial and/or disciplinary action as is appropriate under the circumstances . . .

POSITIONS OF THE PARTIES

EMPLOYER'S POSITION

The Employer’s position is that it is entitled to dismissal of the grievance, arguing that:

1.         The Grievants had transformed Room 10-1 into a surreptitious breakroom comfortably stocked with food, drinks, a refrigerator and microwave, fans, air mattress, an extensive supply of adult magazines, and a bolt-latch to secure privacy.

2.         Discharge was compelled not just because Room 10-1 is not a breakroom, though that alone warranted discharge, but because the Grievants collectively bargained for a work schedule with no breaks other than their 30 minute paid lunch period.  Nothing the Union can say or argue can change the fact that by their own admission, each of the Grievants took breaks during their working time without bothering to inform the Hotel.

3.         The obvious clandestine behavior of the Grievants proves conclusively that they knew that Hotel management would not approve of their “clubhouse.”

4.         Discharge is mandated because it is undeniably clear that the Grievants retreated to Room 10-1 for unauthorized breaks during their working time (i.e., at times other than their 30-minute lunch break).

5.         The mistake the Grievants appear to have made was confusing “employment” with “entertainment.”

6.         To that end, the Hotel rewarded the Grievants for showing up to work every day and putting in a full day’s work (it thought) in spite of any perceived or real “boredom” and “monotony,” by providing excellent pay, benefits, working conditions, and, most importantly, job security.

7.         The Grievants’ lack of respect for their jobs is regrettable, but they are not worthy of any sympathy.

8.         All of the hard-working members of the bargaining unit had to do extra work to compensate for the Grievants not pulling their fair share of the load.

9.         Room 10-1 is a storage room, not a breakroom.  The only legitimate purpose for entering this room is to gather work supplies.  Yet, without the approval or knowledge of the Hotel, it appears that for several years, members of the bargaining unit have used Room 10-1 as a breakroom or hideout.

10.       The Grievants themselves set in motion the chain of events that would lead to the discovery of their surreptitious breakroom and, inevitably, their discharge.  By making a bogus complaint about inadequate supplies, they unwittingly lured management into their clubhouse.

11.       The Hotel did not act rashly and immediately discharge the Grievants.  Instead, on July 17, 2002, it suspended each of the Grievants while it conducted further investigation.

12.       Burgo admitted that he entered Room 10-1 as many as 10 times a day and lingered there for as many as 10-15 minutes each time.  In a single day, Burgo could spend as many as two and a half hours in Room 10-1.

13.       Burgo admitted he knew about the contraband in Room 10-1 (i.e., hidden microwave, hidden refrigerator, adult magazines, mattress, dishes, utensils) and admits he used both the microwave and refrigerator.

14.       Burgo implicated Hokama, the cohort who was found lounging with him in Room 10-1 on July 8, would occasionally enter Room 10-1 and see Hokama sitting down.

15.       During his investigation interview, Hokama admitted that he used Room 10-1 as a breakroom, and he said he did so as many as 3-4 times a week, for as much as 15 minutes at a time, depending on how tired he was.  Regarding the contraband in Room 10-1, Hokama admitted he knew of the “unauthorized” items that were stored there.

16.       The Hotel’s investigation showed that Higashide used Room 10-1 as a surreptitious breakroom.  Like Burgo and Hokama, Higashide submitted a written statement admitting he used Room 10-1 as a breakroom.  Higashide admitted that in addition to his breaks, he would spend as much as 2 hours at a time in Room 10-1.

17.       The Hotel’s investigation revealed that on the weekends, Hamada used Room 10-1  as a surreptitious breakroom.

18.       The Grievants each received the sexual harassment policy.

19.       The Arbitrator’s role is to review, not second-guess, management’s disciplinary action.

20.       The Hotel’s termination of The Grievants meets all seven of the tests for just cause often applied by arbitrators to assay the existence of just and sufficient cause to terminate employees.

21.       The Grievants were clearly aware of the perilous disciplinary consequences of their flagrant misconduct.

22.       The Grievants, through their Union, bargained for this schedule and, presumably, received a concession from the Hotel in return for such a commitment.  Reviewing the CBA, it is obvious that the Hotel made many significant concessions, such as agreeing to pay for the meals consumed by the bargaining unit’s membership during their paid lunch break.

23.       During their shift, except for the 30-minute paid meal period, employees are expected to actually work.  In its Employee Handbook, the Hotel notified all employees that giving a full day’s work for a full day’s pay was a matter of “personal integrity.”  Each of the Grievants acknowledged in writing that they received a copy of the Employee Handbook.

24.       The Union cannot deny the fact that the Grievants all took breaks in Room 10-1 because each of the Grievants admitted that he regularly did so.

25.       No one testified that any member of management ever said it was permissible for an Engineering Department employee to go and hide in a storage room during his working time to take a breather or that any member of management ever knowingly tolerated such conduct.  Hotel management, of course, would never tolerate such a practice because giving employees the right to determine for themselves when they can take a break and how long the break will be would lead to uncontrollable abuses.  In such a case, no one could verify the need for the “breather” and prevent the employee from abusing the Hotel’s concern for employee health and safety.

26.       The Grievants were terminated for absenting themselves from work without authorization.  They hid in a storage room where management rarely went and covered their refrigerator, microwave, etc. precisely because they knew they were engaged in nefarious activities.

27.       The Grievants’ conduct shows that they knew what they were doing was wrong.  The location chosen by the Grievants for their self-authorized breaks shows they were trying to avoid work.

28.       Not a single member of the bargaining unit testified on the Grievants’ behalf.

29.       Each of the Grievants testified that each and every time they used one of the appliances in Room 10-1, they took the time to remove the cover and then replace the cover after use.

30.       This case proves that allowing employees to have breakrooms wherever they want, away from the watchful eye of management, leads to abuses of company trust.

31.       The only reason for having a latch on the door is to keep someone from entering from the outside.  The Grievants were specifically told by Freitas that they should not have a lock on that door, and he personally removed a lock he found on that door.  The Grievants replaced that lock, showing again they did not care what Freitas thought.

32.       The only reason for putting black paint on the floor would be to make it more difficult to tell from outside the room that the light was on.  None of the Grievants was told to paint the threshold to the door to Room 10-1 black.  Freitas, in fact, told them precisely the opposite, ordering Higashide to remove black paint that had been put on the threshold.  As was the case with the lock, The Grievants ignored Freitas and re-painted the threshold black.

33.       The Grievants knew that the Hotel had not approved of their surreptitious breakroom or authorized them to take unsupervised breaks whenever and wherever they wanted, for however long they wanted.  There is not a scintilla of evidence that any member of management knew of The Grievants’ surreptitious breakroom.

34.       The Grievants knew their breakroom was not approved, hence their efforts to keep it secret.  They knew that what they were doing was wrong.  They chose to risk getting caught.

35.       Freitas was not a member of management and, therefore, he had no authority to speak for the Hotel.  The Grievants paid no attention to Freitas’ warnings precisely because they knew he had no authority to discipline them for anything.

36.       Freitas made it undeniably clear to the Grievants that if management caught them taking unauthorized breaks in Room 10-1, they could be disciplined.

37.       Freitas’ decision to turn a blind eye toward his fellow bargaining unit members is irrelevant to whether the Grievants were properly disciplined.   It could only be relevant if Freitas had turned around and reported the Grievants to management.  Freitas made it very clear that he did not believe it was his responsibility to report his fellow Union members to management and, therefore, he never did.

38.       The Grievants could not have inferred from Freitas’ conduct that they were allowed to malinger in Room 10-1.  Freitas specifically told them they could not do so.  Burgo and his cohorts knew what they were doing was wrong; they chose to risk being caught.  Willful ignorance is not an excuse in labor arbitrations.

39.       The many rules violated by The Grievants are reasonably related to business efficiency and expected job performance.  The Grievants violated many Hotel rules by taking unauthorized breaks during their working time in a storage room they had transformed into a surreptitious breakroom.

40.       It is entirely reasonable for the Hotel to expect its employees to work during their working time and to not use their working time to steal away in an unauthorized breakroom to view adult magazines, eat, drink, sleep and/or “talk story.”

41.       An investigation was conducted before discipline was imposed.  The Hotel conducted a competent and fair investigation before determining that each Grievant’s discharge was warranted.

42.       A Union member is hardly likely to risk the wrath and power of his own Union, an entity which the member financially supports and subsidizes through payment of Union dues.  The motive of the employee-witness in such a case is to refrain from testifying against his fellow Union Members.

43.       The investigation was both fair and objective.

44.       There is overwhelming evidence of the Grievants’ misconduct.

45.       The Grievants were dishonest.  They accepted money for work not performed.  Hiding in a storage room during periods of time when the Grievants were supposed to be working constitutes “malingering”and a “refusal or failure to perform work.”

46.       The Grievants slowed the work of the KFI program and created additional work for others.

47.       The microwave and refrigerator were not authorized for use in Room 10-1, given the presence of large amounts of flammable material.  By utilizing those appliances in Room 10-1, the Grievants thus created a fire hazard.

48.       The Hotel’s Sexual Harassment Policy prohibits the “Display of sexually explicit or offensive printed or visual material, including, but not limited to, photographs.  The 50 or so magazines depicting nudity and acts of sexual intercourse are “sexually explicit.”

49.       The Hotel applied discipline for the Grievants’ behavior fairly and without discrimination.

50.       The penalty fits the misconduct.  The Hotel has a right to discipline an employee for the dishonesty displayed by the Grievants here.

51.       The various contentions raised by the Union to avoid termination of the Grievants must be rejected.

52.       Each of the Grievants regularly took unauthorized breaks in a storage room during their working time, a fact each of them admitted. 


UNION'S POSITION

It is the Union’s position that the Employer has violated the CBA noting that:

1.         The Employer did not terminate The Grievants for just and sufficient cause.

2.         The Grievants were terminated based on speculation, conjecture, unproven assumptions and the blatant disregard of the Sheraton’s historical practices and accepted methods of working.

3.         The Grievants were treated in a disparate manner by the Employer.

4.         An example of the arbitrariness and capriciousness of the Employer’s action is the Employer’s counsel’s insistence on referring to these grievances as the “Surreptitious Breakroom Grievance.”  The evidence is clear that it was common knowledge that there was a refrigerator, microwave oven, dishes and other items in Room 10-1.

5.         There was no misconduct by the Grievants and certainly none that warranted termination.

6.         The Union believed so strongly that The Grievants were improperly terminated, the Union agreed to pay all of the fees and expenses of the Arbitrator in order to obtain an agreement from the Sheraton to arbitrate (this occurred during the period that the CBA had terminated).  In addition, the Union agreed to pay the Sheraton’s attorneys’ fees if it lost the arbitrations.

7.         At the time Burgo was assigned to work with the KFI crew, the evidence is undisputed that the refrigerator and microwave oven had been in Room 10-1 for several years.  Burgo had no way of knowing that the Employer would later claim that these items were unauthorized.

8.         The items in Room 10-1 were authorized by the long period of time that they were located in Room 10-1 and the tacit consent of their foreman.

9.         The fact that the Grievants might have gone to Room 10-1 on several occasions in one day to match paint is not misconduct.  They were only doing their job, as they felt it should be done.

10.       When Burgo joined the KFI crew in 1998, the refrigerator, microwave oven, dishes and utensils were already in Room 10-1.  He did not bring any of these items to Room 10-1.  He did not make the covers for the refrigerator and microwave oven - these items had covers when he was assigned to the KFI crew.  He was never told by anyone, prior to his suspension and termination, that it was an alleged violation of Sheraton policy for the refrigerator and microwave oven to be in Room 10-1.  He personally did not believe this was a violation of any Sheraton policy since most of the shops had refrigerators and the carpenters shop used to cook food in the basement.  Shop refrigerators were common around the Hotel.  He did not believe it was improper to use the refrigerator or microwave oven located in Room 10-1.  Freitas, Sales and Bunao never told him that he shouldn’t use the microwave oven or that it posed a safety hazard.  The Employer stipulated that the microwave oven did not violate any Sheraton policy.

11.       The Employer’s insistence that the covers somehow showed an improper motive or knowledge simply does not hold water in light of the fact that the dishes, soda cans, Starbucks coffee, and items on the shelf in Room 10-1 were not hidden.  If the KFI painters wanted to keep secret their use of Room 10-1, they would have hidden all of these items.  The two cans of warm beer are not a violation of any Sheraton policy since the beer was not in the refrigerator, and the cans were not open.

12.       Burgo would talk to Hokama in Room 10-1.  He didn’t believe this was improper.  It was a common place occurrence at the Sheraton for employees to talk to each other during the work day.  Employees did it all the time in the basement shops.

13.       Burgo was never told by any supervisor or management person that he was malingering or not completing his work assignments.  He did not consider drinking water and talking for a few minutes in Room 10-1 to be an unauthorized break since he was simply drinking water when he had a reason to go to Room 10-1.  This was no different from what he saw other employees doing every day during his thirteen years of employment at the Sheraton.

ESTABLISHING JUST AND PROPER CAUSE

            In this matter, pursuant to the CBA and the body of decisions governing the interpretation of just cause, the Employer must show that just and proper cause existed for the Grievant’s suspension and termination by the Employer.  “Just Cause”, as defined by Arbitrators Hill, Sinicropi, and Evenson is as follows:

            Just Cause.  The standard by which it is determined that the employer has sufficient reason to remove an individual from employment.  Basically synonymous with “reasonable,”  “good,” or “proper cause.”  Perhaps the most often-quoted statement of just cause criteria used by arbitrators is in the form of a series of questions provided by Arbitrator Carroll Daugherty in Enterprise Wire Co., 46 LA 359, 363-64 (1966) and Grief Brothers Cooperage Corp., 42 LA 555, 558 (1964).

Marvin F. Hill, Jr., Anthony V. Sinicropi, Amy L. Evenson, Winning Arbitration Advocacy (1997).

            In order to satisfy this standard, the Employer must meet the following tests required to show just cause for suspension and termination:

            1.         The employee was forewarned of the consequences of his 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 discipline 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.); Koven and Smith, Just Cause The Seven Tests (2d ed. 1992); 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 and Safeway (10/30/98) (Nauyokas, Arb.); IAM and Aloha Airlines (8/23/99) (Nauyokas, Arb.); Sheraton Waikiki Hotel, 114 Lab. Arb. (BNA) 1595, 1598-99 (2000) (Nauyokas, Arb.); SHOPO and City & County of Honolulu (9/20/00) (Nauyokas, Arb.); UPW and Hawaii Health Systems Corp. (2/24/01) (Nauyokas, Arb.); HERE, Local 5 and Hyatt Regency Waikiki (11/13/01) (Nauyokas, Arb.); see also Ogden, 111 Lab. Arb. (BNA) 251, 253 (8/31/99) (Nauyokas, Arb).

ANALYSIS

Issue No. 1:  Were the Grievants forewarned of the consequences of their actions?

            The testimony and the exhibits produced at the arbitration hearing clearly demonstrated that the Grievants were aware of the policy based on personal counseling and the actual policy which were provided to them by both the Employer and the Union.  The CBA provides that during an 8 hour shift, bargaining unit members have only one break, a 30-minute interrupted lunch period.  The Employer’s policy clearly states as follows:

Section 34.   Hours, Workweek, and Overtime

                31.   Work Day.  A work day shall be defined as work performed by an employee for shifts of four (4), six (6), or eight (8) hours in a day.  Shifts exceeding five (5) hours in duration shall include thirty (30) uninterrupted minutes off for a meal with pay . . .

Joint Exhibit 1.

            The Grievants are presumed to know the terms of their CBA.  The Employee Handbook, pursuant to the CBA, notifies employees that if their work schedule entitles them to a break, the break is only “a half-hour paid meal period.”  The Grievants, through their Union, bargained for this schedule and, presumably, received a concession from the Hotel in return for such a commitment.

            With the exception of the 30-minute paid meal period, employees are expected to actually work during their shift.

            Each of the Grievants acknowledged in writing that they received a copy of the Employee Handbook.

            In the instant case, the Employer gave the Grievants notice of the rules prohibiting

time away from work and of the consequences for violating those rules.  Given these circumstances, the Arbitrator finds that the Grievants were or should have been aware of the fact that any action taken against the Employer’s policies could or would result in the suspension or termination of their employment.

            This first consideration has therefore been satisfied by the Employer.

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

            In the arbitrator's analysis, the nature of the rule against time away from work is, per se, a reasonable rule.  It is reasonable that the Employer expect its employees to abide by its work schedule policy, as the enforcement of this policy has a direct correlation with the efficiency and success of the Hotel.

            The second consideration has therefore been satisfied by the Employer. 

Issue No. 3:  Was an effort made prior to the discipline of the Grievants to determine whether or not they were guilty of the offense charged?

            The Hotel conducted a complete and fair investigation before determining that each Grievant’s discharge was warranted.  This effort included a thorough review of the written statements submitted by Grievants Burgo, Hokama, and Higashide.  Grievant Hamada declined to give a written statement.

            The Hotel provided each Grievant with chance to tell his side of the story before terminating his employment.  

            The investigation procedure was designed to make a fair determination whether the abuse had been substantiated prior to imposing discipline.  Therefore, the Arbitrator specifically finds that the Employer thus satisfied all of the due process steps of investigation and deliberation required under the Contract before the discipline was imposed on the Grievants.

            The third consideration has therefore been satisfied by the Employer.

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

            As noted in the analysis of issue No. 3, an investigation was conducted wherein the Grievants had the opportunity to tell their side of the story to a higher management official, and  the management official gave the Grievants the opportunity to state their case.  Essentially, the investigatory steps were taken by the Employer to determine whether or not the Grievants violated the rules cited as cause for discipline.     

            The detailed and extensive investigation performed by Cacho, including the witness interviews and completion of written statements, was conducted fairly and objectively.  In performing the investigation, the Employer took extensive efforts to make a fair determination before discipline was imposed.  The investigator attempted to be fair and objective, and the material evidence gathered by the investigator relative to the charges was in fact accurate.

            Although the Union contends that the Employer failed to investigate the incident fairly and objectively, the Union did not present any evidence that indicated that the investigator intentionally created inaccurate summaries.  Further, the Union did not introduce into evidence testimony by anyone who corroborated the Grievants’ version of the events. 

            The Employer’s conclusion was more than reasonable given the severity of the allegations.             Additionally, other investigatory measures were taken by the Employer in order for the Employer to make a sound determination as to whether the Grievants were guilty of the offense charged, including photographs of Room 10-1.

            It is clear that the Grievants had the benefit of representation by their Union, and an opportunity to be advised as to the specific charges that were brought against them and to respond to such charges.

            In summary, the evidence showed that the investigation conducted by the Hotel was complete and fair in its effort to determine whether the Grievants had taken unauthorized breaks.  In reviewing the evidence in the light most favorable to the Grievants, it appears that the investigation was conducted fairly and objectively.

            The fourth consideration has therefore been satisfied by the Employer.

Issue No. 5:  Was substantial evidence of the Grievant’s guilt obtained?

            The Union contended that the Grievants were terminated based on speculation, conjecture, unproven assumptions, and the blatant disregard of the Hotel’s historical practices and accepted methods of working, and that there was no misconduct by the Grievants that warranted termination.

            In reviewing the exhibits and the testimony of witnesses given at the arbitration hearing, including the Grievants’ own testimonies, the Arbitrator finds that although the paraphernalia contained in Room 10-1 were items not normally found in the storage room, the Arbitrator considers these items circumstantial evidence of the Grievants’ guilt.  The investigation, in its entirety, correctly concluded that there was substantial evidence that the Grievants had engaged in unauthorized breaks.  Additionally, the Arbitrator finds all of the Employer’s witnesses’ testimonies credible on this point.   

            In the instant case, the Arbitrator finds that the Employer obtained substantial evidence of the Grievants’ guilt (i.e., unauthorized breaks) prior to their discipline, and that there was insufficient evidence by the Grievants to justify their act against the Employer’s unauthorized break policy.

            This fifth consideration has therefore been satisfied by the Employer.

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 the Employer applied its rules and penalties pertaining to unauthorized breaks fairly and without discrimination to its employees.

            The evidence introduced at the hearings showed that the Hotel’s policy was applied to the Grievants in a fair and even-handed manner.  In particular, the evidence revealed that the Employer, in deciding whether to impose discipline, reviewed and considered all available evidence, including mitigating factors to support the Grievants.  Therefore, the Arbitrator finds that the rule in this instance was applied fairly and without discrimination.

            The sixth consideration has therefore been satisfied by the Employer.

Issue No. 7:  Was the degree of discipline reasonably related to the seriousness of the offense and the Grievant's past record with the Employer?

            Given Grievants Higashide and Hamada’s first offense as a mitigating circumstance, and considering the Employer’s personnel policies and procedures,  Grievants Higashide and Hamada’s behavior here, while unacceptable, was not an offense that justified immediate suspension or termination.

            The Arbitrator generally will not substitute his judgment for the judgment of the Employer in determining the appropriate discipline given a particular set of facts.  In this case, had this offense been Higashide’s and Hamada’s second offense, despite their length of employment and past work record, suspension and termination would have been a proper level of discipline considering the factors applicable under this tier of the analysis.  However, the Arbitrator determines that termination under the circumstances cannot be sustained given Grievants Higashide’s and Hamada’s first-time offense and length of employment.

            Consequently, the Arbitrator finds that the Employer has not satisfied this tier of Just Cause analysis.  The degree of discipline was not reasonably related to the seriousness of Grievants Higashide’s and Hamada’s offense given their length of employment and past record. 

            This seventh consideration has therefore not been satisfied by the Employer with respect to Grievants Higashide and Hamada.

            With respect to Grievants Burgo and Hokama, the Arbitrator finds that their violation of the Hotel’s unauthorized break policy was, in fact, at least, their second offense (They were previously warned verbally by Freitas and written up by Au).  The testimony at the arbitration hearings, as well as the evidence and exhibits, revealed that Grievants Burgo and Hokama had been previously counseled and disciplined in writing for taking unauthorized breaks.  Yet they continued to make numerous, unnecessary entries in Room 10-1.  In the instant case, Grievant’s Burgo and Hokama’s blatant disregard of the Employer’s prior counseling and warning with respect to unauthorized breaks was a serious offense against the Employer, and one that should not be taken lightly.

            The Arbitrator specifically finds that the nature of the offense was so serious that termination, regardless of Grievant’s Burgo and Hokama’s length of employment with the Employer, was the suitable discipline for the offense.  Their repeated offenses should not be tolerated in the workplace. 

            This seventh consideration has therefore been satisfied by the Employer with respect to Grievants Burgo and Hokama.

REMEDY

            Although there was not just cause for immediate suspension and termination for Grievant’s Higashide and Hamada, the Grievants’ behavior was clearly unacceptable.  Thus, they should not benefit and receive back pay for not working, nor any employment benefits.  A lengthy suspension is, however, justified.  Further, Grievants Higashide and Hamada need to take action to make ensure that they do not violate the Employer’s policies again.  Therefore, Grievants Higashide and Hamada are reinstated without back pay or employment benefits.


AWARD

            The Grievances are sustained in part and denied in part.  Grievants Higashide and Hamada’s grievances are sustained in part, and they are to be reinstated without backpay or employment benefits.  The Arbitrator considers their time away from work to be a disciplinary suspension.  Grievants Burgo and Hokama’s grievances are denied, as there was just cause for their suspensions and terminations.

            The Arbitrator shall retain jurisdiction over this award until such time as the parties have shown substantial compliance with its terms and shall be available to clarify the specific parameters of any issue related to the award.    

            DATED: Honolulu, Hawaii,                                     , 2003.

                                                                                                ______________________________
                                                                                                MICHAEL F. NAUYOKAS
                                                                                                Arbitrator

                                                                        Pacific Guardian Center, Makai Tower
                                                                        733 Bishop Street, Suite 2300
                                                                        Honolulu, Hawaii  96813

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

           

            On this _____th day of __________ 2003, 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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