Acevedo, Marcos - Arbitration Award 415727 - 2011-10-06

8/13/2019 Acevedo, Marcos - Arbitration Award 415727 - 2011-10-06

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- - - - - - - - - - - - - - - - - - - - - - - XIn the Mat ter of the Arbi t r a t ion betweenMICH EL FISHMAN PRESIDENT LOC L 32BJ,SERVICE EMPLOYEES INTERNATIONAL UNION

- and -COLLINS BUILDING SERVICES INC.- - - - - - - - - - - - - - - - - - - - - - - XAPPEARANCESFor the Union:

For the Employer:

Ryan Borgen, Esq.Associa te General CounselArthur Viviani , Esq.

OPINION AWARDCase #415727

Employee:

David Mart inez, Direc tor ofLabor Rela t ions

Marcos Acevedo, GrievantPremises: 1065 Sixth Avenue

A dispute having a r i s en between COLLINS BUILDING SERVICESINC. here inaf te r r e fe r red to as the Employer ) and Local 32BJ,Service Employees In te rna t iona l Union here inaf te r r e f e r r ed toas the Union ) concerning 1065 Sixth Avenue, the same wassubmit ted to the Undersigned for a rb i t r a t i o n and Award pursuantto the per t inen t prov i s ions of the then cur ren t Col lec t ive


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Grievant was terminated by David Martinez, the Direc tor of HumanResources (C.Exh.4). The Employer argues tha t the Grievant ,al though employed in the bui ld ing for several years, was onlyemployed by the Employer for two weeks before he was terminated.The a l lega t ions agains t the Grievant are very ser ious andcer ta in ly grounds for terminat ion. n employee has no r igh t touse any of the f ac i l i t i e s or property of a customer for h is ownbusiness . Every employee who i s in the bui lding service industryknows th i s .

In addi t ion, a complaint by a customer that the Grievantwas discuss ing personal informat ion with i t s employees and madethem very uncomfortable was unacceptable behavior . Thecustomer was so upset by the act ions of the Grievant tha t theyrequested tha t he be removed from t he i r f loor . On July 13, 2011,Angela Moroney, the Property Manager for BRE PropertyManagement, wrote the Employer request ing that the Grievant notbe re turned to the bui lding (C.Exh.3).

In summary, the Employer argues tha t the act ions of theGrievant , in par t i cu la r his a t t i tude toward not only theEmployer but the customer as well , cer ta in ly was j u s t cause forhis terminat ion. The Employer requests tha t the terminat ion beupheld and the grievance be denied in a l l respects . In any eventthe Employer points out the Grievant cannot be re turned to thebui ld ing .

The Union's f i r s t response i s to the Employer's argumenttha t the customer i s refus ing to al low the Grievant to re turn tothe building in any event . The Union c i t e s Art ic le XIII 1. (c)of the Agreement (quoted below). Under tha t Art ic le i f theEmployer does not have cause to terminate a Grievant and thetenant i s re fus ing to al low the Grievant to re turn to work in


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the bui lding, there i s a procedure to place the Grievant inanother bui ld ing . I t argues tha t here, there was no cause toterminate the Grievant and the customer i s refus ing to al low himto be re turned to the building, therefore the provisions ofArt ic le XIII must be followed. The Union recognizes tha t theGrievant has already been placed in a di f fe ren t bui lding butargues that Art ic le XIII has other requirements.

Regarding the terminat ion of the Grievant , the Union arguestha t the Employer has fa i l ed to sus ta in the burden of proof toju s t i fy a terminat ion. Under the Agreement, the Employer mustprove t had j u s t cause to terminate the Grievant . The Grievanthas over twenty-one years of service in the bui lding whichcannot be ignored. The Employer has accused the Grievant ofseveral al leged vio la t ions of i t s work rules . I t supported i t saccusat ions with l e t t e r s from the employees of the customer butnone of them appeared to t e s t i fy agains t the Grievant. The onlyevidence offered was the test imony of two of the Employer smanagers who spoke to both the customer and the Grievant. Theyadmit ted that they had no di rec t evidence of the accusat ions andr e l i ed upon the discuss ions with the customer. The exhib i t s andtest imony of the Employer s witnesses therefore are a l l hearsayand the Union has had no opportunity to examine the witnesses.This evidence has no probative value and must be disregarded.The Grievant did appear and t e s t i fy . e denied a l l theaccusat ions agains t him but did admit tha t he asked the customerto make some copies . e t e s t i f i ed tha t the customer agreed anddid not say anything to him.

Based on the fa i lu re of the Employer to prove i t s caseagains t the Grievant , the Union requests tha t the Grievant bere turned to h is former pos i t ion with res tora t ion of a l l back payand benef i ts .


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In the event the Arbi t ra to r f inds tha t the customer hasmade a l eg i t imate demand tha t the Grievant not be re turned tothe bui ld ing then the Union reques ts tha t the Grievant be alsogiven the fu l l pro tec t ion of Art i c l e XIII of the Agreement.

QUESTIONSwas the Grievant t e rmina ted for j u s t case? I f notwhat sha l l the remedy be? In the a l te rna t ive i sArt i c l e XIII of the Agreement appl icable?

RELEV NT GREEMENT L NGU GE

RTICLE XIIIManagement Rights and Obl igat ionsenior i ty and Job ecurity

c) I f an employee i s removed from a loca t ion a tthe good f a i t h demand of a customer, the Employermay remove the employee from fu r the r employmenta t tha t l oca t ion provided t he re i s a good f a i t hreason to j u s t i f y such removal, apar t from thedemand i t s e l f .Unless the Employer has cause to discharge theemployee, the Employer wi l l place the employee ina s imi la r job a t another f a c i l i t y within the samecounty covered by t h i s Agreement, unless theUnion and the Employer s ha l l agree to place theemployee in a s imi la r job in a d i f f e r e n t countycovered by t h i s Agreement) without loss ofent i t lement se n i o r i t y o r reduc t ion in pay o rbenef i t s and pay Displacement Pay to suchemployee equiva lent to the Terminat ion Pay


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schedule se t for th in Art ic le XIV Section 26(a) , but not l e s s than two (2) weeks pay.In the event an employee i s t r ans fe r red toanother bui ld ing and i s not f i l l i ng a vacantposi t ion the Employer sha l l seek volunteers onthe bas i s of senior i ty with in the job t i t l e . I fthere are no volunteers , the j un io r employeessha l l be se lec ted for t ransfer and rece ive thesame Displacement Pay and protec t ion afforded tothe t ransferred employee.In the event an employee i s terminated pursuantto t h i s sec t ion the Employer must ra i se thei s sue of t ransfer in such terminat ionarb i t ra t ion .

DIS USSION

The Employer i s cor rec t tha t the accusat ions agains t theGrievant are ser ious . Discussing personal i tems with an employeeof a customer i s never permit ted. Here, the test imony andexh ib i t s were c lea r tha t the al leged comments and quest ions tothe customer 's employee made her uncomfortable . The Employer 'switness , David Martinez, the Director of Human Resources,t e s t i f i e d tha t the Grievant admit ted tha t he made copies ofch i ld support papers on the customer 's copying machines and whenasked i f he had obtained the customer 's permission, gave a f l ipanswer commenting What i s the big deal? Martinez alsot e s t i f i ed tha t the Grievant admit ted to the Arbi t ra to r a t thesecond s tep meeting tha t he made copies on the customer 'scopying machines.

The Union does not deny tha t the Grievant did ask thecustomer to make some copies , but t e s t i f i e d he asked thecustomer to make some copies maybe two t imes and they agreed


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without comment or complaint . The Grievant also t e s t i f i e d tha ta t the second s tep hearing, when the Arbi t ra tor asked him i f hemade copies , he rep l ied No. The Arbi t ra tor never asked him i fhe asked the customer to make copies .

As s t a t e d by the Employer, the a l l ega t ions agains t theGrievant , in par t i cu l a r the claim tha t the Grievant askedpersonal quest ions of an employee of the customer are ser ious .However, the Union argues tha t the Employer has fa i l ed to provet h i s charge by di rec t evidence, e .g . , the test imony of theemployee or even from the supervisor of the complainingemployee. The Employer 's witnesses both t e s t i f i e d tha t theynever spoke to the woman di rec t ly .

The r e su l t i s , as argued by the Union, there i sinsuf f i c i en t evidence to sus ta in t h i s charge agains t theGrievant . Regarding the second claim tha t the Grievant madeunauthorized copies on the copiers of the customer,t h i s but cla ims tha t he never made the copies but

he admitsasked the

customer to do so and then t e s t i f i e d tha t the test imony of theEmployer tha t he admit ted to making copies to the Arbi t ra to r wasinaccura te . e t e s t i f i e d tha t Arbi t ra tor Young never asked himi f he asked anyone to make copies only i f he made the copies .This answer of the Grievant ce r ta in ly confirms the argument ofthe Employer tha t the Grievant has a f l i p a t t i tude about usinga customer 's property . This behavior i s unacceptable.

I f ind tha t the Employer has fa i l ed to of fe r suf f i c i en tevidenceGrievant ' s

to sus ta inlength of

the

a terminat ion for an employee withserv ice in the bui ld ing . Therefore,

to a t ime

theam

theeducingGrievant was

terminat ionterminated un t i l

suspension fromhe was re turned

theto work in

mitigat ion.


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I also f ind tha t the Employer has demonstrated t ha t thecustomer has made a good f a i t h demand tha t the Grievant not bere turned to the bui ld ing Therefore , as argued by the Union theprovis ions of Art ic le XIII are appl icable

W RD

1) The grievance i s granted to the extent tha t the terminat ionof the Grievant i s reduced to a disc ip l ina ry suspension.The suspension sha l l be from the date of the terminat ionun t i l the Grievant was returned to work in mit iga t ion

2 The Grievant sha l l be re turned to work in accordance withthe provisions of Art ic le

XIII of the Agreement.

2 The Arbi t ra tor sha l l re t a in ju r i sd ic t ion for the so lepurpose of reso lv ing any disputes tha t may ar i se out of theimplementing of Art ic le XIII .

October 6 t h 2011

Contract Arbi t ra tor

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STATE OF NEW YORKSS:

COUNTY OF NEW YORK

I hereby af f i rm pursuant to CPLR Sec 7507 tha t I am theindividual descr ibed in and who executed th i s ins t rument whichi s my Award

DATE October t h 2011

Contract Arbi t ra tor

Documents

Acevedo, Marcos - Arbitration Award 415727 - 2011-10-06