Westchester Hills Golf Club

7/24/2019 Westchester Hills Golf Club

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XHI IT



AMERICAN ARBITRATION

ASSOCIATION

Voluntary

Labor

Arbitration Tribunal

IN

TH E

MATTER OF

ARBITRATION

between

UNITE

HERE Loca l 100

OPINION

Union

AN D

and

AWARD

FEDERATION

O F CO UN TR Y CLU BS

WESTCHESTER HILLS

GOLF

CLUB

Employer

Re: Termination

of Timothy

Cremin

Case

No

01 14 0000 5354

Before: Prof

Robert

T

Simmelkjaer

Esq

Arbitrator

APPEARANCES

FO R

TH E

UNION

Jane

Lauer Barker Esq. Pitta Giblin

LLP

FOR

T HE E M PL OY ER

Peter M Panken Esq. Epstein

Becker

Green

PC



BACKGROUND

Pursuant

to the

procedure for Arbitration

contained

in

the

collective

bargaining

agreement

“CBA”) between UNITE HERE, Local

100

hereinafter the

“Union”)

and the

Federation

of

Country

Clubs and

its

affiliate

Westchester

Golf

Club hereinafter

the

“Employer”

or the “Club”),

effective

February

2011 Jt. Ex.

1 ),

a hearing was held

on

December 10,

2014

at

the

offices of

the

Employer.

The

purpose

of

the hearing

was

to

arbitrate

the

disciplinary

grievance

of

Timdhy

Cremin

a bartender

at

the

Club.

The rbitrator

derives his

jurisdiction

from

ARTICLE

28, GRIEVANCE

AND

ARBITRATION, Section 28,8,

At the hearing,

the parties were given

ample opportunity to present their

respective

positions, including testimonial

and

documentary evidence.

The

record consists

of

three

3) Joint

Exhibits,

five

5)

Employer

Exhibits

and one

1)

Union Exhibit, with

Employer Exhibit

No.

2 including nineteen 19) subexhibits,

The evidence

so submitted

as well

as

the

arguments

of the parties has been

considered

by

the

rbitrator

in the preparation of

his

award

and accompanying

opinion.

ISSUES: Did

the

Employer have

just

cause

to

terminate

the Grievant by

implementing

the

terms of

his Last

Chance

Agreement LCA’ ?

not, did

the Employer have

just

cause

to

terminate the

Grievant,

irrespective

of his LCA?

not,

what

shall

be

the remedy?



Section 1.1 The Federation

does

hereby recognize

the

Union

as

the

sole

Collective Bargaining

Agent

on

behalf

of

the

employees

employed

by

the

Clubs

in the

classifications

listed

in Schedule A.

Article

6

Discipline

and

Discrimination

Section 6.1 No regular employee

who

has

completed his/her

probationary

period shall be

discharged laid off,

suspended

dispossessed

or

evicted

without

just

cause

Section

6

The Club shall

notify the Union in

writing immediately

upon

such

discharge

layoff,

suspension

eviction

or any other

manner of

termination

of

employment

by

action

of the

Club,

setting

forth the reason

therefore

Article

8 Grievance and

Arbitration

Section

28.1

3

a

grievance must

be

filed

by

the employee

Shop Steward or the Union, within ten

working

days

from

the date

arises Unless

such grievance is

filed within such period

shall

be

considered

waived

Section 28 2 Any

employee may

make

a request

or

inquiry,

or a

complaint to the Club in the

presence

of

the

Shop

Steward

Any

disposition

of

such

request inquiry

or complaint which involves the

terms or application of this Agreement

shall

be

made only

after

discussion

with

the

Business Representative

of

the

Union

or,

in

his

absence

the Shop Steward

and

must

be

consistent with the terms

of this

Agreement

Section

28 3

Grievances under the terms and conditions of the

contract shall

be

initiated by filing a

statement

thereof The

grievance

shall be

discussed

initially between

the Club,

the Shop

Steward and the employee involved in

an

attempt

to

settle same

Section 28 4 Any

grievance

appealed

shall

be submitted to the

Club

manager and

the

Union representave

and shall

be

discussed

initially

in an

attempt

of

settlement

at

a

mutually

convenient

time

between the

Club’s

representative

and

the employee involved,

accompanied

by

his Union representative

and/or

designated

Shop

Steward



Section

285 the

Union

representative and Club manager are

unable

to

resolve

the

problem,

within five

5

days

after

their

meeting in Section 284,

a designated Union representative shall

meet with the designated representative

of the Federation.

Section

2810 The arbitrator

shall have no t power

to

add, subtract

from or modify any of

the terms

of this

Agreement.

STATEMENT OF FACTS

/

HISTORY

OF PROCEEDINGS

The

Club is

a

member owned golf

and

country

club which is

a member of

the Federation

of Country Clubs ‘Federation”

and

is

subject to the

CBA.

The

Grievant,

Timothy

“Ted’

Cremin

“Cremin” , has

been

employed as a

bartender

at

the Club since

or

about the

year 2000. He has

been a

Union

member

for

close

to 35 years

and

is

an

elected

member of

the

18

member

Executive

o rd

of

Local 100 .

He

was

also the shop steward

at the Club

when

the grievance

arose.

Cremin has been

involved in

contract

administration and

negotiations

between

the

Club

and the

Union

and

is an official

signatory

to

the

CBA.

The Grievant

has

been subject to

two

terminations

of

his employment.

The first occurred on December 23 ,

2009

when

Mr. Mark Sheehan, Club General

Manager,

notified Cremin

by

telephone that he

was

discharged for cause,

effective

December 22 , 2009.

On

October

12, 2010,

Arbitrator

Susan T. Mackenzie reinstated the

Grievant

without

back pay/constituting

a

ten

month disciplinary suspension,

stating:

There

was

just

cause to

discipline

grievant,

Timothy Cremin,

but

discharge

is an

excessive

penalty

under

the totality

of

circumstances.



The

Employer

is

directed

to

reduce

the discharge of

Mr. Cremin to

a

disciplinary

suspension

without

pay

and

to

reinstate him forthwith

to

his

former position,

In

addition,

Mr.

Cremin is

to be

placed

on a

Final

Warning that any future

incident of insubordination

or

use

of

inappropriate

language

directed at supervision,

fellow

employees,

Club

members

or

guests

can establish grounds

for

summary

discharge.

C.

Ex. 2 ).

Thereafter,

by

letter

dated

November 16, 2011, the Employees

attorney

in

the instant case,

Peter

M. Panken,

wrote

to

UNITE

HERE

Local

100 President,

William Granfield

advising the

Union

that “the Club

has

suspended Mr.

Cremin

pending

a

decision on whether to

terminate his employment.”

Attached

to the

letter

are

nineteen

19)

exhibits,

including

seventeen

17) Disciplinary

Report

Forms,

a

Meeting

Report

Form

and

a

Union

Grievance Form,

dated 1 20 11 C.

Ex. 3 ).

Based

on

the

November 16,

2011 letter

and attachments, the

Grievant

subsequently signed a Last Chance Agreement dated

December

28 , Z1

1

which

states:

Mr.

Cremin

“G rievant”)

was

on

disciplinary

suspension

pending

a

decision whether

to

terminate

his

employment

which

the Union

grieved

on his

behalf

Grievant

and

UNITED

HERE

Local 100

“Union”)

have

agreed

to

enter

into

this

Last

Chance Agreement in

settlement of the grievance.

1 Grievant is

suspended

without pay

or

benefits until April

1, 2012,

based upon the

matters

raised

in

a

letter

dated

November 16,

2011

to

the

Union and

the

attachments

thereto

attached

as

an

exhibit

to

this

Last

Chance Agreement .

Grievant waives and releases

any

claims

with

respect to

the disciplinary action taken by the

Westchester Hills

Golf

Club “Club”) with respect to the matters

referred

to

in

the November

16,

2011

letter and

this

disciplinary

suspension.

2.

Grievant

has

agreed

to

this

last chance final

warning and agrees

that if he engages

in

any

infraction including, without

limitation,

any

item

referred

to

in the November 16,

2011 letter to the

Union,

which



is attached

as

an

exhibit

to

this

Last

Agreement

following

his

reinstatement, the

Club has the

right to

terminate his employment

and the

only

issue which

can

be

submitted to arbitration is whether

or not

the

Grievant

had

in

fact committed the infraction.

3.

Grievant

acknowledges that he was insubordinate

to

the

Club

Manager and

specifically agrees that

he will

not

be

insubordinate to

the

next

Club Manager or

any supervisor following

his reinstatement

nor

will

he do

anything

to

prevent

the

Club

from

raising issues with

the

Union

Business Agent or any other

Union

official.

4. Grievant

specifically agrees

that

he

will not

discuss any perceived

problems

in his

job

or his

relationship with

the Club

with anyone

except

his manager or his supervisor, the Club President,

the

Chair

of the Club House Committee or his Union.. .

The

Club

held

a

bereavement

luncheon

on August 8,

2013 for

Mark

Martino,

a

Club Member, following the funeral mass of his mother. Cremin

was

the bartender along with

a

parttime bartender ‘Bernie ,

who

was

also

working

the event.

The

event was

attended

by

approximately 200 guests and

the

bar

was

busy.

Cremin

worked at the

service

end

of the

bar providing

drinks

to

the

servers who

were

waiting on guests

at

tables, as well as worked

half

of

the bar

serving

guests

who ordered

drinks at

the bar. The restaurant Manager,

Helio,

was also

present

during the event,

Following the bereavement luncheon, Martino sent an

email

to the

Club

Board on

or

about

August 13,

2013, complaining about the behavior of

the

Grievant. According

to

Martino,

Cremin hter

alia, “was inhospitable, rude

and

insulting.” C. Ex. 4 ).

The

Club

General

Manager, Jack

Hrad,

after

receiving the

Martino

email

called Cremin

at

home

on

August

15, 2013 and

suspended him from his job.

Subsequently,

the

Grievant was terminated by

letter

dated

December

7,

2014



7

sent

to Jean-Homer Lauture, Local

100

OrganIzer...

Jt. Ex.

3 ). The termination

letter

does no t state

the

reason

for

the

Grievants termination,

bu t states:

‘the

Golf

Club

has decided that Mr.

Cremin’s

conduct warrants termination,

especially in

view

of

the

ruling

in

his

prior

arbitration

and

the

violation of

his Last Chance

Agreement’

A Grievance

Form dated December

10, 2 3 was f iled by the Union

on

behalf of

the

Grievant Jt Ex. 2 ).

CONTEN11ONS

OF ThE PAR11ES

Emoloyer

Position

The Employer,

which

has

the

burden

of

proof

In

a

disciplinary

arbitration,

maintains that the Grievants termination should be upheld based on his Last

Chance Agreement dated

December

28 2011

‘setting

the grievance with his

second final waming.’ Given the

condition

in his LCA that ‘If

he engages

in any

infraction Including

without

limitation

any

item referred to

in

the November 16,

2011 letter

to

the Union following his reinstatement..

the

Employer

argues that

Cremin’s

inappropriate conduct

at

he

bereavement luncheon on August

8,

2013

constitutes

a

violation

of

his LCA

and

provides sufficient

grounds for

his

termination.

With

respect

to the

Grievants credibility, the Employer refers to he

findings of Arbitrator Mackenzie during

the

Grievants

prior

hearing

as

follows:

‘On

cross

examination

Grievant

testified that he ‘never’

raised

his

voice

or

swore

at

Mr.

Sheehan

[the

then

manager

who

Grievant

called

a

thief

in this

arbitration

hearing] ‘as long as

have been

woridng

with

him’

and

he

denied

calling Mr. Sheehan

a

‘fucldng

prick.’ Grievant acknowiedged

that

the botte of

wine

he

had

opened was behind the bar with wine

In t bu t denied

interfering

with

Mr. Sheehan’s

access

to the wine

because

Mr.

Sheehan

had



8

the

‘option’ of going

to the

wine

closet

Grievant

also claimed

that

while he

did

have

a few

drinks he

was

not drunk

at

the party.

Grievant’s denials

of

directing

profanities at

Mr. Sheehan or

of

physically

or

verbally

attempting

to

stop

him from

access

to

the

opened

wine

on

the bar shelf

are

not credited in

light

of own

equivocation

in testimony

as

well

as

other record

proof.”

According

to

the Employer

“[w]hat is

credible is the gruff

demeanor

and

combative

responses

which

Grievant

displayed

at

the hearing

all

of which

are

consistent with his prio r

misbehavior

as outlined

in

Arbitrator Mackenzie

ruling

and

Mark

Martino’s

complaint

immediately

after the luncheon

In

addition

Grievant’s

attitude

towards

his prior

Manager

as

well

as

his defiant

attitude with

respect to

the offer of

reinstatement he

agreed

to a

second last

chance

opportunity

are

all consistent

with Grievants

misconduct

at

the

post

funeral

mass

luncheon ”

Testimony

Mr. Mark

Martino “Martino” ,

Club Member

testified

that on

August

8,

2013

a

bereavement

luncheon was

held

at

the Club

following the

funeral

mass

of

his

mother Following

the

luncheon he sent an

email

to

the

Club

Members

describing

a

“series

of

situations

which had

occurred” wherein “Teddy

was rude

and

disrespectful in the

way

he addressed

his wife, father

son

brother

and

friends present ” C. Ex.

4 .

Martino

testified

that

his wife to ld

him

that

when she went to get

drinks, the

Grievant

asked

her “How come

she

never

smiled.”

Martino claimed

that his

father

told

him that

when he

went

to

the

bar

and

ordered

three

lemon drop

martinis,

Ted told

him

that

he could

not

make lemon

drop martinis

but

the back



9

bar made the martinis.

Martino recalled that

his

son “an

Army Special

Forces

soldier surrounded

by

guests

asked for a glass

of wine only to

return visibly

upset”

due to

Cremin’s

“totally

disrespectful and

insulting treatment” He

wrote

that Ted

had

responded

“testily”

to

the request.

Martino

further claimed in his

em il

and testimony

that

a

friend

had

told him

that he

was

trying

to

get Cremin’s

attention to order a

drink for another

friend when Ted

told

him

to “just

worry about

himself”

Martino

also

claimed

in

his

email that

the Grievant “was

berating Pearl for

some

unknown infraction

while

a

packed bar

looked on” Martino testified

that he

heard the

Grievant raise his voice

when

Pearl the waitress came

for

drinks As

Martino put

it couldn’t

understand Ted yelling

at

Pearl.

Some

of

the people

at

the bar

were

commenting

to

each

other

“What was that all

about?”

n Martino’s

recollection

the

complaints

of

the

guests focused

on

the “poor

service and

w iting

a

long time to

get

drinks” He

reiterated

that his

father

and

son “were

spoken

to

in

a

disrespectful manner”

On cross examination

Martino

acknowledged that

the

email

is the

only

record

of his

complaint.

He

did not follow up despite

the 20 40 complaints he

received

Martino

did

not witness any of the

interactions with the

Grievantthat he

reported in his

em il Martino

couldn’t

recall the

amount

of

time he spent at the

bar. He

was

the

“primary host

circulating

among the guests”

He

acknowledged

that

approximately

150

to

200

people attended

the

event

which lasted

until

5

pm.

There

was an

open

bar during the entire

period



of the event

although guests

could

be

served

either

at

the

tables

or

the

bar

The

Grievant was

the only

bartender fo r the

most

of

the

event

with

approximately 20

people

at

the bar

at

all

times

Martino wrote in his email

that “[t]he

crowd was too

big. [and]

Ted

moved

too

slow.”

Martino

acknowledged that he

was neither

present

when his

son

requested a

glass of wine nor

when his

father ordered

the

lemon

drop

martinis

Martino acknowledged that the

crowd size

may

have

contributed

to

delays

in the

service He

denied stating that “It’s

time for Ted to

retire”

or

being asked

to

give

a

written statement

regarding his

complaints He

did

write in his

email:

Ted

“has

to

go.”

On

redirect

examination

Martino explained a sentence

in

his

email

namely

can’t tell

you

many guests asked

me

‘What’s wrong

with the

bartender? ”

indicated

that

several guests

had

complained

to

him.

Mr.

Stephen

Till, General

Manager

testified

that the

handbook entitled

“Our Mission” was

used

to define

the

behavioral expectations for

all Club

employees

Although he was not

present

when

Cremin

was

hired, when

the

management company

for

whom

he

has

worked

as General

Manager

took

over

management

of

the

Club in

2012

the handbook was

distributed to

all

new hires

C. Ex. 5 ).

He did

not

send a copy

to the

Union.

Union Position

The

Union,

on the other hand

contends

that “the

socalled Last

Chance

Agreement produced

by

the employer at the

arbitration but

unsigned

by

the

Union

and

never

discussed with

the

Union by

the Club is

void,

invalid and



unenforceable ” t further contends that the terms of the LCA “do

not provide

a

permissible

basis

or just

cause to

terminate Cremin.”

The

Union further contends

that

the

Club provided

“no

non hearsay

testimony establishing any

misconduct

or

any

facts

that

would

justify

the

termination

of

a long term

employee.’ Absent competence evidence or a record

of progressive

discipline

notwithstanding the Mackenzie Award and Mr.

Panken’s

November 16. 2011 letter, and

given

the

Grievanfs credible

rebuttal

of the

hearsay

testimony the

Union

argues

that Cremin “must be reinstated with

full

back

pay

and benefits ”

With

respect

to

the

LCA, the Union argues that as

sole

and

exclusive

collective

bargaining

representative with the exclusive

authority

under Article 28

to

settle and dispose of grievances and

complaints

the

Grievant

was neither

authorized

to

represent himself

no r was the

Employer

permitted

to

deal

directly

with him

in

the

adjustment of

grievances.

In this regard

the

Union cites

case

law

establishing

jirj

“[a]n employer

who

chooses

to meet

with an

employee

to

adjust a

grievance must give the Union

the

opportunity

to attend

that

meeting.”

Top Mfq.

Co.,

249

NLRB

424 1980 . Despite the fact that

Cremin

is

a

shop

steward the Employer

was

still bound

to

its obligations under

the CBA to

respect

his

rights of Union

representation. The Union argues as follows:

“In this

case

the

Club

never

informed

the

Union

of

any

meeting with

Mr. Cremin regarding the Club’s

intention to terminate him in

late

2011 and made no effort to

include

the Union

in

the

discussions

of

the

proposed

discipline. The letter

from

Mr.

Panken

to

the

President of

the

Union

is

inadequate to

support the enforceability

of

a

last chance agreement

that followed that

letter

by

more

than one

month and as to

which there is

no

evidence the Union

had

any

knowledge

or

notice.

Mr. Cremin

signed

the last

chance

agreement

because

General Manager

Sheehan

told

him

he

would

be fired i

he



12

did

no t

do

so .

heUnion however

never

signed

the

agreement and

never

even received

a copy

of it

from

the employer

despite

the fact

that Mr. Panken

had

spent considerable time

in his

November 16,

2011

letter advising

the

Union

President

of

the

various

complaints

the

Club had with

Mr.

Cremin . Furthermore

and

most

Important

Is

the

fact

that the agreement

provisions

are

utterly

confrary

to

the

collective bargaining agreementwhich

gives to

all employees

the

right

to be free from discipline except for just cause Mr.

Cremin

was

in no position

to

voluntarily

and

intentionally relinquish that right

and

the

Union

simply did

no t agree

to

do so .

Therefore, based

upon the

parties’

collective bargaining agreement and federal law,

the

last

chance agreement Is void,

Invaild

and

unenforceable and

cannot provide

a

justification for Mr. Cremin’s

termination.’

In

addition, the Union

argues

that the

Employer

did no t have just cause to

terminate

Cremin

underArticle 6. heEmploye?s reliance

on

hearsay evidence,

specifically the testimony of Martino

its sole

witness is

deemed insufficient to

terminate

a

long-term

employee. Martino

did

no t have first-hand

knowledge

of

the

complaints

he

reported

In his email complaints

that were

later

rebutted

by

Cremin’s credible testimony.

Moreover, the Employer did no t

provide

the

Grievant with his fundamental

due

process

rights

as

contained

in

the

CBA.

he

Employer

did

no t conduct’a

neutral thorough

investigation

by

speaking

to eyewitnesset’ There

is

an

inadequate record of progressive discipline

set

forth in the November

16, 2011

letter in

that

with

the exception of possibly three incidents

Exhs.

5,

10 and 11 ,

there

is no

evidence that the Grievant

received

copies

of

these notices. ‘Ddiibit 3

indicates that he refused

to

sign the

form, bu t there is no evidence

that

he

received

a

copy

of

that notice.’

The

Union

further argues

‘Moreover,

the

disciplinary

notices refer matters that have

no

connection or relationship

to

the

acts upon which

the

Club

has

based his

termination

and

they

refer

to

alleged events

that

took

place

two

to

three years prior

to the

termination of Mr. CreNn in

December

of 2013—far too

long ago

to

be

relied upon

as



13

progressive

discipline

for this

termination.

Matters

such as

alleged

slamming

glasses into the

dishwasher which may cause breakage

Exh.

3

or

not cleaning

the

bar

adequately Exh.

6

have

no

connection

to

alleged

rude and

disrespectful communications

with

Club

members and guests. Progressive

discipline requires

such

nexus in order

to

ensure

that the

employee

involved

is

aware that

specific

conduct

if continued will

result in

additional discline

not

simply that anything

and

everything might cause

the Club

to

terminate

an

employee.

Finally, the incident

involved

in the

Opinion

and Award

of

Arbitrator MacKenzie

also cannot

support the

termination

of Mr.

Cremin

in this

case.

The incident in”olved

in that

hearing

was an interaction between

Mr. Cremin

and the then

General

Manager

Sheehan.

It is clear that

the

incident

arose in

part out

of

the

fact that

Mr. Sheehan

and

Mr. Cremin

were

long

time acquaintances

and social friends.

Mr.

Sheehan

has left

the

employ

of

the

Club

and the

alleged

events

underlying

the

termination

in this case do not

involve similar

conduct

by

Mr.

Cremin

Thus

that

award

cannot

provide the

progressive

discipline

underpinning

required

to

sustain

a

termination of Mr. Cremin,”

Testimony

The

Grievant

Timothy

Cremin “Cremin” , testified

that

he has been

a

member of

Local 1 00

for

35

years

and a member

of

its 18

Member

Execulve

Board.

In

his

capacity

as

shop

steward

he

is responsible for contract

administration.

On

August

8,

2013—

the last

day

of

his employment—

the General

Manager Jack Hrad,

called

him in and

told

him that he

had

received

a

written

complaint.

Hrad

then

gave him

five

reasons

for his termination

which

Cremin

could not

recall.

During

a subsequent

meeting

with

Jim Rice, Union

Vice

President in attendance

he learned

that the complaint

pertained to

the

bereavement

luncheon which was

held between 11:30 am. and

5:00

p.m.

on

August

8,

2013.



14

During

the

event

Cremin

and

a part time bartender

“Bernie” served guests

at an

open

bar

He

never

had a

conversation with Martino

but did witi

his

wife

“She

says to

me ‘You never are

smiling ’

i’m

accused of not

smiling

joking but

not

disrespectful. h s her act

the

not

smiling

comment. At the end of the

night

Ms

Martino

gave me a big

hug

and said ‘Thank

you”

Cremin

did not recalled

Martino’s father ordering

three

lemon drop

martinis

“He

was

sitting at

a

table. He was ignored

by

the other

guests. He

asked for

a

vodka

expressed

my condolences. gave him a second vodka.

That was

it He never

ordered

lemon drop

martinis ”

Cremin testified that “Bernie

had

asked him

ho w

to

make this

drink

for three

ladies.

told

him we had all

the

ingredients

at

the

bar

Regarding

the friend of Martino

who

asked for

a

beer the Grievant

testified

that

“the

gu y was hemming about what

to

have

and

served

him

a beer ”

“Pearl the

waitress speaks

very

low

told her to speak up She

asked

for three Rieslings.

She’s an old lady told her the bar

does

not

have Rieslings ”

“The son asked for

wine

He

asked for Santa Margherita told him we

don’t

serve

that

wine

by

the

glass.

gave

him

a

menu

showing that

the wine

was

sold by the

bottle He said ‘never

mind’

no

big

deal ”

Hello

did

not tell him

about complaints.

Cremin

testified that he signed the

LCA

on

12/28/11

because General Manager Sheehan told

him

he would

be

fired

i he

didn’t

do

so.

knew

Sheehan was

going

had

a few

weeks vacation

as

part of

my

non work time

that we

covered.

stop

working in August 2013.

have

not

worked

since.

collected

unemployment

insurance

for s ix months.



On

crossexamination

Cremin testified

that

his

efforts to

seek

work

were

of

no

avail

because

“A

lot

of

places

went

out of

business

don’t

do

Saturday

night

parties

There

is nothing

out

there

went

to

the

Union They

had

nothing

for

me ”

He

did

not

apply

for

employment

opportunities

after

August

2013

was

waiting for

my arbitration

hearing ”

Cremin

denied

having

an y authority to

settle

grievances He

would

discuss

grievances within

the

Club

and

if

no t

resolved

would

call

Jean

Lature

Local

10 0

Organizer

Regarding

the

August

2013 bereavement

luncheon

Cremin

denied

raising

his voice or

telling other

employees

that

they

were

wrong

He

could not

recall

ho w

long

the

guests

were

waiting

for

drinks

but

noted

that the bartende

who

was

assisting

him

couldn’t

make

certain

drinks As

he

pu t

it “They

wanted their

drinks

yesterday

We

were

overwhelmed ”

The

Grievant

admitting telling

Helio

that the guests

“weren’t acting

like it

was a

bereavement

It’s

my place

to judge

people

to

see

if

they’re drunk

and

might get a

DWI ”

Cremin testified

that

he

did

not

read

the LCA or

speak

to a

Union

official

about

it went

on

vacation

two

weeks

before Christmas

and three

weeks

after Sheehan

said ‘If

yo u don’t

sign this

you’re fired ”

According

to

Cremin

never had a

problem in the

Club

until

Sheehan arrived

The Board

didn’t fire me

Sheehan fired me

He said

“Your

services

are no longer

required ”

Referring

to

the

Disciplinary

Report

Forms

attached

to

the

November

16

2011

letter

Cremin

testified that

he

never

signed the

letter

or

saw

the

forms



With

respect to

the 11/14/10

infraction wherein

Cremin purportly told

a

member that he was owed

a

tip, the

Grievant testified that he

did

not

receive the

notice

C.

Ex,

3/

Ex, No,

5). He

denied

the allegation

contained in the

6/2/11

Disciplinary

Report that he

took

food out of

the refrigerator.

C.

Ex.

3/Ex.

No,

1).

“ never saw

the

write

up”

Similarly

denied

was an

allegation

that

on

5/20/14

he was sitting on

the p tio

speaking

to a

guest

instead of

m king

“mulligans

for

twilight

golf.”

C.

Ex.

3/Ex.

No.

10).

Finally,

on redirect examination a

complimentary

letter from

a

members

daughter

was received into

evidence.

U.

Ex. 1 ).

DISCUSSION

Considering the

evidence in its entirety

the

rbitr tor is not

persuaded

that

the Employer has

met its

burden

of proof

by a

preponderance of

the

credible

evidence.

The

rbitr tor not only finds that

the

Last

Chance Agreement

that the

Grievant

Timothy

Cremin signed

on December

28,

2011 was invalid and

unenforceable under

the parties’

CRA

but

the Employer

also

failed

to

establish

that

t

had just

cause to

terminate

the

Grievant’s

employment on

other grounds

pursuant to

Article 6.

A.

t

is undisputed

that the

Grievant

signed the LCA on

12/28/11 without

the

knowledge or

participation of Local 100

of UNITE

HERE, the

sole and

exclusive

collective

bargaining

representative of

Grievant

and

the

only

entity

authorized

under Article 28

of

the CBA to settle

and

dispose

of

grievances

and

complaints.

lthough the

LCA

states that

“Grievant

and

UNITED sic)

HERE

Local

100



17

‘Union’ have

agreed

to

enter into

this Last

Chance Agreement

in settlement

of

the

grievance” there is

no evidence that

the

Union

had

any role in

the process

which resulted

in the Grievant

signing the

document ostensibly

under duress.

The

LCA

is

neither

signed

by

the

Union nor

did

the

Unicri

receive

a copy.

Moreover

Article 28

provides

that

any disposition

of

a complaint

“which involves

the terms

or

application

of

this Agreement

shall

be made

only

after

discussion

with

the

Business

Representative

of

the

Union and

must be

consistent

with

tie

terms

of this Agreement.”

The Employer has

relied

upon the

Grievant’s role

as shop steward

his

membership

on

the 18

member

Executive

Board of

Local

100

and

role

as

a

Union

official

in

negotiating

and administering

contracts

with

the

Club

as

sufficientfor

him

to

negotiate

the

terms

of

the

LCA and

“waive and

release any claims

with

respect to

the

disciplinary

action

taken

by

the

Club

with

respect

to

the matters

referred

to in

the November

16.

2 11

letter

and

this

disciplinary suspension.”

However in the

Arbitrator’s

opinion

no provision

of the

CBA

authorizes

the

Grievant

in

any

of

his capacities

to

settle

his own grievance

or

enter into

an

LCA

without

the

representation

of

the

Union

Article 28

sets

forth

a multi step

“definite

and complete

guides

and

procedures

fo r

the

processing and

settlement

of

grievances as

defined herein ”

stating

that

at

Step

One

in

Section

28.2

that

“Any

disposition

of

such

request

inquiry

or complaint which

involves

the

terms

or

application

of this Agreement

shall be

made

only after discussion

with the

Business

Representative of

the

Union or.

in

his

absence the

Shop Steward

and

must

be

consistent

with the terms

of

this

Agreement.”

Section

28.4

provides

that



‘Any

grievance

appealed shall

be

submitted

to

the

Club

manager

and

he

Union

representative

and

shall

be

discussed

initially

in an

attempt of settlement at

a

mutu lly

convenient

time

between

the Club’s

representative

and

the

employee

involved,

accompanied

by

his Union

representative

and/or designated

Shop

Steward”

Section

28.5 provides

that “

the Union

representative

and Club

manager

are

unable to

resolve the

problem.

within five

5

days

after

their

meeting

in Section 28.4,

a

designated

Union

representative

sh ll meet

with

a

designated

representative

of

the Federation.”

Given

the foregoing

steps,

requiring

representation

of the

Grievantat

each

step by a

nion

official,

there

is

no

contractual

basis

upon which the

Employer

could have

met

with

the

Grievant

alone

and

entered into an [CA

with

him

absent

nion

representation.

Although

a

shop

steward

may represent a

grievant at

Step

One and participate

in

a

discussion

with

the

Club.

it

can

be

clearly inferred

that

when

the

shop

steward

is the

Grievant.

as

here, he

is

entitled

to

representation

by

another

nion

official,

namely the Business

Agent,

who

would

continue to

represent him

i the

grievance

is appealed to

the next step s .

Were

the

Employer’s

interpretation

of

the

CBA

to

prevail, the

Grievant here

would have

fewer

due

process

rights under

the

GrievanceArbitration

procedure

that

the

employees

he represents

as

shop

steward

an outcome

the

parties

undoubtedly

did not

intend or

contemplate.

It

is

well

established that processing

and

settling

grievances

is the

exclusive

province

of

the

nion

and

no

individual

member,

irrespective

of

their

nion title,

can

preempt

that

function

even

on their

own behalf.

While the nion



19

could

enter

into

an LCA

and voluntarily

and expressly

exclude access to

the

grievance-arbitration

procedures

as a

term

and

condition

of the

employees

reinstatement,

there is

no

evidence the

Union

did

so

in this

case.

Steelworkers Local 1165—

Luken Steel

Co. 969

F2d 1468

3d

Cir.

1992 ”Adhering to

the

strong

presumption of

arbitrability the

court

concluded

that

in the

absence of an

express exclusion,

a

last-chance

agreement

is

arbitrable

when the

underlying dispute is

arbitrable, unless the employer

produces

‘strong and

forceful’

evidence

to exclude

from arbitration the

underlying

question whether

the employee

in

fact

violated the

last chance

agreenent.” .

The Union

has cited

persuasive

case law to

the effect

that

an

employer

cannot

engage

in

settlement

discussions

with the

Union

member without

the

presence of

a

Union official or meet

directly with an employee

and

have

the

employee

sign

settlement

and release

form such

as

that contained in

Paragraph

No.

of the LCA.

Apropos

of the

instant case is

the

NLRB’s decision in

Van

Can Co .

United

Steelworkers of

Am.

Local

5632,

AFL-CIO 304

NLRB 1085 1087

1991

where

the

employer offered

reinstatement

to an

employee provided

he

signed

a

last-chance

acknowledgement without

any

Union

participation.

Although the

shop

steward had been

informed

of

the agreement

and was

present at the

meeting for

signature, the

prior direct dealing

with

the

member nullified

the

LCA.

Unlike the cases cited

by

the Employer

such

as

Horvath v. Banco

cialfgrt gs

S.A.

461 Fed, Appx.

61,63 2d Cir.

Feb. 16

2012

where

the court

found that

the plaintiffs

failure

to

read

a

document

was “gross



negligence’

the

reader

in

the instant

case

was

a

Union

member

entitled to Union

representation

and

Union

review of

any documents

he signed,

including

the

LCA.

The

LCA

signed

by

Crernin is

further

negated

by

evidence that

he

was

coerced

into

signing

the

document by former

General

Manager

Sheehan.

Cremin

testified

credibly that

Sheehan

told him that

unless he

signed

he would be

fired.

Moreover,

Cremin acknowledged that

he had no

authority

to

settle

grievances

and

would routinely

refer

these matters to Organizer

Lauture.

Insofar

as

the

Employer’s

assertion

that the

Union

waived its

right

to

challenge the

LCA under

Section

28.1 3)

is concerned, the

record evidence

indicates

that

the

Union

had

neither

knowledge

of

the

LCA

nor

received

a

copy

when

was

entered into

with

Cremin

a

month after

the

November

ii

2011

letter

was sent

to Union

President Granfield.

including

seventeen

Disciplinary Forms

attached

to

the

letter upon

which

the

[CA

was based.

With

the

exception

of

possibly

three

incidents

C.

Ex. 3/Exhibits 5.

10 and

ii

the

Grievant

testified

credibly

that

he

did

not

receive

copies

of

these disciplinary

notices

used by the

Employer to

justify his termination.

Clearly, the

negotiation

of

an

[CA

directly with

a Union

member,

without

the

notification

or involvement

of the

Union

undermines the

terms and

conditions

of

the

CBA,

particularly

its

Grievance-Arbitration

provisions.

oth

the parties

CBA

and

federal labor

law

render

the

[CA

void

and

unenforceable.

B.

Just

Cause

In

applying

the just

cause

standard.

the

Arbitrator

is

generally required to

determine

at

least five factors

1

the

Employer

conducted

a

fair

and

impartial



investigation

prior

to

issuing the discipline

including an opportunity for

the

Grievant to

give

his

side

of

the story;

2

the

Employer has

proven by a

preponderance

of

the

credible evidence

misconduct

or dereliction of

the duty

upon

which the discipline

was

grounded;

3

the Employee

knew

or

should have

known

of

the

existence

of

a

pertinent rule that

was

reasonably related

to

the

business of the

Employer;

4 the

Employee knew or

should have

known the

possible

disciplinary

consequences of

the

violation of the rule;

5

that

the

penalty

administered

was

proportional to

the offense

and not for any

arbitrary or

capricious reason or

indicative of

disparate treatment

Additionally,

implicit in

the concept

of

just cause

in

the

parties’

CBA is

that

the

employee

be

given

a

fair opportunity to

correct his or her conduct or

performance

and that the

penalties

for

noncompliance

be

administered

incrementally or

progressively

before

the

ultimate

penalty of termination

is

imposed The

exception

to

the

principle of progressive

discipline

is

misconduct

that is

sufficiently egregious or

behavior such that

the Grievants

continued

presence

on the job

constitutes

n

unacceptable risk or danger

to

persons

or

property

Contrary to the

principles

of

just

cause

delineated above

the

Employer

re lied on a complaint

from

a

Club

member

that

constituted

hearsay

in

its entirety

did

no t

conduct

an

investigation of the

allegations

made in the

letter of

complaint

and did

not

give the

Grievant

an

opportunity

to

provide

his

side of the

story

before

imposing discipline

Moreover

there

is

an inadequate

record of

progressive

or

corrective discipline

in that

the

Club did not

bring

most

of

the

infractions upon



22

which it

relied

to the

Grievants

attention

and there is no

nexus between the

unproven

infractions described

in

the

disciplinary

notices

occurring

two three

years

earlier

circa 2010 2011

and

used as the

grounds

for

the

Grievants

termination in

ecember2013.

First

the

testimony of

Employer witness Mr.

Martino

consisted

wholly

of

hearsay

He

had

no

first hand

or personal

knowledge

of

the

complaints he

reported

and

that

were

purportedly made

by

guests

at

his

mothe s

bereavement

luncheon.

None of

the

complainants

cited in

Martincls

email testified at

the

hearing. Martino

recounted complaints

that

Cremin was disrespectful

to

his

father

when

he

refused

to

make

three lemon drop

martinis dismissive

of h is

son

when

he

ordered

a glass of

wine

asked his

wife “why she

never smiled ” and

told

a

Mend

trying

to get

a

drink for another

guest

to

“worry

about

himself.”

Not only were none

of

these

complaints

validated by

the

ClulSs

investigation

Cremin credibly

denied

each

allegation

and provided a

plausible

explanation.

He testified that

Martino’s

father didn’t order

the

lemon drop

martinis

bu t rather three

ladles ordered them

from Bernie

the

part time

bartender

Cremin

told

Bemle who didn’t know

how to make the

drinks

that the ingredents

were

available

at the

bar.

Cremin

testified

credibly

that

Martinds son

had

ordered

a

glass

of

Santa M argherita

wine

and

he

had

advised him

that the

Club didn’t sell

this wine

by the

glass Once

he gave

Martinds

son

a

menu

showing

him

that the

wIne was sold by the

bottle

he

changed his mind.



Cremin testified

credibly

that

he

had

a

joking relationship

with

Martino’s

wife where

she jokes with him about not

smiling

a

lot According

to

Cremin

at

the

end

of the event

she gave

him

a

“big

hug”

As the Union correctly

notes

Martino’s version

supports

the Grievanfs

version

of the event

because

Martino acknowledged

that

“his

wife

is

always

smiling whereas Cremin

admitted

that

he

has

a

reputation

for

not

smiling”

Cremin denied

yelling at Pearl

the

waitress

but rather

testified that

since

Pearl “speaks

very

low”

and the bar was

crowded with guests seeking

drinks

he

may have raised his voice

to

overcome

the crowd

noise

when

she asked

for

three

Rieslings

The

rbitrator

deems noteworthy the

fact

that Pearl neither filed

a

complaint nor

testified at

the hearing

The Employer

did not

give Cremin

or the Union

notice

of

his suspension

on August 13

2013

The Union received

a

written

notice

of the Grievanfs

termination

dated December

7

2013

without

the

Employer

stating

the

grounds

upon

which

his

termination

was based

The

Employer

cannot reasonably

rely

on the November 16 2011 letter

sent

to

the Union

President

as

the

basis

for his termination

because

the

Grievant

did not

receive

a copy

of

several of the

Disciplinary

Reports

attached to the

letter

With the

exception

of three incidents

Cremin

challenged at the hearing there is

no evidence

that the

Union o r the

Grievant were apprised

of

his alleged

misconduct Unless the

Grievant

was informed of

the infractions they

cannot be

deemed

conducive

to

progressive or corrective

discipline

since he

could

not

correct

conduct

about

which he had

no

knowledge



24

In

ddition

the infractions

cited

in

Disciplinary

Report Forms

attached to

the November 16 2011 letter pertain to matters unrelated to the

instant

charge of

being “rude

and inhospitable

to a number

of

guests

and the members

f mily”

Assuming the complaints in

Martino’s em il had

been

proven a period

of 2 3 years

would

have

elapsed

without the Grievant

having

committed

similar

misconduct

thereby

diminishing

the grounds for his termination

based

on a

single non egregious

incident.

No nexus was established between

such alleged

incidents

as

slamming drinking glasses into the dishwasher speaking to Club

members

or guests

preparing

incorrect drinks t king food

from

the refrigerator

and not wearing a

tie

and

the incident for which

he was

purportedly

terminated

namely

disrespecting

Club

members and

guests.

the

Award of

Arbitrator Mackenzie she

placed

Cremin

on

a

“final

warning”

for

his

insubordination towards

General Manager

Sheehan. The

Grievant

had

“refused to follow a direct

order

by

his

General

Manager and he

cursed

at physically blocked

and

threatened

the

General

Manager

in the

presence

of staff” The incident occurred

at

the 2009 employee Christmas

Party

and the

award

was issued

in October 2010. Notwithstanding

the

plethora

of

infractions

the

Grievant allegedly incurred since October 2010 the

vast

majority

of which

Cremin had

no notice

the Employer has

no record of

comparable

misconduct

to

which

the

Final

Warning would

be

applicable.

Considering

the totality of the

evidence

adduced by

the

Employer

including the unenforceable LCA nd

the Disciplinary notices most

of which were



unbeknownst

to

the

Grievant

and the Union, the Arbitrator

finds

no just cause

for

the

Grievant’s

termination.

As

a

long term

employee

who

testified

credibly and was

denied Union

representation Cremin is entitled to a make whole remedy. He shall be

reinstated

to his position

as

Club

Bartender

effective immediately with full back

pay

less

unemployment

compensation benefits

seniority

credit and

commensurate fringe benefits.

NOW THEREFORE as

the

duly selected Arbitrator, having

heard the

evidence presented hereby issue the following:

AWARD

1

The

Employer

did not

have

just cause to

terminate

the

Grievant

Timothy

remin

by

implementing

the

terms of his

Last Chance

Agreement.

2 The Employer did no t

have

just

cause to

terminate

the

Grievant

irrespective of

his LCA.

3 The

Grievant shall

be

reinstated to his position as a bartender at the

Westchester Hills

Golf

Club, effective immediately

with

full

back

pay,

less

unemployment

compensation

benefits seniority credit and

commensurate fringe

benefits.

4

The Arbitrator

shall

retain

jurisdiction

to

address

any issues

that

may arise in the

implementation

or

interpretation of the

remedy

portion

of this

award.



January28

2015

RobertT

Simm kjaer

ST TE O F NEW

YORK}

C OU NT Y O F

NEW

YORK} SS

hereby affirm

on

my

oath

as

arbitrator

that

m

the

person

who executed

the

for going instrument

which

is

my

award.

January28 2015

RobertT

Simm kjaer



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Documents

Westchester Hills Golf Club