Almanzar, Humberto - 2001-12-28

8/13/2019 Almanzar, Humberto - 2001-12-28

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~ ~ ~ ~ ~ = = ~ ~ ~ XN THE M TTER OF ARBITRATION BETWEENPHIPPS HOUSES SERVICE INC. ANDLAMBERT HOUSES REDEVELOPMENT CO

Employer ARBITRATION AWARDand

LOCAL 32BJ SEIUUnion x

APPEARANCESFor The Employer Kevin McGill.. ............... norney

Colleen McAuliffe ..........VP Human ResourcesJacqueline Aleman .......... Property Manager

or the Union Amy Lynne Jtzla .............. AttorneyRoberto Vasquez ............. DelegateElizabeth Cordero ............ TranslatorAgustin Carela ................. HandymanRichard Liviano ................ HandymanHumberto Almanzar.. ........ Grievant

The above named Union and Employer are parties to a Collective Agreement thatprovides for the Arbitration of unresolved disputes that may arise during the term of theAgreement. ln accordance therewith nd with the consent ofboth parties the undersigned wasdesignated as Arbitrator to hear nd determine the following issue in this case as set forth in thesubmission agreement dated November 15 2001.


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I s sues :

Whether t h i s ins tan t gr ievance i s a r b i t r ab le pursuant to the terms of theCBA?

Did the Employer have j u s t cause to te rminate Humberto Almanzar? And i not ,what sha l l be the remedy?

The hear ing was held a t Local 32BJ, SEIU loca ted a t 14 0Huguenot St r e e t 1 ew Rochel le , ew York, on November 15, 2001, a twhich t ime both pa r t i e s appeared wi th t h e i r witnesses and proof .Ful l oppor tuni ty was af forded the pa r t i e s to be heard, offe revidence and argument and to examine and cross examine witnesses .Witnesses were duly sworn. At the conclus ion of the hear ing bothp a r t i e s s t a t ed they had presented t h e i r respec t ive cases in f u l l .

W R D

On the subs tan t i a l and c redib le evidence of the case as awhole, the Arbi t ra tor f inds, despi te the i ssue of a rb i t r a b i l i tyand the Grievan t s a l leged noncompliance with company ru le s anddi rec t ives regarding subs tan t ia t ing h i s absence, tha t based uponthe unique fac ts and circumstances present in t h i s ins tan tmat ter , the Grievant , within 72 hours of rece ipt of sa id Award,sha l l be re ins ta ted to his former pos i t ion without back pay orbene f i t s .

Dated: December 28, 2001 o ~ ~ b i t r a t o r2


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, . s teward Fernando Rameria and was rushed to the emergency room ofSt. Barnabas Hospi ta l . He was subsequently re leased and placedunder ongoing medical care and monitor ing.

Mr. Rameria subsequent ly a r re s t ed and c r imina l lycharged but died p r i o r to h i s cr iminal t r i a l .

Pr ior to t h i s inc ident the Grievant had been approved andscheduled for four weeks vacat ion commencing on 4/1 /01 . Despitethe 3/12/01 poisoning episode he took his scheduled vacat ion .

When the Grievant re turned from his vacat ion on 5/1/01 hewas to ld severa l t imes by the proper ty manager and the VP ofHuman Resources in ea r l y May t ha t before he could re turn to workhe needed to provide medical documentation to subs t an t i a t e why hehas not been a t work s ince 3/13/01.

The Employer contends the Grievam _ had not presented i t srequested and requi red medical documentation and was thereforete rminated on 5/23/01.

Pre l iminar i ly the Employer argues t h i s gr ievance should bedenied on the bas i s t ha t t h i s grievance i s untimely under theterms of Art ic le 19 of the CB which requi res the Union to submitto arb i t ra t ion a t e rminat ion within ten days of rece ip t of thenot ice of t e rminat ion .


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The fac t s es tab l i shed the Gr ievant was te rminated by l e t t e rdated 5 /23/01 , and the Union f i l ed for a rb i t ra t ion on 10/3/01 ,wel l exceeding t he con t rac tua l ten day l imi t a t ion .

The Employer, assuming arguendo tha t the Arbi t ra tor f indst h i s gr ievance a rb i t r ab le , mainta ins t had j u s t cause tot e rminate the Grievant for his repea ted r e fusa l to comply withi t s es tab l i shed ru le and severa l ora l d i rec t ives from h i simmediate superv i so rs to submit medical documentation tosubs t an t i a t e h i s absence from work s ince March 13, 01.

The Employer acknowledges the unfor tunate , cr iminal act by acoworker aga ins t the Grievant on 3/12/01 inc ident caused him toseek medical a t t en t ion and was the cause of his i n i t i a l absence.Nonetheless , the Employer s t a t e s tha t from the date th i s inc identto the Grievant s te rminat ion t had not received any medicalrecords or diagnosis or was appr ised how and i f the Grievant wasbeing medical ly t r ea t ed or when he would be able t o re tu rn towork.

The Employer s t a t e s t had no a l t e rna t ive but to te rminatethe Grievant because of his wi l l fu l re fusa l to comply with i t sreasonable request to subs tan t ia te h i s absence of approximately2.5 months.


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For a l l these reasons the Employer r e spec t fu l l y submits tha teven consider ing the meri t s of t h i s gr ievance, the Arb i t r a t o rshould deny it

Union Counsel s ta te s it i s in a d i f f i cu l t pos i t ion andunable to defend aga ins t the Employer s claim t ha t th i s gr ievance

ji s untimely given the fac t the union delegate assigned to th i s 'Employer has been terminated by it for unre la ted to t h i sgrievance job performance i s sues . I t s ta te s it i s fur therhindered by the f ac t it i s unable to l o ~ t e i t s f i l e regard ingthe Grievant s t e rminat ion to subs t an t i a t e the e f fo r t s to whichit undertook to grieve his t e rminat ion . The Union submits for a l lof these unique reasons and excuses t ha t the Arbi t ra tor shouldnot f ind t h i s grievance unt imely and al low it to be decided onthe meri ts .

s t c the meri t s of t h i s mat ter , the Union s t renuouslyargues the Grievant had been employed for nine years withoutpr ior disc ip l ine and deserves be t t e r than what he got from t h i sEmployer.

I t arduously asser tE thE genesis of thE Grievan t sterminat ion stems from the undisputed fac t he was poisoned whilea t work a f t e r ingest ing water in a bo t t l e t a in ted with ammonia bya coworker which caused him to sus ta in in jury .


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The Union argues t i s the he ight of i nsu l t for t h i sEmployer, knowing fu l l well why the Grievant was absent tot e rmina te him for an a l leged f a i lu re to produce medical notesa t t e s t i n g to his medical condi t ion.

The Union fu r the r dispu tes the Employer 's cla im the Grievantf a i l ed to produce medical documents when reques ted to do so. Thedocumentary evidence es tab l i shed the Grievant submit ted th reemedical notes , one pr io r to h is terminat ion and two postdischarge , i . e . Union Exhibi t 2 dated 5/1/01; Union Exhibi.t 6dated 6 /1 /01; and Employer Exhibi t da ted 7/5/01.

The Union submits the cred ib le t es t imony of i t s witnesses ,as wel l as the aforement ioned documentary evidence, should causEno other conclus ion , but the Employer did not have j us t cause t cte rminate nine year employee who sus t a ined i n ju r i e s as resu l tof being vic t im of crime while a t work.

Therefore , the Union reques t s the Grievant be r e in s t a t ed toh i s former pos i t ion and be made whole for a l l losses incurred .

OP N ON

Based upon the Grievant s wr i t t en not ice of t e r m i n t i o ~datec 5 /23/01, anc thE Union's woefully latE demand forarb i t r a t ion dated 10/3/01 the Arbi t ra to r f inds the Union's demand


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A rb i t r a to r i s of the f i rm be l i e f t ha t had t not been for thec r i mi na l assaul t v is i t ed upon the Grievant by his coworker whilea t work, he would st ll be a t work and not sub jec t tod i s c ip l i n a ry measures. The f ac t remains tha t a l l the issuesbe fore t h i s Arbi t ra tor for determinat ion stem from the Grievantbeing vic t im of crime while a t work.

As previous ly s ta ted the Employer i s c l ea r l y within hisr i g h t to expect the Union to comply with Art ic le 1 9 s t ime l imi t sand for t to have the r igh t to enforce i t s reasonable rules aswel l as expect employees to comply with manager ia l d i r ec t ives .

The Arbi t ra tor f inds tha t despi te the i ssue of a r b i t r ab i l i t yand fa i lu re to comply with management s di rec t ives , the Grievanti s e n t i t l e d to re ins ta tement by v i r tue of the aforement ionede q u i t i e s and uniaue c i rcumstances of t h i s case.

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Almanzar, Humberto - 2001-12-28