In the Matter of the Arbitration between

MICHAEL FISHMAN, PRESIDENT, LOCAL 32BJ, SERVICE EMPLOYEES INTERNATIONAL UNION

- and -

RESIDENTIAL BOARD OF MANAGERS OF THE WARREN STREET CONDOMINIUM C/0 ROSE ASSOCIATES, INC.

and -

- X

REALTY ADVISORY BOARD ON LABOR RELATIONS, INC. - - - - - - - - - - - X

APPEARANCES:

OPINION AND AWARD

For the Union: Ryan Borgen, Esq. Associate General Counsel

For the Employer:

For the RAB:

Employee:

Premises:

Matthew Providente John McKivergan

Harry Weinberg, Esq.

Jose Aponte, Grievant

101 Warren Street

A dispute having arisen between RESIDENTIAL BOARD OF

MANAGERS OF THE WARREN STREET CONDOMINIUM C/O ROSE

ASSOCIATES, INC. and The Realty Advisory Board on Labor

Relations, Inc. (hereinafter referred to as the "Employer")

and Local 32BJ, Service Employees International Union

(hereinafter referred to as the "Union") , concerning 101

Warren Street, the same was submitted to the Undersigned

for arbitration and Award pursuant to the pertinent

provisions of the then current Collective Bargaining

Agreement between the parties at a hearing scheduled for

August 11, 2010.

In a letter to the Office of the Contract Arbitrator

dated March 23, 2010, the Union alleged the following

complaint on behalf of Jose G. Aponte (the "Grievant"), and

the same was by mutual consent of the parties submitted to

the Undersigned for adjudication and Award.

Member states that he was unjustly discharged effective March 8, 2010.

The Union seeks that the member be reinstated to his former job position with all back pay, benefits, 32BJ Benefit Funds entitlements and seniority lost and that all back contributions be paid to the Funds.

OPINION

The Grievant, Jose Aponte, was employed at the above

premises as a handyman for approximately two years. On

March 8, 2010, he was terminated. The Grievant was

terminated for entering into an agreement with a tenant to

undertake private work without notice to or consent of the

management. In addition, he abused his senior position to

compel another building employee to perform the work.

(C.Exh.1.)

The facts, for the most part, are agreed. The Grievant

is a short term employee, having been hired in March of

2008 as a porter, he was quickly promoted to handyman with

supervision over the lobby staff. On the night in question,

the Grievant was told by the concierge that the tenant in

apartment l1C had requested that his apartment be cleaned

out and to throw out everything except a rain jacket. The

Grievant, prior to leaving at the end of his shift at 10pm,

directed the porter on duty to clean out the apartment,

which he did. The bags containing the items left in the

apartment were put out and collected the next day. Two

cable boxes belonging to Time Warner Cable Corporation

(Time Warner) having a value of $850.00 were thrown out

with the garbage.

Two days later, the Employer was called by the former

tenant advising him of the loss of the cable boxes.

Subsequent to this the Employer received an email from Time

Warner advising them that their subscriber (the tenant) had

requested an employee clean out his apartment and "bring

down the equipment to the doorman." (C.Exh.2.)

It is the Employer's position that the Grievant knew

that cleaning out the apartment was the responsibility of

the tenant. The building is a cooperative and the Employer

has no responsibility to clean out a resident's apartment.

The Grievant knew this and admitted it when he was

questioned by the Superintendent. Yet he took it upon

himself, for whatever reason, 1 to direct the porter to clean

out the apartment. It also argues that there is no record

of any request by the tenant in its system that keeps track

of work request.

If the Grievant had any question, he should have

sought permission of the Superintendent or at least advised

him before he gave direction to the porter. The Grievant, a

short term employee, committed a very serious breach of his

responsibility. He admitted that he knew the rules but

offered no explanation for his actions. The result was the

Employer is now responsible for the loss of the cable boxes

with a value of $850.00.

The Grievant was terminated for just cause and the

grievance should be denied.

1 In the letter of termination (C.Exh.l.) the Employer asserted that the Grievant had an arrangement with the tenant.

The Union argues that the Grievant has a spotless

record and was promoted due to his ability shortly after he

was hired. He admits he made a mistake and has offered to

reimburse the Employer for the loss of the cable boxes. It

is the Union's position that the Grievant made a mistake

which he offered to rectify but the Employer refused. The

Union argues that the penalty of discharge is too severe

for an employee with an otherwise clean record and he

should be reinstated with a short suspension.

The Grievant testified that he had no arrangement with

the tenant. In fact he never spoke to him. He received the

request from the concierge and told the porter to clean out

the apartment. When asked why he did it, he said he did it

as a favor. He also testified that at no time did the

tenant direct anyone to bring the cable boxes to the

doorman. He admitted that he did go to the apartment and

did see the cable boxes and they were in fact thrown into

the garbage bags. When asked why he did not notify the

Superintendent of the tenant's request, he stated that it

was late and he did not want to bother him.

The Grievant's testimony is credible. There is no

evidence to support the charge that he had an arrangement

with the tenant or was told to bring the cable boxes to the

doorman. He did, however, commit a serious breach of the

building rules by directing the porter to clean out the

apartment "as a favor" to the tenant. At the least he could

have advised the Superintendent. The Grievant admittedly

knew the building had no responsibility for cleaning out a

tenant's apartment. He was also aware of his responsibility

to report such a request to the Superintendent. The

Employer has testified that it is responsible for the

reimbursement of Time Warner for the cable boxes thrown out

by its employee even if in error.

I agree that the penalty is too severe, even for a

short term employee. He made a mistake and was willing to

rectify it but the Employer refused. Therefore, I am

reducing the termination to a two month suspension with the

stipulation that the Employer be reimbursed $850.00 for the

loss of the cable boxes.

AWARD

1) The grievance is granted to the extent that the Grievant shall be reinstated to his former position.

2) The Grievant's termination shall be reduced to a two-month suspension.

3) The Grievant shall be paid back pay for the period he was out of work less the two months suspension subject to the usual deductions.

4) In addition, the Grievant shall reimburse the Employer in the amount of $850.00 for the loss of the cable boxes before receiving any reimbursement for time lost.

5) The Arbitrator shall retain jurisdiction to resolve any dispute that may arise from number 3 and 4 above.

DATE: August 23rct 2010

CONTRACT ARBITRATOR l///

/

STATE OF NEW YORK: SS:

COUNTY OF NEW YORK:

I hereby affirm pursuant to CPLR Sec. 7507 that I am the

individual described in and who executed this instrument

which is my Award.

DATE: August 23rd 2010

Contract Arbitrator