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 -
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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