You are on page 1of 8

- - - - - - - - X In the Matter of the Arbitration between

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


OPINION AND AWARD Case #333926

- and 400 WEST 59TH STREET APARTMENT CORP.

C/0 URBAN ASSOCIATES, LLC - and REALTY ADVISORY BOARD ON LABOR RELATIONS, INC. - - - - - - - - - - - - - - - X
APPEARANCES: For the Union:

Ryan Borgen, Esq. Associate General Counsel Joni Allaire Miguel Carballo Harris Simons

For the Employer:

For the Realty Advisory Board: Employee: Premises:

Harry Weinberg, Esq. Salvatore Amato, Grievant


400 West 59th Street

dispute CORP.

having C/0

arisen URBAN

between

400

WEST and

59TH the

STREET Realty

APARTMENT

ASSOCIATES, Inc.

LLC

Advisory Board on Labor Relations, as the "Employer" ) Union and Local

(hereinafter referred to Service to as the Employees "Union")

32BJ,

International

(hereinafter

referred

concerning 400 West 59th 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.

FACTS

The Grievant, at the above

Salvatore Amato, for

was employed as a handyman fifteen years. On

premises

approximately (C.

October 18, 2010, the

2010,

he was terminated the case for

Exh.7).

On November 1, The case was

Union filed

arbitration.

scheduled for hearing on several days and concluded on January 18, The 2012. Both parties appeared represented by their attorneys. were given examine full and opportunity to offer testimony, At the

parties

present

evidence,

cross- examine

witnesses.

conclusion of the arguments, the hearing was closed.

OPINION

Employer Position

The apartment

Employer of a

argues by

that the

the

Grievant

was

found

in

the the

tenant

tenant's

housekeeper

while

tenant was on a

business trip.

The Grievant,

according to the

housekeeper was ".

. sitting on the floor watching TV." it was found that the Grievant had no

Upon investigation,

reason to enter the apartment and no work had been requested by the tenant. In addition, there was no record of any keys being
2

given

to

the

tenant.

The

tenant,

Harris

Simons,

testified on

behalf of the Employer that he received a call from the Grievant on his cellphone. He was rather surprised that the Grievant had his cellphone number since he does not give out his cell number freely. Mr. Simons testified that the Grievant admitted to him

that he was in his apartment. The tenant was very upset that not only was the Grievant in his apartment but that the Grievant had somehow obtained his confidential cell phone number. Mr. Simons

also testified that his wife was so upset by someone coming into their apartment without their knowledge that she wanted to move. The witness further testified that the Grievant did not tell him why he was in the apartment. Two other witnesses Miguel Carballo, testified; Joni Allaire, the manager, and

the Superintendent. Ms. Allaire was responsible She testified that

for the decision to terminate the Grievant.

she spoke to the housekeeper who told her she found the Grievant in the apartment when she arrived to clean. When she

investigated,

she concluded it was the Grievant and was told by the Grievant the tenant had to do touch up painting. advised by email that She the

the Union that then contacted

and was

Grievant was not assigned any work in the apartment and he had no authority to be in the apartment. Ms. Allaire was asked on

cross-examination if she had an incident with an employee, named Jerry, who was involved in a similar incident and not

terminated. She replied that that was true except that the other employee never entered the apartment, had a clean record and was suspended. Miguel Carballo, the Superintendent, testified that he

asked the Grievant if he entered the apartment and the Grievant replied "he was not doing any job in the apartment." When asked
3

on

cross-examination

if

he

told

the

Grievant

the

apartment

number he said "Yes." The Grievant Employer was in argues the that the evidence without is clear: the Simon's apartment authorization.

This is a very serious breach of the building rules as well as the practice in the industry. An apartment is a tenant's home

and he rightfully expects that no one can enter his home without his authorization. The only penalty for a violation of this rule is termination. a In support of Awards of of its the position, Office of the the Employer Contract

submitted Arbitrator.

number

The Employer requests that the grievance be denied and the termination upheld.

Union Position

The Union at fifteen offense years that of the

the outset emphasizes service. Employer The first

that

the Grievant has is that enough for for an a

argument is serious

alleges

summary termination there must be sufficient proof. Here,

there

is insufficient proof that the Grievant was in the apartment of the tenant as charged. The housekeeper never appeared at the

hearing nor identified the Grievant as the person she saw in the apartment. Ms. Allaire testified that she did not recall if the housekeeper apartment. identified The Grievant the Grievant he as was the in person the in the on

admitted

apartment

August 26, but he was supposed to be there on that date. When he spoke to the tenant, there was a misunderstanding about the date A misunderstanding is not grounds for his reply to
4

he was in the apartment. termination. In addition,

the

Superintendent was

entirely reasonable; he did not have any work in that apartment on that day. The Union requests that the Grievant be returned to his

former position with full back pay and restoration of all his seniority and benefits.

QUESTION

Was the Grievant terminated for If not, what shall the remedy be?

just cause?

DISCUSSION

There is only one question here according to the Employer: Was the Grievant in the tenant's apartment without authorization on the day in question? I have reviewed all the Awards submitted by the Employer, who pointed out as well as the comments of the Union attorney, that in two of the Awards the grievants were

progressively disciplined.

The Awards, however, all confirm the

Employer's argument that entering the apartment in a residential building industry without policy. of in In authorization In prior most this of case, a number is of a the most serious there The have breach was of the

cases, conduct. did also

submission terminated service.

unsatisfactory the the

employees substantial several

submissions Employer

submit ted

prior warnings given to the Grievant. Most of the warnings were for time and attendance problems. I agree with the Employer that for an employee to enter a tenant's apartment without authorization is a most serious

violation of the building and industry standards.

Tenants must

be secure in the knowledge that their apartment, safe. To this end, the buildings

their home,

is of

spend substantial amounts

funds to provide the residents with a safe place to live. The question then is: Did the Grievant enter the apartment of the tenant, Harris Simons, on the day in question, without

reason or authorization? The Union raises an important argument. If, as the Employer argues, entering an apartment of a tenant is in and of itself grounds for termination, the facts. This is even more important you still must prove where, as here, the

Grievant is being terminated for a single offense. Quite simply, the Employer has Grievant was failed to offer sufficient evidence that the

in the tenant's apartment.

The Grievant allegedly

was seen by the tenant's housekeeper. Yet the Employer failed to either produce her or adequately explain why it didn't. Only she could identify the Grievant as the person in the apartment. the

Therefore,

it is argued,

that without first-hand testimony, In addition,

Employer's case must fail.

the Grievant offered a

reasonable explanation why he called the tenant on the day in question. apartment. about the It was his his confusion reply was to about the the day he was when in in the

Also,

Superintendent He had no

asked the

apartment

truthful.

work

apartment that day. The against Employer argues that from the best proof of the charges

the Grievant was

the Grievant himself.

He called The

the tenant directly and admitted he was

in the apartment.

tenant testified as to the call he received from the Grievant. The Grievant wants us to believe that he called the tenant to discuss the fact that he was doing work in the tenant's

apartment on August 25.

The tenant testified that the Grievant There

told him he was in the apartment but did not explain why.
6

was also an attempt, claim the Grievant When

according to the manager, was doing by touchup the painting

Ms. on

Allaire, the if day he

to in had

question.

questioned

Superintendent

entered the apartment, he could simply have said no. Instead, he replies that he did not have any work in the apartment. The Grievant's testimony lacks credibility. His admission

to the tenant that he was in the apartment can only refer to the day in question not some prior date when he was authorized to be in the apartment. Entering an apartment of a resident without

authorization in the absence of an extreme emergency is one of the most serious violations of industry and building rules. find that the testimony of Mr. with the Grievant Simons, in a the the call tenant, about by in I I his the the find

conversation Grievant

initiated was

clearly

established

that

Grievant

apartment without authorization on the day in question.

that the Grievant was terminated for just cause and the Employer did not violate the Collective Bargaining Agreement when it

terminated the Grievant.

AWARD

The grievance is denied in all respects.

DATE: February 29th 2012

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 is my Award.

instrument which

DATE: February 29th 2012

You might also like