You be the Arbitrator

Not Working a 40-Hour Week Article 3 Hours of Work and Overtime: Employees covered by this Agreement are to work a normal workweek of 40 hours and a normal workday of 8. Each employee shall be entitled to one (l) full day of rest per week, which shall be twenty-four (24) consecutive hours. All work performed in excess of the normal workday or in excess of the normal workweek, or on a day off, shall be paid one and one-half (11/2) times the straight hourly wage plus regular day’s pay, or one and one-half (11/2) times the daily rate of pay, whichever is the higher. Doorman does not get paid for lunch hour. Article 12 Discipline The Company shall have the right to discipline or discharge employees for just cause. Any disciplinary action taken for minor infractions shall be progressive and will include: written warning written reprimand suspension discharge Facts The grievant is a night-shift doorman of an apartment building. He is required to work an eight-hour day. Beginning in August 1999, the grievant was sent a letter containing the caption “Second Warning,” which spelled out specific instances when he was away from his post for at least a half hour. He was reminded in the letter that his work hours were 3 p.m. to 11 p.m., with an hour off for dinner and reasonable bathroom breaks. Other than that, he was expected to be at the door. In July 2001, a new collective bargaining agreement (CBA) was entered into that changed the grievant’s work shift to 3 p.m. to 12 p.m., with an unpaid hour for dinner. In August 2001, the company’s vice president (“VP”) sent a registered letter to the grievant in which she pointed out that he was not working a full 40-hour week. She concluded that letter by stating to him, “Effective immediately, you will work an eight-hour day and a 40-hour week. If you continue to work a short week, you will be suspended without pay.” The VP had observed that in addition to the unpaid dinner hour, the grievant was regularly away from his post for 15- or 30-minute periods. This August 2001 letter did not contain any language indicating that it was a warning. In October 2001, the VP asked the building superintendent to document the actual hours being worked by the grievant. The superintendent monitored videotape records from security cameras in the building and documented the grievant’s actual hours of work. He showed that the grievant was not working eight hours during his nine-hour shift. The VP sent another letter to the grievant in which she advised him that he was being suspended for a one-week period. The union contends that this suspension was not for proper cause and filed this grievance. Issue Was there proper cause to suspend the grievant? Position of Parties The company states that the CBA is clear and unambiguous and that it required that employees work an eight-hour day. The grievant has a history of not working the required number of hours in a workday, and he was warned in August 2001 that if he continued not working a full eight-hour day, he would face the consequences of a disciplinary suspension. It is the union’s position that the company is required to provide employees full and adequate notice of an offense before discipline can take place and that it failed to do so in this case. When the grievant received a warning in 1999, the letter was clearly labeled as a warning. The letter the VP sent to the grievant in August 2001 did not spell out that it was a warning letter. Further, under the contract that was in effect prior to July 2001, the grievant worked a shift beginning at 3 p.m. and ending at 11 p.m. In July 2001, the shift changed, and it ended at midnight with an unpaid dinner hour. The union argues that no one from management ever explained these changes to the grievant and thus that management was to blame for the grievant’s misunderstanding of the work hours.

Questions

As the arbitrator, what would be your award and opinion in this arbitration and identify the key, relevant section(s), phrases, or words of the collective bargaining agreement (CBA), and explain why they were critical in making your decision.

What actions might the employer and/or the union have taken to avoid this conflict?