7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 1/28
XHI IT
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 2/28
AMERICAN ARBITRATION
ASSOCIATION
Voluntary
Labor
Arbitration Tribunal
IN
TH E
MATTER OF
ARBITRATION
between
UNITE
HERE Loca l 100
OPINION
Union
AN D
and
AWARD
FEDERATION
O F CO UN TR Y CLU BS
WESTCHESTER HILLS
GOLF
CLUB
Employer
Re: Termination
of Timothy
Cremin
Case
No
01 14 0000 5354
Before: Prof
Robert
T
Simmelkjaer
Esq
Arbitrator
APPEARANCES
FO R
TH E
UNION
Jane
Lauer Barker Esq. Pitta Giblin
LLP
FOR
T HE E M PL OY ER
Peter M Panken Esq. Epstein
Becker
Green
PC
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 3/28
BACKGROUND
Pursuant
to the
procedure for Arbitration
contained
in
the
collective
bargaining
agreement
“CBA”) between UNITE HERE, Local
100
hereinafter the
“Union”)
and the
Federation
of
Country
Clubs and
its
affiliate
Westchester
Golf
Club hereinafter
the
“Employer”
or the “Club”),
effective
February
2011 Jt. Ex.
1 ),
a hearing was held
on
December 10,
2014
at
the
offices of
the
Employer.
The
purpose
of
the hearing
was
to
arbitrate
the
disciplinary
grievance
of
Timdhy
Cremin
a bartender
at
the
Club.
The rbitrator
derives his
jurisdiction
from
ARTICLE
28, GRIEVANCE
AND
ARBITRATION, Section 28,8,
At the hearing,
the parties were given
ample opportunity to present their
respective
positions, including testimonial
and
documentary evidence.
The
record consists
of
three
3) Joint
Exhibits,
five
5)
Employer
Exhibits
and one
1)
Union Exhibit, with
Employer Exhibit
No.
2 including nineteen 19) subexhibits,
The evidence
so submitted
as well
as
the
arguments
of the parties has been
considered
by
the
rbitrator
in the preparation of
his
award
and accompanying
opinion.
ISSUES: Did
the
Employer have
just
cause
to
terminate
the Grievant by
implementing
the
terms of
his Last
Chance
Agreement LCA’ ?
not, did
the Employer have
just
cause
to
terminate the
Grievant,
irrespective
of his LCA?
not,
what
shall
be
the remedy?
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 4/28
Section 1.1 The Federation
does
hereby recognize
the
Union
as
the
sole
Collective Bargaining
Agent
on
behalf
of
the
employees
employed
by
the
Clubs
in the
classifications
listed
in Schedule A.
Article
6
Discipline
and
Discrimination
Section 6.1 No regular employee
who
has
completed his/her
probationary
period shall be
discharged laid off,
suspended
dispossessed
or
evicted
without
just
cause
Section
6
The Club shall
notify the Union in
writing immediately
upon
such
discharge
layoff,
suspension
eviction
or any other
manner of
termination
of
employment
by
action
of the
Club,
setting
forth the reason
therefore
Article
8 Grievance and
Arbitration
Section
28.1
3
a
grievance must
be
filed
by
the employee
Shop Steward or the Union, within ten
working
days
from
the date
arises Unless
such grievance is
filed within such period
shall
be
considered
waived
Section 28 2 Any
employee may
make
a request
or
inquiry,
or a
complaint to the Club in the
presence
of
the
Shop
Steward
Any
disposition
of
such
request inquiry
or complaint which involves the
terms or application of this Agreement
shall
be
made only
after
discussion
with
the
Business Representative
of
the
Union
or,
in
his
absence
the Shop Steward
and
must
be
consistent with the terms
of this
Agreement
Section
28 3
Grievances under the terms and conditions of the
contract shall
be
initiated by filing a
statement
thereof The
grievance
shall be
discussed
initially between
the Club,
the Shop
Steward and the employee involved in
an
attempt
to
settle same
Section 28 4 Any
grievance
appealed
shall
be submitted to the
Club
manager and
the
Union representave
and shall
be
discussed
initially
in an
attempt
of
settlement
at
a
mutually
convenient
time
between the
Club’s
representative
and
the employee involved,
accompanied
by
his Union representative
and/or
designated
Shop
Steward
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 5/28
Section
285 the
Union
representative and Club manager are
unable
to
resolve
the
problem,
within five
5
days
after
their
meeting in Section 284,
a designated Union representative shall
meet with the designated representative
of the Federation.
Section
2810 The arbitrator
shall have no t power
to
add, subtract
from or modify any of
the terms
of this
Agreement.
STATEMENT OF FACTS
/
HISTORY
OF PROCEEDINGS
The
Club is
a
member owned golf
and
country
club which is
a member of
the Federation
of Country Clubs ‘Federation”
and
is
subject to the
CBA.
The
Grievant,
Timothy
“Ted’
Cremin
“Cremin” , has
been
employed as a
bartender
at
the Club since
or
about the
year 2000. He has
been a
Union
member
for
close
to 35 years
and
is
an
elected
member of
the
18
member
Executive
o rd
of
Local 100 .
He
was
also the shop steward
at the Club
when
the grievance
arose.
Cremin has been
involved in
contract
administration and
negotiations
between
the
Club
and the
Union
and
is an official
signatory
to
the
CBA.
The Grievant
has
been subject to
two
terminations
of
his employment.
The first occurred on December 23 ,
2009
when
Mr. Mark Sheehan, Club General
Manager,
notified Cremin
by
telephone that he
was
discharged for cause,
effective
December 22 , 2009.
On
October
12, 2010,
Arbitrator
Susan T. Mackenzie reinstated the
Grievant
without
back pay/constituting
a
ten
month disciplinary suspension,
stating:
There
was
just
cause to
discipline
grievant,
Timothy Cremin,
but
discharge
is an
excessive
penalty
under
the totality
of
circumstances.
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 6/28
The
Employer
is
directed
to
reduce
the discharge of
Mr. Cremin to
a
disciplinary
suspension
without
pay
and
to
reinstate him forthwith
to
his
former position,
In
addition,
Mr.
Cremin is
to be
placed
on a
Final
Warning that any future
incident of insubordination
or
use
of
inappropriate
language
directed at supervision,
fellow
employees,
Club
members
or
guests
can establish grounds
for
summary
discharge.
C.
Ex. 2 ).
Thereafter,
by
letter
dated
November 16, 2011, the Employees
attorney
in
the instant case,
Peter
M. Panken,
wrote
to
UNITE
HERE
Local
100 President,
William Granfield
advising the
Union
that “the Club
has
suspended Mr.
Cremin
pending
a
decision on whether to
terminate his employment.”
Attached
to the
letter
are
nineteen
19)
exhibits,
including
seventeen
17) Disciplinary
Report
Forms,
a
Meeting
Report
Form
and
a
Union
Grievance Form,
dated 1 20 11 C.
Ex. 3 ).
Based
on
the
November 16,
2011 letter
and attachments, the
Grievant
subsequently signed a Last Chance Agreement dated
December
28 , Z1
1
which
states:
Mr.
Cremin
“G rievant”)
was
on
disciplinary
suspension
pending
a
decision whether
to
terminate
his
employment
which
the Union
grieved
on his
behalf
Grievant
and
UNITED
HERE
Local 100
“Union”)
have
agreed
to
enter
into
this
Last
Chance Agreement in
settlement of the grievance.
1 Grievant is
suspended
without pay
or
benefits until April
1, 2012,
based upon the
matters
raised
in
a
letter
dated
November 16,
2011
to
the
Union and
the
attachments
thereto
attached
as
an
exhibit
to
this
Last
Chance Agreement .
Grievant waives and releases
any
claims
with
respect to
the disciplinary action taken by the
Westchester Hills
Golf
Club “Club”) with respect to the matters
referred
to
in
the November
16,
2011
letter and
this
disciplinary
suspension.
2.
Grievant
has
agreed
to
this
last chance final
warning and agrees
that if he engages
in
any
infraction including, without
limitation,
any
item
referred
to
in the November 16,
2011 letter to the
Union,
which
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 7/28
is attached
as
an
exhibit
to
this
Last
Agreement
following
his
reinstatement, the
Club has the
right to
terminate his employment
and the
only
issue which
can
be
submitted to arbitration is whether
or not
the
Grievant
had
in
fact committed the infraction.
3.
Grievant
acknowledges that he was insubordinate
to
the
Club
Manager and
specifically agrees that
he will
not
be
insubordinate to
the
next
Club Manager or
any supervisor following
his reinstatement
nor
will
he do
anything
to
prevent
the
Club
from
raising issues with
the
Union
Business Agent or any other
Union
official.
4. Grievant
specifically agrees
that
he
will not
discuss any perceived
problems
in his
job
or his
relationship with
the Club
with anyone
except
his manager or his supervisor, the Club President,
the
Chair
of the Club House Committee or his Union.. .
The
Club
held
a
bereavement
luncheon
on August 8,
2013 for
Mark
Martino,
a
Club Member, following the funeral mass of his mother. Cremin
was
the bartender along with
a
parttime bartender ‘Bernie ,
who
was
also
working
the event.
The
event was
attended
by
approximately 200 guests and
the
bar
was
busy.
Cremin
worked at the
service
end
of the
bar providing
drinks
to
the
servers who
were
waiting on guests
at
tables, as well as worked
half
of
the bar
serving
guests
who ordered
drinks at
the bar. The restaurant Manager,
Helio,
was also
present
during the event,
Following the bereavement luncheon, Martino sent an
to the
Club
Board on
or
about
August 13,
2013, complaining about the behavior of
the
Grievant. According
to
Martino,
Cremin hter
alia, “was inhospitable, rude
and
insulting.” C. Ex. 4 ).
The
Club
General
Manager, Jack
Hrad,
after
receiving the
Martino
called Cremin
at
home
on
August
15, 2013 and
suspended him from his job.
Subsequently,
the
Grievant was terminated by
letter
dated
December
7,
2014
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 8/28
7
sent
to Jean-Homer Lauture, Local
100
OrganIzer...
Jt. Ex.
3 ). The termination
letter
does no t state
the
reason
for
the
Grievants termination,
bu t states:
‘the
Golf
Club
has decided that Mr.
Cremin’s
conduct warrants termination,
especially in
view
of
the
ruling
in
his
prior
arbitration
and
the
violation of
his Last Chance
Agreement’
A Grievance
Form dated December
10, 2 3 was f iled by the Union
on
behalf of
the
Grievant Jt Ex. 2 ).
CONTEN11ONS
OF ThE PAR11ES
Emoloyer
Position
The Employer,
which
has
the
burden
of
proof
In
a
disciplinary
arbitration,
maintains that the Grievants termination should be upheld based on his Last
Chance Agreement dated
December
28 2011
‘setting
the grievance with his
second final waming.’ Given the
condition
in his LCA that ‘If
he engages
in any
infraction Including
without
limitation
any
item referred to
in
the November 16,
2011 letter
to
the Union following his reinstatement..
the
Employer
argues that
Cremin’s
inappropriate conduct
at
he
bereavement luncheon on August
8,
2013
constitutes
a
violation
of
his LCA
and
provides sufficient
grounds for
his
termination.
With
respect
to the
Grievants credibility, the Employer refers to he
findings of Arbitrator Mackenzie during
the
Grievants
prior
hearing
as
follows:
‘On
cross
examination
Grievant
testified that he ‘never’
raised
his
voice
or
swore
at
Mr.
Sheehan
[the
then
manager
who
Grievant
called
a
thief
in this
arbitration
hearing] ‘as long as
have been
woridng
with
him’
and
he
denied
calling Mr. Sheehan
a
‘fucldng
prick.’ Grievant acknowiedged
that
the botte of
wine
he
had
opened was behind the bar with wine
In t bu t denied
interfering
with
Mr. Sheehan’s
access
to the wine
because
Mr.
Sheehan
had
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 9/28
8
the
‘option’ of going
to the
wine
closet
Grievant
also claimed
that
while he
did
have
a few
drinks he
was
not drunk
at
the party.
Grievant’s denials
of
directing
profanities at
Mr. Sheehan or
of
physically
or
verbally
attempting
to
stop
him from
access
to
the
opened
wine
on
the bar shelf
are
not credited in
light
of own
equivocation
in testimony
as
well
as
other record
proof.”
According
to
the Employer
“[w]hat is
credible is the gruff
demeanor
and
combative
responses
which
Grievant
displayed
at
the hearing
all
of which
are
consistent with his prio r
misbehavior
as outlined
in
Arbitrator Mackenzie
ruling
and
Mark
Martino’s
complaint
immediately
after the luncheon
In
addition
Grievant’s
attitude
towards
his prior
Manager
as
well
as
his defiant
attitude with
respect to
the offer of
reinstatement he
agreed
to a
second last
chance
opportunity
are
all consistent
with Grievants
misconduct
at
the
post
funeral
mass
luncheon ”
Testimony
Mr. Mark
Martino “Martino” ,
Club Member
testified
that on
August
8,
2013
a
bereavement
luncheon was
held
at
the Club
following the
funeral
mass
of
his
mother Following
the
luncheon he sent an
to
the
Club
Members
describing
a
“series
of
situations
which had
occurred” wherein “Teddy
was rude
and
disrespectful in the
way
he addressed
his wife, father
son
brother
and
friends present ” C. Ex.
4 .
Martino
testified
that
his wife to ld
him
that
when she went to get
drinks, the
Grievant
asked
her “How come
she
never
smiled.”
Martino claimed
that his
father
told
him that
when he
went
to
the
bar
and
ordered
three
lemon drop
martinis,
Ted told
him
that
he could
not
make lemon
drop martinis
but
the back
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 10/28
9
bar made the martinis.
Martino recalled that
his
son “an
Army Special
Forces
soldier surrounded
by
guests
asked for a glass
of wine only to
return visibly
upset”
due to
Cremin’s
“totally
disrespectful and
insulting treatment” He
wrote
that Ted
had
responded
“testily”
to
the request.
Martino
further claimed in his
em il
and testimony
that
a
friend
had
told him
that he
was
trying
to
get Cremin’s
attention to order a
drink for another
friend when Ted
told
him
to “just
worry about
himself”
Martino
also
claimed
in
his
email that
the Grievant “was
berating Pearl for
some
unknown infraction
while
a
packed bar
looked on” Martino testified
that he
heard the
Grievant raise his voice
when
Pearl the waitress came
for
drinks As
Martino put
it couldn’t
understand Ted yelling
at
Pearl.
Some
of
the people
at
the bar
were
commenting
to
each
other
“What was that all
about?”
n Martino’s
recollection
the
complaints
of
the
guests focused
on
the “poor
service and
w iting
a
long time to
get
drinks” He
reiterated
that his
father
and
son “were
spoken
to
in
a
disrespectful manner”
On cross examination
Martino
acknowledged that
the
is the
only
record
of his
complaint.
He
did not follow up despite
the 20 40 complaints he
received
Martino
did
not witness any of the
interactions with the
Grievantthat he
reported in his
em il Martino
couldn’t
recall the
amount
of
time he spent at the
bar. He
was
the
“primary host
circulating
among the guests”
He
acknowledged
that
approximately
150
to
200
people attended
the
event
which lasted
until
5
pm.
There
was an
open
bar during the entire
period
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 11/28
of the event
although guests
could
be
served
either
at
the
tables
or
the
bar
The
Grievant was
the only
bartender fo r the
most
of
the
event
with
approximately 20
people
at
the bar
at
all
times
Martino wrote in his email
that “[t]he
crowd was too
big. [and]
Ted
moved
too
slow.”
Martino
acknowledged that he
was neither
present
when his
son
requested a
glass of wine nor
when his
father ordered
the
lemon
drop
martinis
Martino acknowledged that the
crowd size
may
have
contributed
to
delays
in the
service He
denied stating that “It’s
time for Ted to
retire”
or
being asked
to
give
a
written statement
regarding his
complaints He
did
write in his
email:
Ted
“has
to
go.”
On
redirect
examination
Martino explained a sentence
in
his
namely
can’t tell
you
many guests asked
me
‘What’s wrong
with the
bartender? ”
indicated
that
several guests
had
complained
to
him.
Mr.
Stephen
Till, General
Manager
testified
that the
handbook entitled
“Our Mission” was
used
to define
the
behavioral expectations for
all Club
employees
Although he was not
present
when
Cremin
was
hired, when
the
management company
for
whom
he
has
worked
as General
Manager
took
over
management
of
the
Club in
2012
the handbook was
distributed to
all
new hires
C. Ex. 5 ).
He did
not
send a copy
to the
Union.
Union Position
The
Union,
on the other hand
contends
that “the
socalled Last
Chance
Agreement produced
by
the employer at the
arbitration but
unsigned
by
the
Union
and
never
discussed with
the
Union by
the Club is
void,
invalid and
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 12/28
unenforceable ” t further contends that the terms of the LCA “do
not provide
a
permissible
basis
or just
cause to
terminate Cremin.”
The
Union further contends
that
the
Club provided
“no
non hearsay
testimony establishing any
misconduct
or
any
facts
that
would
justify
the
termination
of
a long term
employee.’ Absent competence evidence or a record
of progressive
discipline
notwithstanding the Mackenzie Award and Mr.
Panken’s
November 16. 2011 letter, and
given
the
Grievanfs credible
rebuttal
of the
hearsay
testimony the
Union
argues
that Cremin “must be reinstated with
full
back
pay
and benefits ”
With
respect
to
the
LCA, the Union argues that as
sole
and
exclusive
collective
bargaining
representative with the exclusive
authority
under Article 28
to
settle and dispose of grievances and
complaints
the
Grievant
was neither
authorized
to
represent himself
no r was the
Employer
permitted
to
deal
directly
with him
in
the
adjustment of
grievances.
In this regard
the
Union cites
case
law
establishing
jirj
“[a]n employer
who
chooses
to meet
with an
employee
to
adjust a
grievance must give the Union
the
opportunity
to attend
that
meeting.”
Top Mfq.
Co.,
249
NLRB
424 1980 . Despite the fact that
Cremin
is
a
shop
steward the Employer
was
still bound
to
its obligations under
the CBA to
respect
his
rights of Union
representation. The Union argues as follows:
“In this
case
the
Club
never
informed
the
Union
of
any
meeting with
Mr. Cremin regarding the Club’s
intention to terminate him in
late
2011 and made no effort to
include
the Union
in
the
discussions
of
the
proposed
discipline. The letter
from
Mr.
Panken
to
the
President of
the
Union
is
inadequate to
support the enforceability
of
a
last chance agreement
that followed that
letter
by
more
than one
month and as to
which there is
no
evidence the Union
had
any
knowledge
or
notice.
Mr. Cremin
signed
the last
chance
agreement
because
General Manager
Sheehan
told
him
he
would
be fired i
he
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 13/28
12
did
no t
do
so .
heUnion however
never
signed
the
agreement and
never
even received
a copy
of it
from
the employer
despite
the fact
that Mr. Panken
had
spent considerable time
in his
November 16,
2011
letter advising
the
Union
President
of
the
various
complaints
the
Club had with
Mr.
Cremin . Furthermore
and
most
Important
Is
the
fact
that the agreement
provisions
are
utterly
confrary
to
the
collective bargaining agreementwhich
gives to
all employees
the
right
to be free from discipline except for just cause Mr.
Cremin
was
in no position
to
voluntarily
and
intentionally relinquish that right
and
the
Union
simply did
no t agree
to
do so .
Therefore, based
upon the
parties’
collective bargaining agreement and federal law,
the
last
chance agreement Is void,
Invaild
and
unenforceable and
cannot provide
a
justification for Mr. Cremin’s
termination.’
In
addition, the Union
argues
that the
Employer
did no t have just cause to
terminate
Cremin
underArticle 6. heEmploye?s reliance
on
hearsay evidence,
specifically the testimony of Martino
its sole
witness is
deemed insufficient to
terminate
a
long-term
employee. Martino
did
no t have first-hand
knowledge
of
the
complaints
he
reported
In his email complaints
that were
later
rebutted
by
Cremin’s credible testimony.
Moreover, the Employer did no t
provide
the
Grievant with his fundamental
due
process
rights
as
contained
in
the
CBA.
he
Employer
did
no t conduct’a
neutral thorough
investigation
by
speaking
to eyewitnesset’ There
is
an
inadequate record of progressive discipline
set
forth in the November
16, 2011
letter in
that
with
the exception of possibly three incidents
Exhs.
5,
10 and 11 ,
there
is no
evidence that the Grievant
received
copies
of
these notices. ‘Ddiibit 3
indicates that he refused
to
sign the
form, bu t there is no evidence
that
he
received
a
copy
of
that notice.’
The
Union
further argues
‘Moreover,
the
disciplinary
notices refer matters that have
no
connection or relationship
to
the
acts upon which
the
Club
has
based his
termination
and
they
refer
to
alleged events
that
took
place
two
to
three years prior
to the
termination of Mr. CreNn in
December
of 2013—far too
long ago
to
be
relied upon
as
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 14/28
13
progressive
discipline
for this
termination.
Matters
such as
alleged
slamming
glasses into the
dishwasher which may cause breakage
Exh.
3
or
not cleaning
the
bar
adequately Exh.
6
have
no
connection
to
alleged
rude and
disrespectful communications
with
Club
members and guests. Progressive
discipline requires
such
nexus in order
to
ensure
that the
employee
involved
is
aware that
specific
conduct
if continued will
result in
additional discline
not
simply that anything
and
everything might cause
the Club
to
terminate
an
employee.
Finally, the incident
involved
in the
Opinion
and Award
of
Arbitrator MacKenzie
also cannot
support the
termination
of Mr.
Cremin
in this
case.
The incident in”olved
in that
hearing
was an interaction between
Mr. Cremin
and the then
General
Manager
Sheehan.
It is clear that
the
incident
arose in
part out
of
the
fact that
Mr. Sheehan
and
Mr. Cremin
were
long
time acquaintances
and social friends.
Mr.
Sheehan
has left
the
employ
of
the
Club
and the
alleged
events
underlying
the
termination
in this case do not
involve similar
conduct
by
Mr.
Cremin
Thus
that
award
cannot
provide the
progressive
discipline
underpinning
required
to
sustain
a
termination of Mr. Cremin,”
Testimony
The
Grievant
Timothy
Cremin “Cremin” , testified
that
he has been
a
member of
Local 1 00
for
35
years
and a member
of
its 18
Member
Execulve
Board.
In
his
capacity
as
shop
steward
he
is responsible for contract
administration.
On
August
8,
2013—
the last
day
of
his employment—
the General
Manager Jack Hrad,
called
him in and
told
him that he
had
received
a
written
complaint.
Hrad
then
gave him
five
reasons
for his termination
which
Cremin
could not
recall.
During
a subsequent
meeting
with
Jim Rice, Union
Vice
President in attendance
he learned
that the complaint
pertained to
the
bereavement
luncheon which was
held between 11:30 am. and
5:00
p.m.
on
August
8,
2013.
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 15/28
14
During
the
event
Cremin
and
a part time bartender
“Bernie” served guests
at an
open
bar
He
never
had a
conversation with Martino
but did witi
his
wife
“She
says to
me ‘You never are
smiling ’
i’m
accused of not
smiling
joking but
not
disrespectful. h s her act
the
not
smiling
comment. At the end of the
night
Ms
Martino
gave me a big
hug
and said ‘Thank
you”
Cremin
did not recalled
Martino’s father ordering
three
lemon drop
martinis
“He
was
sitting at
a
table. He was ignored
by
the other
guests. He
asked for
a
vodka
expressed
my condolences. gave him a second vodka.
That was
it He never
ordered
lemon drop
martinis ”
Cremin testified that “Bernie
had
asked him
ho w
to
make this
drink
for three
ladies.
told
him we had all
the
ingredients
at
the
bar
Regarding
the friend of Martino
who
asked for
a
beer the Grievant
testified
that
“the
gu y was hemming about what
to
have
and
served
him
a beer ”
“Pearl the
waitress speaks
very
low
told her to speak up She
asked
for three Rieslings.
She’s an old lady told her the bar
does
not
have Rieslings ”
“The son asked for
wine
He
asked for Santa Margherita told him we
don’t
serve
that
wine
by
the
glass.
gave
him
a
menu
showing that
the wine
was
sold by the
bottle He said ‘never
mind’
no
big
deal ”
Hello
did
not tell him
about complaints.
Cremin
testified that he signed the
LCA
on
12/28/11
because General Manager Sheehan told
him
he would
be
fired
i he
didn’t
do
so.
knew
Sheehan was
going
had
a few
weeks vacation
as
part of
my
non work time
that we
covered.
stop
working in August 2013.
have
not
worked
since.
collected
unemployment
insurance
for s ix months.
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 16/28
On
crossexamination
Cremin testified
that
his
efforts to
seek
work
were
of
no
avail
because
“A
lot
of
places
went
out of
business
don’t
do
Saturday
night
parties
There
is nothing
out
there
went
to
the
Union They
had
nothing
for
me ”
He
did
not
apply
for
employment
opportunities
after
August
2013
was
waiting for
my arbitration
hearing ”
Cremin
denied
having
an y authority to
settle
grievances He
would
discuss
grievances within
the
Club
and
if
no t
resolved
would
call
Jean
Lature
Local
10 0
Organizer
Regarding
the
August
2013 bereavement
luncheon
Cremin
denied
raising
his voice or
telling other
employees
that
they
were
wrong
He
could not
recall
ho w
long
the
guests
were
waiting
for
drinks
but
noted
that the bartende
who
was
assisting
him
couldn’t
make
certain
drinks As
he
pu t
it “They
wanted their
drinks
yesterday
We
were
overwhelmed ”
The
Grievant
admitting telling
Helio
that the guests
“weren’t acting
like it
was a
bereavement
It’s
my place
to judge
people
to
see
if
they’re drunk
and
might get a
DWI ”
Cremin testified
that
he
did
not
read
the LCA or
speak
to a
Union
official
about
it went
on
vacation
two
weeks
before Christmas
and three
weeks
after Sheehan
said ‘If
yo u don’t
sign this
you’re fired ”
According
to
Cremin
never had a
problem in the
Club
until
Sheehan arrived
The Board
didn’t fire me
Sheehan fired me
He said
“Your
services
are no longer
required ”
Referring
to
the
Disciplinary
Report
Forms
attached
to
the
November
16
2011
letter
Cremin
testified that
he
never
signed the
letter
or
saw
the
forms
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 17/28
With
respect to
the 11/14/10
infraction wherein
Cremin purportly told
a
member that he was owed
a
tip, the
Grievant testified that he
did
not
receive the
notice
C.
Ex,
3/
Ex, No,
5). He
denied
the allegation
contained in the
6/2/11
Disciplinary
Report that he
took
food out of
the refrigerator.
C.
Ex.
3/Ex.
No,
1).
“ never saw
the
write
up”
Similarly
denied
was an
allegation
that
on
5/20/14
he was sitting on
the p tio
speaking
to a
guest
instead of
m king
“mulligans
for
twilight
golf.”
C.
Ex.
3/Ex.
No.
10).
Finally,
on redirect examination a
complimentary
letter from
a
members
daughter
was received into
evidence.
U.
Ex. 1 ).
DISCUSSION
Considering the
evidence in its entirety
the
rbitr tor is not
persuaded
that
the Employer has
met its
burden
of proof
by a
preponderance of
the
credible
evidence.
The
rbitr tor not only finds that
the
Last
Chance Agreement
that the
Grievant
Timothy
Cremin signed
on December
28,
2011 was invalid and
unenforceable under
the parties’
CRA
but
the Employer
also
failed
to
establish
that
t
had just
cause to
terminate
the
Grievant’s
employment on
other grounds
pursuant to
Article 6.
A.
t
is undisputed
that the
Grievant
signed the LCA on
12/28/11 without
the
knowledge or
participation of Local 100
of UNITE
HERE, the
sole and
exclusive
collective
bargaining
representative of
Grievant
and
the
only
entity
authorized
under Article 28
of
the CBA to settle
and
dispose
of
grievances
and
complaints.
lthough the
LCA
states that
“Grievant
and
UNITED sic)
HERE
Local
100
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 18/28
17
‘Union’ have
agreed
to
enter into
this Last
Chance Agreement
in settlement
of
the
grievance” there is
no evidence that
the
Union
had
any role in
the process
which resulted
in the Grievant
signing the
document ostensibly
under duress.
The
LCA
is
neither
signed
by
the
Union nor
did
the
Unicri
receive
a copy.
Moreover
Article 28
provides
that
any disposition
of
a complaint
“which involves
the terms
or
application
of
this Agreement
shall
be made
only
after
discussion
with
the
Business
Representative
of
the
Union and
must be
consistent
with
tie
terms
of this Agreement.”
The Employer has
relied
upon the
Grievant’s role
as shop steward
his
membership
on
the 18
member
Executive
Board of
Local
100
and
role
as
a
Union
official
in
negotiating
and administering
contracts
with
the
Club
as
sufficientfor
him
to
negotiate
the
terms
of
the
LCA and
“waive and
release any claims
with
respect to
the
disciplinary
action
taken
by
the
Club
with
respect
to
the matters
referred
to in
the November
16.
2 11
letter
and
this
disciplinary suspension.”
However in the
Arbitrator’s
opinion
no provision
of the
CBA
authorizes
the
Grievant
in
any
of
his capacities
to
settle
his own grievance
or
enter into
an
LCA
without
the
representation
of
the
Union
Article 28
sets
forth
a multi step
“definite
and complete
guides
and
procedures
fo r
the
processing and
settlement
of
grievances as
defined herein ”
stating
that
at
Step
One
in
Section
28.2
that
“Any
disposition
of
such
request
inquiry
or complaint which
involves
the
terms
or
application
of this Agreement
shall be
made
only after discussion
with the
Business
Representative of
the
Union or.
in
his
absence the
Shop Steward
and
must
be
consistent
with the terms
of
this
Agreement.”
Section
28.4
provides
that
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 19/28
‘Any
grievance
appealed shall
be
submitted
to
the
Club
manager
and
he
Union
representative
and
shall
be
discussed
initially
in an
attempt of settlement at
a
mutu lly
convenient
time
between
the Club’s
representative
and
the
employee
involved,
accompanied
by
his Union
representative
and/or designated
Shop
Steward”
Section
28.5 provides
that “
the Union
representative
and Club
manager
are
unable to
resolve the
problem.
within five
5
days
after
their
meeting
in Section 28.4,
a
designated
Union
representative
sh ll meet
with
a
designated
representative
of
the Federation.”
Given
the foregoing
steps,
requiring
representation
of the
Grievantat
each
step by a
nion
official,
there
is
no
contractual
basis
upon which the
Employer
could have
met
with
the
Grievant
alone
and
entered into an [CA
with
him
absent
nion
representation.
Although
a
shop
steward
may represent a
grievant at
Step
One and participate
in
a
discussion
with
the
Club.
it
can
be
clearly inferred
that
when
the
shop
steward
is the
Grievant.
as
here, he
is
entitled
to
representation
by
another
nion
official,
namely the Business
Agent,
who
would
continue to
represent him
i the
grievance
is appealed to
the next step s .
Were
the
Employer’s
interpretation
of
the
CBA
to
prevail, the
Grievant here
would have
fewer
due
process
rights under
the
GrievanceArbitration
procedure
that
the
employees
he represents
as
shop
steward
an outcome
the
parties
undoubtedly
did not
intend or
contemplate.
It
is
well
established that processing
and
settling
grievances
is the
exclusive
province
of
the
nion
and
no
individual
member,
irrespective
of
their
nion title,
can
preempt
that
function
even
on their
own behalf.
While the nion
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 20/28
19
could
enter
into
an LCA
and voluntarily
and expressly
exclude access to
the
grievance-arbitration
procedures
as a
term
and
condition
of the
employees
reinstatement,
there is
no
evidence the
Union
did
so
in this
case.
Steelworkers Local 1165—
Luken Steel
Co. 969
F2d 1468
3d
Cir.
1992 ”Adhering to
the
strong
presumption of
arbitrability the
court
concluded
that
in the
absence of an
express exclusion,
a
last-chance
agreement
is
arbitrable
when the
underlying dispute is
arbitrable, unless the employer
produces
‘strong and
forceful’
evidence
to exclude
from arbitration the
underlying
question whether
the employee
in
fact
violated the
last chance
agreenent.” .
The Union
has cited
persuasive
case law to
the effect
that
an
employer
cannot
engage
in
settlement
discussions
with the
Union
member without
the
presence of
a
Union official or meet
directly with an employee
and
have
the
employee
sign
settlement
and release
form such
as
that contained in
Paragraph
No.
of the LCA.
Apropos
of the
instant case is
the
NLRB’s decision in
Van
Can Co .
United
Steelworkers of
Am.
Local
5632,
AFL-CIO 304
NLRB 1085 1087
1991
where
the
employer offered
reinstatement
to an
employee provided
he
signed
a
last-chance
acknowledgement without
any
Union
participation.
Although the
shop
steward had been
informed
of
the agreement
and was
present at the
meeting for
signature, the
prior direct dealing
with
the
member nullified
the
LCA.
Unlike the cases cited
by
the Employer
such
as
Horvath v. Banco
cialfgrt gs
S.A.
461 Fed, Appx.
61,63 2d Cir.
Feb. 16
2012
where
the court
found that
the plaintiffs
failure
to
read
a
document
was “gross
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 21/28
negligence’
the
reader
in
the instant
case
was
a
Union
member
entitled to Union
representation
and
Union
review of
any documents
he signed,
including
the
LCA.
The
LCA
signed
by
Crernin is
further
negated
by
evidence that
he
was
coerced
into
signing
the
document by former
General
Manager
Sheehan.
Cremin
testified
credibly that
Sheehan
told him that
unless he
signed
he would be
fired.
Moreover,
Cremin acknowledged that
he had no
authority
to
settle
grievances
and
would routinely
refer
these matters to Organizer
Lauture.
Insofar
as
the
Employer’s
assertion
that the
Union
waived its
right
to
challenge the
LCA under
Section
28.1 3)
is concerned, the
record evidence
indicates
that
the
Union
had
neither
knowledge
of
the
LCA
nor
received
a
copy
when
was
entered into
with
Cremin
a
month after
the
November
ii
2011
letter
was sent
to Union
President Granfield.
including
seventeen
Disciplinary Forms
attached
to
the
letter upon
which
the
[CA
was based.
With
the
exception
of
possibly
three
incidents
C.
Ex. 3/Exhibits 5.
10 and
ii
the
Grievant
testified
credibly
that
he
did
not
receive
copies
of
these disciplinary
notices
used by the
Employer to
justify his termination.
Clearly, the
negotiation
of
an
[CA
directly with
a Union
member,
without
the
notification
or involvement
of the
Union
undermines the
terms and
conditions
of
the
CBA,
particularly
its
Grievance-Arbitration
provisions.
oth
the parties
CBA
and
federal labor
law
render
the
[CA
void
and
unenforceable.
B.
Just
Cause
In
applying
the just
cause
standard.
the
Arbitrator
is
generally required to
determine
at
least five factors
1
the
Employer
conducted
a
fair
and
impartial
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 22/28
investigation
prior
to
issuing the discipline
including an opportunity for
the
Grievant to
give
his
side
of
the story;
2
the
Employer has
proven by a
preponderance
of
the
credible evidence
misconduct
or dereliction of
the duty
upon
which the discipline
was
grounded;
3
the Employee
knew
or
should have
known
of
the
existence
of
a
pertinent rule that
was
reasonably related
to
the
business of the
Employer;
4 the
Employee knew or
should have
known the
possible
disciplinary
consequences of
the
violation of the rule;
5
that
the
penalty
administered
was
proportional to
the offense
and not for any
arbitrary or
capricious reason or
indicative of
disparate treatment
Additionally,
implicit in
the concept
of
just cause
in
the
parties’
CBA is
that
the
employee
be
given
a
fair opportunity to
correct his or her conduct or
performance
and that the
penalties
for
noncompliance
be
administered
incrementally or
progressively
before
the
ultimate
penalty of termination
is
imposed The
exception
to
the
principle of progressive
discipline
is
misconduct
that is
sufficiently egregious or
behavior such that
the Grievants
continued
presence
on the job
constitutes
n
unacceptable risk or danger
to
persons
or
property
Contrary to the
principles
of
just
cause
delineated above
the
Employer
re lied on a complaint
from
a
Club
member
that
constituted
hearsay
in
its entirety
did
no t
conduct
an
investigation of the
allegations
made in the
letter of
complaint
and did
not
give the
Grievant
an
opportunity
to
provide
his
side of the
story
before
imposing discipline
Moreover
there
is
an inadequate
record of
progressive
or
corrective discipline
in that
the
Club did not
bring
most
of
the
infractions upon
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 23/28
22
which it
relied
to the
Grievants
attention
and there is no
nexus between the
unproven
infractions described
in
the
disciplinary
notices
occurring
two three
years
earlier
circa 2010 2011
and
used as the
grounds
for
the
Grievants
termination in
ecember2013.
First
the
testimony of
Employer witness Mr.
Martino
consisted
wholly
of
hearsay
He
had
no
first hand
or personal
knowledge
of
the
complaints he
reported
and
that
were
purportedly made
by
guests
at
his
mothe s
bereavement
luncheon.
None of
the
complainants
cited in
Martincls
email testified at
the
hearing. Martino
recounted complaints
that
Cremin was disrespectful
to
his
father
when
he
refused
to
make
three lemon drop
martinis dismissive
of h is
son
when
he
ordered
a glass of
wine
asked his
wife “why she
never smiled ” and
told
a
Mend
trying
to get
a
drink for another
guest
to
“worry
about
himself.”
Not only were none
of
these
complaints
validated by
the
ClulSs
investigation
Cremin credibly
denied
each
allegation
and provided a
plausible
explanation.
He testified that
Martino’s
father didn’t order
the
lemon drop
martinis
bu t rather three
ladles ordered them
from Bernie
the
part time
bartender
Cremin
told
Bemle who didn’t know
how to make the
drinks
that the ingredents
were
available
at the
bar.
Cremin
testified
credibly
that
Martinds son
had
ordered
a
glass
of
Santa M argherita
wine
and
he
had
advised him
that the
Club didn’t sell
this wine
by the
glass Once
he gave
Martinds
son
a
menu
showing
him
that the
wIne was sold by the
bottle
he
changed his mind.
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 24/28
Cremin testified
credibly
that
he
had
a
joking relationship
with
Martino’s
wife where
she jokes with him about not
smiling
a
lot According
to
Cremin
at
the
end
of the event
she gave
him
a
“big
hug”
As the Union correctly
notes
Martino’s version
supports
the Grievanfs
version
of the event
because
Martino acknowledged
that
“his
wife
is
always
smiling whereas Cremin
admitted
that
he
has
a
reputation
for
not
smiling”
Cremin denied
yelling at Pearl
the
waitress
but rather
testified that
since
Pearl “speaks
very
low”
and the bar was
crowded with guests seeking
drinks
he
may have raised his voice
to
overcome
the crowd
noise
when
she asked
for
three
Rieslings
The
rbitrator
deems noteworthy the
fact
that Pearl neither filed
a
complaint nor
testified at
the hearing
The Employer
did not
give Cremin
or the Union
notice
of
his suspension
on August 13
2013
The Union received
a
written
notice
of the Grievanfs
termination
dated December
7
2013
without
the
Employer
stating
the
grounds
upon
which
his
termination
was based
The
Employer
cannot reasonably
rely
on the November 16 2011 letter
sent
to
the Union
President
as
the
basis
for his termination
because
the
Grievant
did not
receive
a copy
of
several of the
Disciplinary
Reports
attached to the
letter
With the
exception
of three incidents
Cremin
challenged at the hearing there is
no evidence
that the
Union o r the
Grievant were apprised
of
his alleged
misconduct Unless the
Grievant
was informed of
the infractions they
cannot be
deemed
conducive
to
progressive or corrective
discipline
since he
could
not
correct
conduct
about
which he had
no
knowledge
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 25/28
24
In
ddition
the infractions
cited
in
Disciplinary
Report Forms
attached to
the November 16 2011 letter pertain to matters unrelated to the
instant
charge of
being “rude
and inhospitable
to a number
of
guests
and the members
f mily”
Assuming the complaints in
Martino’s em il had
been
proven a period
of 2 3 years
would
have
elapsed
without the Grievant
having
committed
similar
misconduct
thereby
diminishing
the grounds for his termination
based
on a
single non egregious
incident.
No nexus was established between
such alleged
incidents
as
slamming drinking glasses into the dishwasher speaking to Club
members
or guests
preparing
incorrect drinks t king food
from
the refrigerator
and not wearing a
tie
and
the incident for which
he was
purportedly
terminated
namely
disrespecting
Club
members and
guests.
the
Award of
Arbitrator Mackenzie she
placed
Cremin
on
a
“final
warning”
for
his
insubordination towards
General Manager
Sheehan. The
Grievant
had
“refused to follow a direct
order
by
his
General
Manager and he
cursed
at physically blocked
and
threatened
the
General
Manager
in the
presence
of staff” The incident occurred
at
the 2009 employee Christmas
Party
and the
award
was issued
in October 2010. Notwithstanding
the
plethora
of
infractions
the
Grievant allegedly incurred since October 2010 the
vast
majority
of which
Cremin had
no notice
the Employer has
no record of
comparable
misconduct
to
which
the
Final
Warning would
be
applicable.
Considering
the totality of the
evidence
adduced by
the
Employer
including the unenforceable LCA nd
the Disciplinary notices most
of which were
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 26/28
unbeknownst
to
the
Grievant
and the Union, the Arbitrator
finds
no just cause
for
the
Grievant’s
termination.
As
a
long term
employee
who
testified
credibly and was
denied Union
representation Cremin is entitled to a make whole remedy. He shall be
reinstated
to his position
as
Club
Bartender
effective immediately with full back
pay
less
unemployment
compensation benefits
seniority
credit and
commensurate fringe benefits.
NOW THEREFORE as
the
duly selected Arbitrator, having
heard the
evidence presented hereby issue the following:
AWARD
1
The
Employer
did not
have
just cause to
terminate
the
Grievant
Timothy
remin
by
implementing
the
terms of his
Last Chance
Agreement.
2 The Employer did no t
have
just
cause to
terminate
the
Grievant
irrespective of
his LCA.
3 The
Grievant shall
be
reinstated to his position as a bartender at the
Westchester Hills
Golf
Club, effective immediately
with
full
back
pay,
less
unemployment
compensation
benefits seniority credit and
commensurate fringe
benefits.
4
The Arbitrator
shall
retain
jurisdiction
to
address
any issues
that
may arise in the
implementation
or
interpretation of the
remedy
portion
of this
award.
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 27/28
January28
2015
RobertT
Simm kjaer
ST TE O F NEW
YORK}
C OU NT Y O F
NEW
YORK} SS
hereby affirm
on
my
oath
as
arbitrator
that
m
the
person
who executed
the
for going instrument
which
is
my
award.
January28 2015
RobertT
Simm kjaer
7/24/2019 Westchester Hills Golf Club
http://slidepdf.com/reader/full/westchester-hills-golf-club 28/28
a
C
‘
C
r
3
I
C
C
C
C
Ca
C
C
C
a
S
C
—
9
-
L
r
9
1
t
c
2
—
U
C
a
F
—
‘
g
L
U
U
—
a
a
H
‘
—
—
r
E
4
C
C