Aponte, Bruno - Arbitration Award - 2012-01-11

7/21/2019 Aponte, Bruno - Arbitration Award - 2012-01-11

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- - - - - - - - - - - - - - - - XIn the Matter of the Arbi t ra t ion betweenMICH EL FISHMAN, PRESIDENT, LOC L 32BJ,SERVICE EMPLOYEES INTERNATIONAL UNION

OP N ON AND AWARDCase 191175/251228

138383/363504- and -S R TOG CONDOMINIUM C/0 J & C L MB MGMT CORP.

- andRE LTY DVISORY BO RD ON L BOR RELATIONS, INC.

APPEARANCESFor the Union:

For the Employer:

For the Real tyAdvisory Board:

Employee:

Premises:

- - X

Associa te General CounselBy: Ryan Borgen, Esq.

Leah LopezJim Hologh

Harry Weinberg, Esq.

Bruno Aponte, GrievantSi lv ia Zehn, t r an s l a to r330 East 7 ~ St ree t

A dispute having ar i sen between Saratoga Condominium c /o J & CL MB M N GEMENT CORP. and the Real ty Advisory Board on LaborRelat ions, Inc. here inaf te r r e fe r r ed to as the Employer ) andLocal 32BJ, Service Employees In ternat ional Union here inaf te rrefer red to as the Union ) concerning 330 E ST 75w STREET, the


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same was submit ted to the Undersigned for a rb i t r a t i on and Awardpursuant to the per t inen t provis ions of the then currentCol lec t ive Bargaining Agreement between the par t i e s a t a hearingscheduled fo r UGUST 13, 2010, DECEMBER 17' 2010, M Y 16, 2011,

UGUST 10, 2011, OCTOBER 17, 2011, NOVEMBER 7' 2011.In a l e t t e r dated FEBRU RY 17, 2010, which was submit ted to

the Off ice of the Contract Arbi t ra to r the Union al leged thefol lowing complaint on beha l f of Bruno Aponte ( Grievant ) andthe same was by mutual consent of the pa r t i e s submit ted to theUndersigned for adjudicat ion and Award.

The Union seeks to have the suspensionrescinded, the member made whole for thethree days' pay and tha t a l l mention of thesuspension be removed from the member'sf i l e .

F CTS

The Grievant , Bruno Aponte, was employed as a p o r t e r forapproximately e ighteen years a t the above premises . On October19, 2009, he was suspended for three days (C.Exh.14-Case No.138383). On February 8, 2010, he was suspended for three days(C.Exh.15-Case No.191175). On Apri l 19, 2010 he was suspendedfor two days (C.Exh.16-Case No. 251228). Fina l ly on December 8,2010, he was terminated (C.Exh.19-Case No. 363504) . The caseswere combined and heard over severa l days concluding on November7, 2011.

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OP N ON

MPLOY RS POS T ON

The Employer submit ted numerous documents in suppor t of i t scase as well as severa l witnesses . The f i r s t suspension onOctober 19, 2009, was for three days and was given to theGrievant for fa i l ing to perform h is du t ies a f t e r having beenwarned in wri t ing and verbal ly severa l t imes C . Exh . 14 ) . Thesecond suspension was i ssued on February 8, 2010, a f t e r aninspect ion of the lobby Leah Lopez, the Account Manager, foundtha t the inclement weather runners in the lobby were l e f t inplace al though they were not requi red In add i t ion the lobbyf loor had not been moped and the re was cake on the f loor of thecompactor room. When the Grievant was t o ld by the Super intendentto c lean the lobby f loor and the compactor room, he claimed hedid even though the f loor was st ll d i r t y e cleaned around thecompactor room but when he was f in ished there was st ll cake onthe f loo r C.Exh.15).

The next suspension, fo r two days was i ssued on Apri l 19,2010. This suspension was i ssued for again f a i l i ng to performhis du t ies which had to be done by another employee,s pe c i f i c a l l y the mopping of the lobby f loors and cleaning the

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sidewalk in f ront of the bui ld ing on a dai ly bas is .Fina l ly on December 8, 2010, Aponte was terminated for

leaving the compactor room in complete d i sa r ray C.Exh.19). Theemployee who r e l i eved him, Sharlu Bosowiz, complained t ha t theGrievant l e f t a mess in the compactor room. e took a number ofp ic tu res with his ce l l phone camera C.Exhs.20A to 20G to showmanagement the condi t ions l e f t by the Grievant .

The employee t e s t i f i e d and ver i f ied t ha t he took the photoson the day in ques t ion because of the condi t ion he found in thecompactor room.

In the terminat ion l e t t e r in addi t ion to the problem withthe compactor room, the Employer re fe r red to recent inc identswhere the Grievant in an insubordinate manner re fused to sweepand mop the s ta i rwe l l s . e a l so re fused to submit reques ts inwri t ing for t ime off for a c l i n i c day and a personal day off .

All of the accusat ions agains t the Grievant were proven bysubs tan t i a l evidence, both by ora l tes t imony and ln wri t t endocuments.

The Grievant may have long se rv ice but the Employer claimst was mostly poor and despi te his senior i ty the re comes a t ime

when the behavior of the Grievant can no longer be t o l e ra t ed .Here tha t point was reached a while ago and the Employer

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suspended and t e rmina ted the Grievant fo r j u s t cause. TheEmployer respec t fu l ly reques ts t ha t a l l the gr ievances be deniedin a l l respects .

UN ON POS T ON

The Union emphasis t ha t the Grievant had very long serv icein the words of the Grievant , e ighteen years and e igh t months.The Union argues t ha t most of the accusa t ions agains t theGrievant were fa l se . The Grievant t e s t i f i e d a t length andclaimed the accusat ions were fa l se . e did agree tha t the du t iesl i s t e d were his but sa id tha t he always did his job. e alsopointed out tha t while the dut ies l i s t e d by the Employer in h isexhib i t s were his du t ies he was not expected to do a l l thedu t ies every day. The Union has pro tes ted every suspension theGrievant received and a number of the warning l e t t e r s . The Unionargues tha t the Grievant did h i s job and was being t rea tedunfa i r ly and reques ts t ha t the Grievant should be reimbursed fo ra l l the suspensions grieved and re turned to his former pos i t ionwith fu l l back pay, senior i ty and benef i t s .


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DIS USSION

There was lengthy tes t imony by the Employer s witnessesincluding Leah Lopez, the Account Manager, Balozk, theSuper intendent; and Shar lu Bosowiz, a fe l low employee. TheAccount Manager and the Super intendent t e s t i f i e d to numerousdiscuss ions and warnings with the Grievant on an almost da i lybas is to no ava i l . They changed his sh i f t to the daytime so theycould superv i se h i s work bet t e r . When t ha t fa i led , they thens t a r t e d to give wri t t en warnings and f ina l ly suspensions. Theyboth t e s t i f i e d tha t they st ll found the bui ld ing d i r t y and theGrievant unresponsive to t he i r warnings. Jus t pr io r to h ist e rmina t ion on December 5, 2010, a coworker complained t ha t whenhe ar r ived a t work a t 3:00 pm he found the compactor room ind i sa r ray . e took a number of photos a t approximate ly 3:10 pm tover i fy what he found. These photos were a very vividconfi rmat ion of the coworker s tes t imony. The compactor room wasin complete disarray . Yet the Grievant who l e f t work a t 3:00 pmdenied tha t he l e f t the compactor room in t ha t condi t ion . Hisdenia l , despi te the evidence of the photos and tes t imony of thecoworker i s complete ly inc red ib le . The Grievant ' s whole defensei s t ha t the accusa t ion of the Employer i s fa l se . e admitstha t the du t ies submit ted by the Employer are h is but argues


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tha t other employees were f a i l i ng to perform t he i r job. On a fewoccasions , he claimed he had done the work ye t he re fused to dothe job when di rec ted by his Superintendent . He was also accusedof applying for personal t ime off to which he was not e n t i t l e d ,s pe c i f i c a l l y his bi r thday. When he was confronted with the f ac ttha t December 24, l i s t e d in his reques t for a bi r thday hol iday,was not in fac t h is bi r thday, he blamed the agency who he hiredto wri te the l e t t e r .

The Grievant was also confronted with h is fa i lure toreques t c l in ic days in wri t ing . When the Super intendentreques ted a wri t t en reques t as i s required, the Grievant re fusedsaying I wi l l see you a t Arbi t r a t ion . e admit ted t h i s oncross examination. The Union points out t ha t a number of thewarning l e t t e r s given to the Grievant were pro tes ted by theUnion even though they were unable to br ing them to a rb i t r a t i on .

After reviewing a l l the warnings, suspensions and tes t imonyof the wi tnesses , I f ind t ha t the Grievant was warned, suspendedand terminated for j u s t cause. The tes t imony of the Grievant i scomplete ly inc red ib le in the face of a l l the physica l evidence.In pa r t i c u l a r , how he could c la im t ha t he l e f t the compactorroom complete ly clean on December 5, 2010 a t 3:00 pm when thephotos taken a t 3:10 pm on the same day show the compactor room


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in comple te di sa r ray . Even i someone wanted to se t him upthere i s no way t h a t such a co n d i t i o n could be done in t enminutes .

The Grievan t , it i s t r u e i s a long s e rv i ce employee fo rmore t han e igh teen years and t h a t must be cons ide red . Hisd en i a l s however a re i nc red ib le in the face o f c l e a r evidencet h a t he was not doing hi s job proper ly . Despi t e the fac t t h a tthe Employer found on numerous occas ions t h a t h i s work e i t h e rnot done o r done so poor ly , he cla imed t h a t he had e i t h e r donethe work o r he blamed some o t h e r employee. Not only was hed i s c i p l i n e d fo r f a i l u r e to do hi s requ i red t asks but a l so fo rhi s i n su b o rd in a t e a t t i t u d e . An example i s hi s r e fu s a l to submitdocuments reques ted by hi s Super in tenden t . He admi t t ed t h a t aw r i t t e n r eq u es t was necessary bu t he r e fu sed and t o ld theSuper in tenden t I w i l l see you a t the A rb i t r a t i o n .

The Employer did not v io l a t e the Co l l ec t i v e Bargaining whenit suspended and t e rmina ted the Grievan t .


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W RD

1) Grievance No. 138383 three day suspension) i sdenied .

2) Grievance No. 191175 three day suspension. ) i sdenied .

3) Grievance 251228 two day suspension. ) i s denied.4 The Grievant was t e rmina ted for j u s t cause. The

gr ievance i s denied in a l l respects .

DATE: January 11, 2012 A N N E ~ / 'Contract Arb i t r a to r

STATE OF NEW YORKSS :

OUNTY OF NEW YORKI hereby a f f i rm pursuant to CPLR Sec. 7507 t ha t I am theindiv idua l descr ibed in and who executed t h i s instrument whichi s my Award.

DATE: January 11, 2012

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Aponte, Bruno - Arbitration Award - 2012-01-11

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