BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
HOTEL EMPLOYEES AND RESTAURANT
LOCAL UNION NO. 122
PFISTER HOTEL CORPORATION
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Naomi Soldon,
1555 North Rivercenter Drive, Suite 202, P. O. Box 12993, Milwaukee, Wisconsin 53212,
appearing on behalf of HERE Local No. 122, joined by Attorney William
Ramsey, on the brief.
Beck, Chaet, Molony & Bamberger, S.C., by Attorney Barry L.
Chaet, Two Plaza East, Suite 1085, 330 East Kilbourn Avenue, Milwaukee,
Wisconsin 53202, appearing on behalf of Pfister Hotel Corporation.
Pursuant to the provisions of the collective bargaining agreement between the parties,
Employees and Restaurant Employees Local Union No. 122 (hereinafter referred to as the
and the Pfister Hotel Corporation (hereinafter referred to as the Company or the Hotel)
that the Wisconsin Employment Relations Commission designate Daniel Nielsen of its staff
arbitrator of a dispute over the termination of employe Richard Adams. The undersigned
designated. Hearings were held on August 27 and October 4, 1999, in Milwaukee,
which time the parties were afforded full opportunity to present such testimony, exhibits,
evidence and arguments as were relevant to the dispute. The parties submitted post-hearing
which were exchanged through the undersigned on November 24, 1999, whereupon the
Now, having considered the testimony, exhibits, other evidence, contract language,
of the parties and the record as a whole, the undersigned makes the following Award.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties agree that the issues before the arbitrator are:
1. Was the grievant discharged for just cause?
2. If not, what is the appropriate remedy?
ARTICLE II UNION
SECURITY, HIRING AND DISCHARGE
. . .
Section 8. Employer may discharge an employee
for just cause, subject to subsequent
arbitration when demanded by the Union.
. . .
ARTICLE III GRIEVANCE AND ARBITRATION
. . .
Section 4. In the case of any grievance seeking
retroactive pay of any kind, retroactive pay
shall not be granted for any period greater than seven (7) days prior to the date of the filing
grievance. Any grievance not filed within thirty (30) days (seven (7) days in the case of a
of the event giving rise to the grievance will not be accepted, processed or arbitrable.
The Company operates a hotel in downtown Milwaukee. Its non-supervisory
including wait staff, are represented by the Union. In the hotel is a fine dining establishment
the English Room. Timothy Hampton is the Manager of the English Room. The grievant,
Adams, was employed as a server in the English Room for six years until his discharge in
1999 for failing to charge a guest for a drink.
On March 8th, the grievant served a party of four who dined
between 7:30 p.m. and 10:00
p.m. After they were done eating, they ordered a glass of Muscat and a glass of Lagavullin,
expensive single malt Scotch. The diners were charged for the Muscat, but not for the
is a considerable disagreement among the witnesses as to how this came about:
According to Tom Kelly, the bartender on duty,
the grievant came to the bar and asked for the
drinks, which Kelly poured for him. He knew that they had Lagavullin on hand, because the
bar makes it a point to always have at least two bottles of each Scotch they carry. When an
order is brought up, the server is supposed to enter it into the computer, which causes the
order to be placed with the kitchen or the bar, and automatically adds the item to the
customer's bill. If the server is quite busy, he might ask the bartender to enter an order into
the computer, and the bartender will do so as a matter of courtesy. When that happens, the
server always asks the bartender to enter the entire order, not simply one item. In this case,
the grievant did not ask Kelly to enter the order. After the grievant took the wine and the
Scotch to the table, Kelly noticed that he had entered the wine, but not the Scotch. The
restaurant charges $9.00 for a glass of Lagavullin. Kelly wasn't sure if the Scotch was
supposed to be complimentary or if it was simply a mistake. Since the grievant wasn't in the
immediate vicinity, Kelly told Tim Hampton that the grievant had neglected to enter the
According to Tim Hampton, when Kelly told
him that the Scotch had not been rung up, he went
to the kitchen and found the grievant. He told him to retrieve the bill from the table, explain
the mistake to the guests, and add the drink. The grievant made no comment, and Hampton
then left the kitchen to go upstairs. When he returned, the grievant told him he hadn't
corrected the check. He had no explanation, other than to say he had simply forgotten to
it up when it was served. Since one of the diners was staying at the Hotel and had charged
the meal to his room, Hampton had the room charge adjusted to account for the Scotch.
According to the Grievant, he went to the bar
and entered the wine order into the computer
system. As he did this, he asked the bartender, Tom Kelly, if they had Lagavullin since, in
experience, the bar sometimes had it in stock and sometimes
did not. Kelly said they did have it, and the grievant asked him to pour a glass and
into the computer. The grievant did not enter it himself, because if they had not had it on
hand he didn't want to have to delete the order. Kelly said he would enter the order on the
computer. He poured the drink and the grievant served it and the wine to the customers.
After the party of four left, Tim Hampton approached the grievant and told him he
rung up the Scotch. The grievant reviewed the bill and said "You're right what do
want me to do? Do you want me to go to the lobby and look for them?" Hampton told the
grievant he would take care of it, and that he didn't need to do anything.
On March 9th, Hampton met with the staff of the Hotel's Human
Resources office, and
recommended to them that the grievant be terminated. On the evening of the
12th, the grievant's next
scheduled shift, Hampton, Human Resources Director Paula Rauembuehler and Food and
Manager Nabil Hammoud met with the grievant and advised him that he was being
was provided with a notice of termination spelling out the grounds:
On 3/8/99 you had obtained two beverages from the bartender for
a table. It is proper procedure
that all food and beverages be correctly accounted for in the Micros system at the time of the
One beverage (Lavagullin scotch up) was not accounted for. You were instructed to add the
beverage to the guest check before the guest settled the bill. This drink was not accounted
according to the check the guest signed and no manager granted approval to provide this
complimentary. This failure to follow proper procedure of accounting for all food and
not be tolerated. This failure in accounting for a product, if not caught, would have resulted
in a loss
to the company. It is your responsibility to account for all products provided. You are
terminated for consistent failure to follow procedures including inappropriate handling of
The instant grievance was filed, and it was not resolved in the lower steps of the
At the arbitration hearings, in addition to the testimony recited above, the following evidence
Paula Rauembuehler testified that there had been problems with the grievant since the
of 1998. At that time, there had been complaints from 6 or 7 other employes about the
threatening co-workers, claiming to have a gun, overloading trays so other staff could not
safely, and deliberately bumping staff members who were carrying trays and refusing to do
A meeting was held in May between Rauembuehler, Hammoud, Hampton, the grievant and
Union stewards to discuss the complaints, and the grievant
explained that this was all a case of others misunderstanding his sense of humor and
his different style
of working. A second meeting was held with the employes of the restaurant two days later
the air, and the grievant said that he would work to improve things, but that people would
make allowances for his differences as well.
Rauembuehler testified that accounting for product is very important in the industry
recounted three prior instances in which employes had been terminated for a single incident
violating cash handling rules. One employe failed to properly account for a complimentary
a customer, another failed to ring up a breakfast for a regular customer and a third gave free
to a customer. All three employes were Union members and all three were terminated. Two
prior warning notices in their records, but the employe who gave away the coffee had a clean
disciplinary record. Two of the employes filed grievances, but in all three cases the
The Hotel introduced evidence of prior discipline against the grievant. The grievant
the validity of this prior discipline, alleging in some instances that he was never made aware
of it, or
was told of it in an untimely fashion. He also testified that some of the incidents were not
accurately in the warnings and that no discipline was warranted:
May 14, 1998 Verbal warning for insubordination to Hampton.
According to Hampton, the
grievant was wasting time in the room service area, and he told him to get to
work and help set-up the dining room. The grievant told him that he didn't
have to, although he ultimately did help with the set-up. Hampton said he
prepared the counseling notice at the end of the shift, but the grievant refused
to sign for it. The grievant alleges that the first time he ever saw this notice
was in late 1998 when he asked to see his file. The Union's Business
Manager, Sam Gallo testified that there was no copy of this notice in the
Union's files and that it would have been filed if it had ever been received.
Human Resources Assistant Susan Pedderson testified that this notice, and all
disciplinary notices, were sent to the Union once or twice per week, in the
normal course of business.
May 15, 1998 Written warning for punching in early and working
According to Hampton, he discovered that the grievant had punched in at
3:31 p.m. for his 4:00 p.m. shift. Hampton said he prepared the warning the
following day and presented it to the grievant, who became very upset and
refused to sign it. The grievant testified that he never saw this notice until
three months later, and by that time he
could not even remember such an incident. The Union's Business
Sam Gallo testified that there was no copy of this notice in the Union's files
and that it would have been filed if it had ever been received.
September 21, 1998 A suspension pending investigation for failing to
complete his duties and lying
about being ill. According to Hampton, the grievant wanted to work his area
alone, but Hampton told him he had to work as part of a team. The grievant
walked away, then returned five minutes later, claiming to be sick. He told
the grievant he needed him, but the grievant insisted he'd become sick from
eating in the cafeteria. Hampton told him to bring in a doctor's slip. The
grievant alleges he received this notice a month after it was issued, and the
Union alleges it never received a copy.
December 13, 1998 A written warning for violating cash/credit handling
procedure by accepting
a discount coupon that should not have been accepted on a Saturday night,
and not correctly submitting the check. According to Hampton, the restaurant
stopped accepting the coupons two weeks earlier, and the staff had been
advised of this several times. The grievant alleges he never received this
notice, while the Union did receive a copy.
December 13, 1998 A written warning for insubordination in threatening
Hampton. According to
Hampton, the grievant was upset about his guest count. Hampton told him
the guest count was fair, and the grievant replied "I'll show you what's fair."
Hampton took his tone and manner to be threatening, and wrote up a notice.
The grievant refused to sign the notice. The grievant alleges he never
received this notice, while the Union did receive a copy.
December 13, 1998 Two counseling notices for violating cash/credit handling
procedures, one for
accepting a coupon that should not have been accepted on Saturday nights
and one for voiding a transaction without Hampton's approval. The Human
Resources office advised Hampton to withdraw these two warnings, and he
did so. In the case of the discount coupon, they felt he would not have been
able to respond to the prior warning on this subject, so it was not fair to issue
another. In the case of the voided transaction, they felt the violation was
technical and unintentional.
January 4, 1999 A written warning for improperly calling in sick and
failing to maintain regular
attendance. According to Hampton, he received a phone message from the
grievant saying he needed to know if he was needed at
work. He tried to reach the grievant, speaking twice with the
daughter and then getting an answering machine. The grievant did not call
back and did not give the required four-hour notice that he would not be into
work. Thus he was written up for it. According to the grievant, he was in the
early stages of pneumonia. He filed a grievance over this notice, and the
grievance was resolved on the basis of leaving the notice in his file.
January 29, 1999 A suspension for refusal to help other employes set up
the dining room.
According to Hampton, the grievant was chatting with another server in the
Room Service area when he should have been working. He told him to get
to work. Later, a customer asked Hampton who his server was supposed to
be. Hampton went and again found the grievant chatting in the Room Service
area. Hampton said the grievant became very agitated and he felt threatened
so he took him up to the security desk and gave him a notice of suspension for
the remainder of his shift. The grievant refused to sign the notice, so
Hampton had the security guard witness the refusal. According to the
grievant, he was in the Room Service area waiting for the cook to answer a
question. When Hampton accosted him, he told Hampton the entire situation
was ridiculous. Hampton told him that if he didn't like it he could go home.
When he told Hampton it was up to him, Hampton told him to go home.
Hampton never used the term "suspension" to describe this. The grievant and
the Union both acknowledge receiving this notice.
The grievant testified that there had been some friction between other employes and
the Spring of 1998. In part this was due to the fact that the other employes misinterpreted
comments as being directed at them, rather than being general comments. In part, he
to the fact that he worked harder than most employes, and demanded that they work just as
when they were teamed with him. He preferred to work alone, rather than in teams, because
exercise greater control over the quality of the service.
The grievant denied that he had ever intentionally provided a complimentary beverage
anyone without authorization. He agreed that even an honest mistake with a guest check
to discipline, but stated that Hampton had deliberately delayed mentioning the check until
guests left so he could not correct the error, and then invented his version of events in order
discharging him. Hampton was known to be a homosexual. In May of 1998, Hampton and
grievant were sitting at the bar at the end of a shift, and Hampton asked if he had ever been
a man. The grievant said that was not his thing, and Hampton said that all men had a
and that under the right circumstance he would bet that the grievant would go out with a
grievant replied that maybe some men would, but that he would not. Hampton repeated that
the right circumstances he bet the
grievant would go out with a man. After this conversation, the grievant noticed that
much more critical of him, and assigned him fewer guests and more undesirable work. It
to the point where Hampton was hyper-critical and began making unjust accusations against
February of 1999, the grievant filed a sexual harassment complaint with the Hotel, accusing
of harassing him on the basis of the May 1999 discussion. At the end of March 1999, he
charges with the Equal Rights Division and the EEOC, alleging retaliatory discharge.
The grievant said that Kelly was a good bartender, but that he
was not the regular bartender and was
unfamiliar with the stocking of the bar, and thus the testimony that they always kept
Lagavullin in stock should be
discounted. He had not had any problems with Kelly before, but he speculated that Kelly
was lying to support
Hampton's version of events because the two were lovers. He had observed the two having
lovers' quarrels and
leaving work together from time to time, and their relationship was common
With respect to the grievant's discrimination claim,
Rauembuehler testified that she investigated the claim,
but could find no one who had a similar experience or could provide any information to
support the notion that
Hampton was propositioning employes.
Additional facts, as necessary, are set forth below.
ARGUMENTS OF THE PARTIES
The Position of the Employer
The Employer takes the position that the grievant was discharged for just cause and
grievance should be denied. The grievant was well aware of the Hotel's rules, yet could not
himself to comply with them on any consistent basis. This is in keeping with his personal
being disruptive, uncooperative and even physically threatening to his co-workers. The
to deal informally with the grievant's problems, holding two meetings in May of 1998 for the
of clearing the air between him and his fellow employes. Notwithstanding his promises to
the grievant continued to engage in inappropriate behaviors, leading to progressive discipline.
Between May of 1998 and his discharge in March of 1999, the grievant received ten
notices. Two were removed from his file, and are not in issue here, leaving eight acts of
in the space of ten months. Clearly progressive discipline has not worked, and the Hotel is
to move on to the discharge step.
The Hotel disputes the Union's claim that progressive discipline has not been
because some of this discipline was not known to the grievant. Hampton's testimony that he
the grievant copies of each notice, but the grievant refused to sign them is inherently
more plausible. The grievant's story changed with each retelling, as he initially
claimed he'd never
seen the discipline, then saying he'd seen it only in December. Yet in December, he did not
the inclusion of any "secret" discipline in his file. Even if it had been unknown to him
point, he could have challenged it when it became known and, having failed to do so, he
attack the validity of the prior discipline. Moreover, he admits knowing of the two
disciplinary notices and the two January disciplinary notices. These should have sufficed to
on warning that he had to improve, particularly since both January notices expressly advised
future violations of work rules could lead to termination. Under any interpretation of the
Hotel repeatedly tried to modify the grievant's behavior through progressive discipline. Only
it became clear that he would not improve did the Hotel take the final step of terminating his
Even if there had been no prior discipline in the grievant's record, the March incident
sufficiently serious to warrant termination on its own merits. The grievant failed to include a
for an expensive drink on a customer's bill. When this was brought to his attention, he lied
claimed the bartender was supposed to do this. Even after being told to correct the bill, the
failed to do so. The failure to correctly bill the drink violates the policies on cash and credit
and the refusal to follow his Manager's order constitutes insubordination. The fundamental
that a restaurant cannot tolerate employes giving away its product, particularly items like
Scotch where the Hotel's profit margin is highest. In the only two similar cases in the past,
employes, who had clean disciplinary records, were immediately terminated, with no
The precedent has been set for summary termination in cases of giving away the Hotel's food
beverage products, and the grievant is not entitled to special treatment.
It is well established that the cumulative weight of prior offenses can lead to
where no one offense, standing alone, is serious enough to justify termination. That is the
of progressive discipline. In the grievant's case, his record shows numerous offenses, some
serious, all within a relatively short period of time. He was clearly guilty of violating
procedures on March 8th, and of insubordination. The penalty imposed was
consistent with that
meted out in prior cases of the same type. Given all of this, the arbitrator should defer to
progressive discipline system, and should not substitute his judgment for that of the
Finally, the Employer argues that the grievant's claim that the discharge was in
his sexual harassment complaint is simply not credible. The complaint was filed in February
after the grievant had twice been warned that he was on the verge of discharge for his
This was nine months after Hampton allegedly "harassed" him. As described by the
Hampton engaged in a discussion with him about whether any man, under the right
would consider a homosexual encounter. The grievant does not claim that Hampton asked
propositioned him or suggested any type of personal relationship. Hampton credibly denied
conversation ever took place, and the Hotel's investigation found nothing to corroborate the
grievant's story. Even if it had taken
place as the grievant describes, the conversation is not harassment under any definition
of the term.
The arbitrator should see the sexual harassment compliant for what it is a red herring
employe who knew his misconduct was catching up to him. For all of these reasons, the
that the grievance be denied.
The Position of the Union
The Union takes the position that there was not just cause for discharge, and asks that
grievant be reinstated and made whole for his losses. The Hotel utterly failed to prove any
misconduct by the grievant. He is accused of intentionally refusing to correct a bill, leaving
charges for a rare and expensive Scotch after being told by his manager to include it. The
evidence that Mr. Hampton told him to change the bill is Mr. Hampton's testimony.
only evidence of the grievant's alleged past performance problems is Mr. Hampton's
Hampton, however, is not a disinterested party, and his uncorroborated charges cannot form
for a discharge. A fair reading of the record discloses a personality conflict between the two
and perhaps a vendetta against the grievant because he spurned Hampton's romantic
any event, the discipline here comes down to one man's word against the other's, and that is
basis on which to discharge an otherwise competent employe.
Recognizing the weakness of its case for discharge, the Hotel attempted to bolster its
arguments by introducing evidence of seven prior disciplines. However, the record shows
of these "disciplinary notices" were never made known to the grievant and/or the Union:
May 14, 1998 Insubordination The grievant and the Union
never received this notice.
May 15, 1998 Punching in early The grievant and the Union
never received this notice.
September 21, 1998 Lying about being ill Grievant received the
notice a month later, but the
Union never received a copy.
December 13, 1998 Four counseling notices two for accepting a
coupon that should not have
been accepted on Saturday nights one for voiding a transaction without
Hampton's approval one for threatening Hampton. The Human Resources
office voided two of these warnings, and the other two were received by the
Union, but not by the grievant.
January 4, 1999 Improperly calling in sick The grievant had
pneumonia and called in, but
Hampton felt his telephone message was unclear. The grievant was informed
of this notice.
January 29, 1999 Refused to help other employes set up the dining room
grievant and the Union received this notice.
These alleged disciplines are fundamentally flawed under a just cause standard. Each
disciplines was initiated by Hampton and he is the Hotel's sole witness to all seven incidents.
Human Resources Office did not interview any other person before accepting Hampton's
events, even though in some cases there were other employes in the vicinity or involved in
incidents. Moreover, the grievant was not even informed of the majority of these
Hampton claimed that he gave the grievant a chance to sign the warning notices, but that the
refused. The grievant denies this, and the fact that the Union did not log in any grievances
in at least
three cases very strongly indicates that the warnings were never actually issued. They were
placed in the grievant's file. Discipline without notice serves no valid purpose, and the
cannot give any weight to the secret warnings as proof of progressive discipline.
Even if there was some basis for believing that the grievant deliberately failed to
charge for the Scotch on a patron's bill, discharge is clearly an excessive and inappropriate
The progression of discipline claimed by the Hotel is flawed by their failure to advise the
he was being disciplined. The March incident, standing alone, cannot sustain a discharge.
no evidence that the grievant intended to let his customer have the Scotch without paying for
most, this is a case of inadvertence. The grievant believed the bartender had charged the
drink to the
patron's bill. Discharge for an isolated mistake is alien to a just cause standard. Given that
grievant never received any discipline before Mr. Hampton became his supervisor in the Fall
then rapidly accumulated eight offenses, all initiated by Hampton, including a discharge for
plainly a minor matter, it should be clear to the arbitrator that this is a case of a supervisor
his authority to seize the upper hand in a personality clash. The grievant should be
reinstated to his
former position and made whole for his losses.
The Employer proceeds on the basis of two theories. Its primary theory is that this is
of progressive discipline and that the discharge decision is supported by the cumulative
weight of the
grievant's record. In the alternative, the Employer urges that, even if the arbitrator has
the prior record, the March 8th incident justifies termination on its own
merits. The threshold question
is whether the grievant intentionally failed to charge his customers for a drink, as the Hotel
or whether this was a simple mix-up between him and the bartender as the Union suggests.
The March 8th Incident
In large part this determination is a credibility question. While Kelly and Hampton's
are consistent with one another, it is not really possible to blend them with the grievant's
have a coherent version of events. Hampton must be entirely fabricating his story if the
testimony is accepted. As for Kelly, the Union suggests in its brief that he may simply have
confused or have forgotten about the grievant asking him to enter the Scotch in the computer
or he may have been relying on his friend Hampton's version of events. On the contrary, it
nearly impossible to conjure some innocent explanation for Kelly's role if the grievant is
truth. According to the grievant, Kelly said "Yes" when he asked him if he would enter the
him, so Kelly must have been aware of the request. There is no dispute that, a few minutes
Kelly told Hampton that the grievant had failed to enter the drink. Thus Kelly must be
lying when he denies that the grievant asked him to enter the drink. Indeed, Kelly must be
party in attempting to cause trouble for the grievant, since he must first have decided not to
drink, and then to draw Hampton's attention to it.
In addition to the problems with Kelly's role, there are problems with the grievant's
explanation of events, two of them notable. He explained that he entered the wine but asked
to enter the Scotch because he did not know if they had Lagavullin in stock and he didn't
enter the drink and then have to engage in the time-consuming process of deleting the entry
system if they were out. Kelly and Hampton both testified that they always kept Lagavullin
calling into question the grievant's claim that sometimes they were out of the brand. More
significant, however, is the grievant's own testimony. He said that he went to the bar, asked
had the Scotch, and Kelly looked and replied "yes." He then asked if he would pour one and
it into the system. At the point he asked Kelly to enter the drink in the computer, he knew it
stock, and thus there was no possibility that he would have to delete an entry, which was his
for asking Kelly to make the entry in the first place. He waited for the drinks and then
so he wasn't drawn away from the computer system at any point, and he does not claim that
else was using the station. In short, there was no reason for him to ask Kelly to make the
The other troubling aspect of the grievant's version is that when Hampton approached him,
mentioned that Kelly had promised to enter the drink. This is not as troubling as the rather
explanation he gave for asking Kelly to make the entry for him, but it would make sense to
Manager why the drink wasn't entered, particularly since he felt Hampton was out to get
1/ The grievant did explain that the guests
wanted to take the drinks to their room, so he was in a hurry to get
the bill, but having Kelly make the entry while the grievant waited for the drinks would not
speed up the process
of generating the bill.
The grievant did speculate that Kelly and Hampton were colluding with one another
Hampton had a vendetta against him and Kelly was Hampton's lover. Kelly testified that he
friendly terms with Hampton, but that the two of them had never socialized together. Even
that Kelly perjured himself on that point, he must be incredibly quick-witted, since as noted
entire scenario depends upon him deciding on the spur of the moment not to make the
so as to lay blame on the grievant. This conspiracy theory is simply too elegant to be
more reasonable conclusion, and the one that I draw, is that the grievant did not ask Kelly to
the drink into the computer system.
The conclusion that the grievant did not ask Kelly to enter the drink necessarily leads
number of other conclusions. The first and most obvious is that it is more likely than not
grievant is lying about the other events of the evening, including whether Hampton spoke to
the kitchen before the guests left. Since he was at the computer station entering a drink
only entered one of the two drinks, it might be fairly concluded that he intentionally left off
drink in order to curry favor with a table that had a fairly large bill and could be expected to
large tip. The alternative is to conclude that he somehow forgot one of the two drinks while
standing at the computer, an explanation that he does not offer and that does not make a
of sense. If he intentionally left the Scotch off the bill and represented to the customer that
Scotch was on the house, it would explain why he would not have gone back to the table to
the bill when Hampton told him to do so. Going back to the table would require alienating
customer and admitting that the drink had not been authorized. Not going back to the table
left open the possibility that the incident could be passed off as a mistake.
Whatever the grievant's initial subjective intentions were, I conclude that he did fail
the drink, and thereby violated the established procedures for cash and credit handling. I
conclude that the preponderance of the evidence establishes that he failed to follow
to correct the bill, which ultimately makes this an intentional failure to bill for the drink.
the Union's claim that this conclusion requires clear and convincing evidence, this is not an
that constitutes a criminal offense or involves some appreciable degree of moral turpitude.
it were, the conclusion that the grievant's testimony cannot be credited leaves me with the
of Kelly and Hampton. Their testimony is not inherently implausible instead it holds
on close review. If I credit them, as I do, the evidence is clear and convincing.
For the foregoing reasons, I have concluded that the Hotel had just cause to discipline
grievant on March 8, 1999. The question then is whether it had just cause to discharge him.
conclude that it did have just cause for discharge, both because of the seriousness of the
because of his prior disciplinary history.
The Appropriate Penalty
While the choice of a penalty is the Employer's in the first instance, it is subject to
modification in the grievance procedure and in arbitration if circumstances warrant and the
does not forbid such modification. Such a modification is not an act of leniency, since
within the province of an employer. Instead it turns on mitigating factors and such
notions of fairness as equality of treatment and proportionality. Proportionality is a matter of
Some offenses are treated differently in different industries. Giving away product in the food
beverage service industry is generally considered a fairly serious offense, since employes
income is driven largely by tips have an incentive to seek the customer's favor, and the
loss by the Employer is large. The evidence here indicates that the Hotel has treated this as
serious matter. There is unrefuted testimony in the record from Rauembuehler that the Hotel
discharged three bargaining unit employes in the past three years for a first offense of
failing to charge for food and beverages. At least one of the discharges -- involving a free
coffee to a former employe -- was challenged in the grievance procedure. In all three cases,
discharge decisions were sustained. The Union distinguishes those cases because the
initially decided to give the product away, while here the failure to bill was at least arguably
of inadvertence. This distinction is not persuasive, because the facts do not bear it out. As
above, if the grievant did not ask Kelly to enter the drink, it is far more likely than not that
intentionally failed to ring it up. Even if he didn't, his failure to follow Hampton's order to
the bill was an intentional decision, and amounted to the same thing. Thus the penalty here
is in line
with the treatment accorded other, similarly situated employes.
Even if the grievant's failure to enter the drink and to correct the bill were somehow
unintentional, rendering discharge inappropriate for a first offense, the grievant's prior
record supports the imposition of a harsher penalty than would be called for in the case of
employe. In the ten months preceding the discharge, the grievant received one verbal
written warnings and two suspensions. The second suspension was imposed five weeks
incident, together with a warning that another infraction could lead to termination. The
characterizes this mass of discipline as the result of a personality conflict between Hampton
grievant, and argues that the grievant was unaware of much of the discipline because
not give him copies of the notices. Discipline based solely on personality conflicts with a
is plainly improper, and that is one reason that parties negotiate just cause provisions and
procedures. The grievant did not avail himself of the protections of the contract, and it is
that discipline which is not grieved is thereafter presumed to have been imposed for just
important caveat to this rule is the basic notion that someone cannot be held responsible for
grievance over a disciplinary warning that he is not aware of. Timelines for filing
commonly understood to run from the date of the incident, or the date on which the grievant
or should have known that he had cause to grieve. The grievant contends that he was not
many of these notices when they were supposedly issued, but he
admits that he saw all of the 1998 warnings when he reviewed his file in late
December. At that
point, he should have known that he had cause to file a grievance. Still he did not grieve the
warnings, challenge them in any way, or even notify his Union. As for the January
discipline, he did
file a grievance over the January 4th warning and the grievance was
resolved on the basis of leaving
the warning notice in his file. At the hearing, he questioned whether the January
29th discipline could
properly be considered a suspension because, even though Hampton ordered him to go home
miss over half of his shift with no pay, he didn't think Hampton used the word "suspension."
is simply a frivolous argument.
The contents of the grievant's personnel file were known to him by December of
1998, at the
latest. He failed to challenge any of the discipline other than the January
4th warning, and his
challenge to that warning did not result in any change in the file. Thus the grievant's
record for the purpose of assessing progressive discipline consists of a verbal warning, four
warnings and two suspensions, all of which were relatively recent and all of which were
just cause. There is no precise formula for judging when an employer has satisfied the need
an employe ample warning that his job is in jeopardy, and ample opportunity to change his
The arbitrator does not purport to provide any formula here, other than to observe that the
had ample warning and ample opportunity. 2/
2/ The conclusion that the grievant was
discharged for just cause makes it unnecessary to discuss his retaliation
theory of the case. I would note, however, that the primary support for this theory comes
from the coincidence of
timing between the alleged discussion with Hampton and the increased tension between the
grievant and his
Manager in May of 1998. May of 1998 was also when complaints by approximately 50% of
the other servers about
the grievant prompted two meetings to attempt to correct his behavior. It is entirely possible
that this, rather than
some spurned romantic advances, triggered the deterioration in their
On the basis of the foregoing, and the record as a whole, I have made the following
The grievant was discharged for just cause. The grievance is denied.
Dated at Racine, Wisconsin, this 24th day of February, 2000.
Daniel Nielsen, Arbitrator