BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MADISON CONCOURSE HOTEL
SEIU LOCAL NO. 1, AFL-CIO, CLC
Melli, Walker, Pease & Ruhly, S.C., by Attorney Daniel D.
Barker and Attorney Angela Black, 10 East Doty Street,
P.O. Box 1664, Madison, WI 53701-1664, on behalf of Concourse Hotel.
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Andrea F. Hoeschen, 1555 North Rivercenter Drive, Suite
202, Milwaukee, WI 53212, on behalf of SEIU Local No. 1.
According to the terms of the effective labor agreement, entered into January 1,
Madison Concourse Hotel (Hotel) and Service Employees International Union, Local
No. 1, AFL-CIO, CLC (Union), the parties requested that the Wisconsin Employment
designate a member of its staff to hear and resolve a dispute between them regarding a
suspension issued to Governor's Club bartender Jackson Halink. WERC Arbitrator Sharon
Gallagher was designated. Hearing in the matter was held on February 4, 2003, at Madison,
Wisconsin. A stenographic transcript of the proceedings was made and received by the
on February 17, 2003. The parties agreed at the hearing to submit their initial briefs 30 days
their receipt of the transcript for the Arbitrator to exchange. Ten working days after receipt
initial briefs, the parties agreed to postmark their reply briefs, if any. Initial briefs were
April 4, 2003. The Union did not submit a reply brief. The Hotel's reply brief was
received on April
21, 2003, whereupon the record was closed.
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 stipulated that the Arbitrator should determine the following issues:
Was Jackson Halink suspended for just cause? If not, what is
the appropriate remedy?
ARTICLE 7- DISCHARGE AND
7.1 Just Cause. The Employer shall
have the sole right to discharge, suspend or otherwise
discipline for just cause any employee who has completed his/her probationary period,
to the grievance procedure. Prior to any disciplinary meeting, employees will be advised of
their right to have a Union Worksite Leader present.
Discipline. Any employee, except for probationary employees, may be disciplined
for just cause. Ordinarily, such discipline would include the sequence of verbal warning,
written warning, suspension and termination. Certain actions such as gross negligence,
sabotage, gross insubordination, theft, drunkenness on duty, or physical altercations, may
require immediate progression to discipline including suspension and termination. In all
written notification shall be provided to the employee which will indicate the current step of
the disciplinary process and the reasons for the disciplinary action. General Counseling may,
but need not, also be used as a basis in the process of correcting and improving employee
7.3 Each employee has a right
to meet with his/her Union Worksite Leader when an employee
believes that he/she has a grievance. The Employer shall permit a Union Worksite Leader a
reasonable amount of time on regular duty status to process grievances and consult with
appropriate supervisors and Management officials. The Union will use its best efforts to
ensure that the Union time is not abused. The employee and Union Worksite Leader will
obtain prior approval from their supervisor for release for such time at a minimum. Such
approval only shall be allowed where that meeting cannot be held on off-duty time.
7.4 Warning Notices Cancellations.
Written record of disciplinary notices other than a suspension
or discharge shall not be used as basis for discipline after a period of one (1) year for
employees and two (2) years for part-time employees provided there have not been other
infractions of similar significance (i.e., tardiness is a different significance than
ARTICLE 9 - MANAGEMENT RIGHTS
It is understood that the Management and
the direction of the working force is vested exclusively
to the Employer except as specifically provided in the other articles of this agreement. The
Employer's rights include but are not limited to: the right to hire, demote, suspend, or
retire, layoff, promote, assign or transfer employees to any job or any work, anytime or
to increase or decrease the working force; to determine the number of employees assigned to
work or any job; to define the hours of work per day or week; to make work rules for the
of efficiency, safe practices and discipline; to establish performance standards and to review
employees under these standards; to determine the equipment to be used; to make
change; to determine the number and location of its operations; to move, close or liquidate
operations in whole or in part; to separate or reassign employees in connection with said
closing or liquidation; the right to transfer, to subcontract work provided no current
be laid off as a result of subcontracting; to establish new jobs and preliminary wage rates for
(subject to subsequent negotiation with the Union over wages for such new jobs); to
duties and production standards; to combine jobs; to eliminate classifications of work; to
overtime work; and to select employees for overtime.
Issues that arise regarding past practices that have developed with
or without the Employer's
knowledge shall be dealt with on a case by case basis through meetings between Management
the Union unless included elsewhere in the contract.
Nothing in this article shall abrogate or alter any
other article of this Agreement.
RELEVANT WORK RULES
Relevant portions of the Employee Handbook appear below. The Handbook was
March 1, 1997, and edited April, 2001.
. . .
Union Represented Employees
This is a general publication being prepared
for all employees. It is possible that at times a
contradiction may arise between an item in this handbook and an item in your collective
agreement. If such a contradiction does exist, the terms in your collective bargaining
govern without nullifying any other item in this handbook.
. . .
Termination of Employment
It is the policy of the Hotel to terminate
employment consistent with the employment-at-will
doctrine because of an employee's resignation, discharge, or retirement; the expiration of an
employment contract; or a reduction of the work force. Discharge can be for no reason or
reason not prohibited by law. In the event an employee resigns, two weeks written advance
. . .
It is the policy of the Hotel that certain
rules and regulations regarding employee conduct are
necessary for the efficient operation of the Hotel and for the benefit and safety of all
Listed below are some of the rules and
regulations of the Hotel. This list is not all-inclusive.
Types of behavior and conduct that the Hotel considers inappropriate and which could lead to
disciplinary action up to and including immediate termination of employment without prior
at the sole option of the Hotel, include, but are not limited to the following:
Insubordination or the refusal by an employee to follow management's
Hotel related matters.
b.) Disrespectful or
discourteous conduct to guests, co-workers, supervisors, or other
including the use of profanity or abusive language.
c.) Reporting to work
intoxicated or under the influence or in possession of controlled
substances or alcohol. (See Substance Abuse Policy, page 9)
d.) Violating the Hotel's
No Harassment Policy. (See No Harassment Policy, page 6)
e.) Failing to perform appropriate work or
job assignments satisfactorily and efficiently.
Unauthorized sleeping, apparent sleeping or inattention during work time.
f) The possession of firearms
or other weapons on Hotel premises or while off the premises in
performance of employee duties.
Coercion, intimidation, threats or the use of physical force against
supervisors or other persons.
misappropriation, unauthorized removal, destruction, defacement or misuse of Hotel
property or of another employee's or guest's property. This includes making long distance
telephone calls from non-pay phones without proper approval.
i.) Failing to exhibit a neat and business-like appearance
and high degree of personal
cleanliness at all times. Failure to wear prescribed uniform and name tags if applicable.
to keep uniform clean and in reasonable condition. (See Appearance Policy, page 10)
j.) Smoking in other than designated areas at designated
k ) Unauthorized
presence at guest functions and in guest areas, or on premises including guest
rooms, fitness areas or food and beverage areas when not scheduled to work.
Gambling on Hotel property.
Falsifying employment or other Hotel records.
n.) Disregarding Hotel
safety and health policies. (See Safety and Health, page 10)
soliciting or distribution of literature on Hotel property during work
p) Making or publishing false
or malicious statements concerning a guest, employee,
supervisor, ownership, the Hotel or its services.
q.) Disclosing or unauthorized
use of any Hotel information including any records, files, guest
lists, financial records, vendor/supplier lists or employee records which the Hotel deems
r.) Any other action or inaction of an employee on or
off duty which, in the sole opinion of the
CEO/General Manager is a conflict of interest or detrimental to the operation or reputation
of the Hotel or to the safety and well-being of its guests or employees.
If your performance, work habits, attitude,
conduct or demeanor becomes unsatisfactory in the
judgment of the Hotel, based on violations either of the above or any other Hotel policies,
regulations, you will be subject to disciplinary action up to and including immediate
Jackson Halink has been employed by the Madison Concourse Hotel since
1983. In August of 2002, Halink was employed five days a week (Tuesday through
Saturday) as the
bartender in the Governor's Club Lounge from 4:30 p.m. to 10:30 p.m. The
Governor's Club is a
concierge's level service which is offered by the Hotel. Guests pay more for their rooms on
floors of the Hotel, which rooms have enhanced decoration, and guests are given access to
Governor's Club Lounge (by use of their room keys) for approximately six hours every
where free alcoholic and non-alcoholic beverages are provided as well as hors d'oeuvres and
Governor's Club guests also receive extra services in the Hotel, including room service and
in the morning. Approximately 500 patrons per week use Governor's Club services at the
The Hotel has solicited customer comments through comment cards since at least
Governor's Club and other Hotel guests are encouraged to fill out prior to departure. The
receives approximately 125 comment cards per month but only perhaps 2 letters per month
guests who have stayed in the Hotel. The Hotel maintains customer letters and comment
cards in its
computer data base and analyzes information therefrom in an effort to give better service to
Since approximately February of 2000, the Hotel has employed a Customer Service
Stephanie LaBella-Luke (hereafter Luke). Luke's primary duties are to receive customer
cards, letters and complaints and try to deal with and resolve these. Luke stated that she
makes personal inquires into negative comment cards by calling customers and trying to
details listed on their comment cards to determine whether their complaints are justified.
finds that a customer complaint is justified, she is authorized to adjust customer bills, send
certificates (worth approximately $150 each) and to offer guests complimentary stays in the
There is generally only one bartender on duty each night at the Governor's Club
Lounge is a key entry facility, where only Governor's Club guests may enter and receive
complimentary drinks and food during the hours that the Lounge is open. Over the
period of his employment, Halink has received 11 "Concourse Kudos Awards" which
are based upon
positive customer letters and comment cards, which indicated that Halink's work was
during the stay of each customer. Halink also received a "Golden Key Award" for his civic
contributions to the "Meals on Wheels" program in October of 1999. Furthermore, Halink
three "Spirit of Service Awards," two in March of 2002 and one in January of 2001. 1/ In
the Hotel has received four positive independent letters from guests who stayed in the Hotel
completed their stay indicating that Halink's work was excellent. These letters were received
and 2000. (One letter was undated.) There were also many positive comment cards received
Hotel specifically naming Halink as having performed excellent work, which were written by
who stayed at the Hotel between November, 2002, and February, 2003.
1/ The "Spirit of Service Award" can be given
by Hotel employees to other Hotel employees whose work the
former perceive to be excellent.
The Hotel offered documents detailing past disciplinary actions taken against Halink
October, 1997, Halink received a written warning and in November, 1997, Halink received
written warnings both for rudeness/treatment of guests in the Governor's Club. On February
2000, Rooms Director Woodward gave Halink a written warning and a suspension for
guests. On April 25, 2000, Woodward reduced the discipline he had given Halink on
from a suspension to a verbal warning, based upon Woodward's belief that Halink had
remorse for the circumstances that led to the suspension and that Halink's behavior had been
2/ The parties are at odds whether prior
discipline may be considered herein if the prior discipline occurred
more than one year before the instant situation, pursuant to language contained in Article 7
Discipline. This issue will be dealt with in depth herein in the Discussion
On April 20, 2002, Mr. and Mrs. Metcalf and two other couples were in the
Lounge when Halink admittedly told Mrs. Metcalf to "shut-up," and later told her to "shut
up." Halink explained herein that the couples were drinking heavily and that
Mrs. Metcalf had used
bad language to him before he admonished her in the same language in order to get her to
down. Halink stated that the Metcalf party had been loud and boisterous while in the
Club and were disturbing the other approximately 50 guests. 3/
3/ At the instant hearing, Halink confirmed
that the handwritten explanation of his actions which he submitted
to the Hotel on May 2, 2002, was accurate regarding the Metcalf incident. In his May 2,
2002 statement, Halink
admitted using the words that the Metcalfs alleged he used towards them but he gave the
explanation stated herein
for his actions.
The Hotel received a comment card from the Mr. and Mrs. Metcalf which detailed
with Halink, including quotes of the language Halink used. Luke called Mr. Metcalf and
him in detail about the incident. Thereafter, on April 30, Hotel General Manager Cal
Halink a verbal warning/counseling regarding the Metcalf incident. At the counseling
admitted making the statements attributed to him but he was very apologetic. Whorrell
that Halink promised him that he would follow Hotel rules and policies in the future and
he knew that the next incident on his part could result in termination. Halink did not file a
regarding this verbal warning/counseling. The Hotel ultimately adjusted the Metcalf's bill,
them three free rooms for one night for three couples in the Governor's Club.
On June 20, at approximately 5:00 p.m., Night Hotel Manager Mike Barr received a
complaint from Hotel guest Mrs. Rosen, stating that Halink had been rude to her and her two
at the Governor's Club Lounge when Halink denied service to her sons who were under age
ineligible to drink at the Governor's Club Lounge. Barr then went to the Governor's Club
with Halink about Mrs. Rosen's complaint. At this time, there was one guest in the Lounge
television approximately 15 feet away from Barr and Halink. When Barr inquired about
complaint, Halink slammed the newspaper down that he had been reading and referred to
as "that fucking cunt." Barr noted that the guest then present in the Club looked up at the
Halink made this statement and looked toward he and Halink, but there is no record evidence
that the customer, in fact, heard Halink's comment.
Barr immediately reported this incident to Jeanne Doege, Human Resources Director,
calling her at home. On June 21, 2002, Rooms Director Woodward gave Halink a written
concerning this incident, citing the verbal warning given by Whorrell on April 30, 2002, as
corrective action. In the written warning, Woodward stated "filthy and disrespectful
guests, employees or in general will not be tolerated in any Hotel public areas." 4/ Halink
the issuance of the written warning dated June 21, 2002. In his testimony herein, Halink
using the words that were attributed to him by Barr, but stated that he had spoken in a quiet
and he believed that the guest in the room had not heard him.
4/ Woodward did not seek any information
from Halink before he issued Halink the written warning described
On August 3, 2002, Halink was the bartender at the Governor's Club Lounge. That
two ladies, Lynn Secrist and Janis Strupp, came into the bar according to Ms. Secrist's
card, they asked Halink to serve them two Bud Lights. Halink told them that the Governor's
did not have any Bud Light. At some point, the ladies told Halink that they
had some Bud Light in their room and Halink told them "Fine. Go back to your
stated on her comment card that she and Strupp were "a little shocked by Halink's
comment." In his
testimony in this case, Halink admitted making the statement attributed to him by Secrist.
Luke interviewed both Secrist and Strupp over the telephone to confirm the details of
comment cards both of them submitted after their stay. 5/ Luke requested that both Strupp
Secrist submit letters regarding the incident to the Hotel and both women did so. Secrist's
confirmed the statements she made on her comment card. On her separate comment card,
stated ". . . Jackson of the Governor's Club was the unfriendliest and unprofessional
employee I have
ever come across in a Hotel atmosphere. He ruined most of the entire evening for us. We
unable to take advantage of the beverages/appetizers and atmosphere of the Governor's
Strupp also stated that she did not feel she could provide a positive recommendation for
inquiring about the Madison Hotel.
5/ Notably, Secrist's comment card indicated
the conversational exchange described above but Strupp's did
not. However, Strupp stated on her comment card "we were snapped at and treated so
unprofessionally . . . we
didn't take advantage of beverages/appetizers!" referring to Halink in the Governor's Club
Lounge. Strupp also
stated that the staff of the Hotel was "wonderful, other than Jackson in the Governor's
On August 13, 2002, following the above investigation of the incident, Rooms
Woodward issued Halink a one-day suspension prior to his beginning work on that date. 6/
counseling form accompanying this suspension stated:
This is a critical point for Jackson. Another such incident for
[sic] disrespectful service towards
a guest will result in the final stage of disciplinary action and may include termination. 7/
As a result of its investigation of the incident, the Hotel sent Secrist and Strupp gift
(worth $150 each) to use in the Governor's Club in the future. Neither Secrist nor Strupp
their certificates as of the date of the instant hearing. On August 19, 2002, the Union filed
6/ Again, Woodward did not seek any
information from Halink before he administered the discipline on
7/ In his testimony
herein, Halink admitted that he was familiar with the Hotel's Employee Handbook and the
rules it contained.
POSITIONS OF THE PARTIES
The Hotel noted that the contract requires just cause for suspension of employees and
the Hotel specifically reserved the right to establish employee rules regarding discipline.
the Hotel noted that Halink knew of it's rule against disrespectful/discourteous conduct
guests and employees and that profanity and abusive language would not be allowed. Halink
admitted that he had made the comments to the various guests in the past which led to his
including the specific comments which led to his suspension. Here, the Hotel urged that
guests would constitute just cause for discipline and that Halink's comment to Secrist and
rude and hostile and caused them to file two negative comment cards and to write letters
Halink's service during their stay.
In addition, the Hotel argued that written guest complaints constitute appropriate
despite the Union's arguments to the contrary where, as here, Halink essentially admitted
statements attributed to him. In addition, the Union admitted in the hearing, as well as in its
that Halink was terse and impatient with Secrist and Strupp. The Hotel noted that not all
cards have resulted in discipline and that in fact on at least one occasion, the Hotel reduced
for Halink where he explained the circumstances and the Hotel's investigation indicated that
complaint was unfounded. In this case, the Hotel noted that Halink had been given the
to respond to the discipline, and he choose not to do so in the meeting which led up to his
Even if there were a lack of malicious intent on Halink's part, Secrist and Strupp
Halink's statement in the worst possible way. These guests' reasonable reaction to Halink's
statement justified the discipline meted out against him. The Hotel argued that Halink's past
guest interactions do not excuse his rude behavior on other occasions. In addition, the Hotel
that there was no evidence in the record, contrary to Halink's assertion, that anyone at the
"out to get" Halink.
Furthermore, the Hotel argued that the undersigned should consider prior discipline
out against Halink pursuant to the language of the labor agreement because Halink's prior
was similar in significance to the activity which led to his suspension in this case. Even if
discipline is not considered by the Arbitrator in this case, the Hotel argued that just cause
it to issue Halink a one-day suspension for his comment to Secrist and Strupp.
Finally, Halink's length of service does not require the Arbitrator to exert her
decrease the discipline meted out against Halink in this case. Here, Halink had been rude
in a five-month period; and the Hotel had to give away free services or face losing valued
and future business. Therefore, the Hotel urged that the grievance should be denied and
in its entirety.
The Union contended that the Hotel failed to submit credible evidence that Halink
to patrons. In this regard, the Union noted that the Hotel relied entirely on hearsay, which
be sufficient to support the discipline given. In addition, the Union asserted that Halink's
should be credited as he was the only witness who testified who was actually present during
incidents involved in this case. Because Luke's questioning of Secrist and Strupp was not of
of cross examination, and because Secrist and Strupp's written comments differed from
recollection thereof and Luke took no notes of her conversations with Secrist and Strupp
be compared to her recollection and which would have shown the type of questions she asked
the answers given by the guests, this evidence must be disregarded by the Arbitrator.
The Union noted that Strupp's account contained no specifics of the incident with
that Secrist's account did not have very much in the way of detail, making Halink's account
unrebutted by the evidence herein. Thus, the Hotel merely assumed the customers' accounts
correct and indicated wrongdoing by Halink, which the Union contended showed that the
not interested in getting at the truth underlying the incident.
The Union asserted that as a general rule, patron complaints of rudeness by Hotel
should not be the proper basis for discipline unless there are aggravating circumstances
Union pointed out that Halink probably served about 12,000 guests per year as bartender in
Governor's Club, making a few negative comment cards almost a zero percentage of the
served. The Union contended that it is unrealistic for the Hotel to expect that even its best
can remain free from subjective complaints by customers who are under the influence of
fact that the Hotel was unable to demonstrate a loss of a major contract or any kind of real
loss, any threatening activity toward a customer or sexual harassment of a customer (i.e.,
circumstances), shows the essentially minor nature of Halink's misconduct in this case.
The Union introduced many positive comment cards and awards which Halink had
and asserted that the customer complaints by Secrist and Strupp were "aberrations" from
normally exemplary conduct and service. As Secrist and Strupp's complaints were neither
nor egregious, they should not form a basis for the Hotel's potential termination of Halink.
The Union also contended that Article 7.4 of the contract does not allow use of prior
discipline against Halink (prior to April 30, 2001). The Union asserted that the Hotel's
Article 7.4 is "ridiculous." The Union also disputed the Metcalf incident on its facts, and
Arbitrator to Halink's May 2nd statement for the truth of the matter. In
addition, in regard to the
Rosen comment, the Union noted that this was a different kind of alleged misconduct, as no
complaint was ever lodged, and Halink's conduct, at most, constituted general misconduct.
As the two incidents which occurred in 2002 did not undermine Halink's good work
or show him to be a problem employee and because Halink had engaged in no dishonesty or
egregious misconduct, the incident of misconduct involved in this case should not undermine
credibility herein. Therefore, the Union argued that the grievance should be sustained and
made whole and his record expunged.
The Hotel contended that the Union's argument that Halink should not be expected to
perform perfectly in servicing guests is untenable in the highly competitive hotel field. In
the Hotel noted that Halink himself admitted on cross examination that the Hotel should be
expect 100% positive feedback regarding Hotel employees' conduct. Halink's good conduct
past does not require that he receive a "pass" on discipline herein. The Hotel noted that
admitted making the statements attributed to him by Secrist, Rosen and the Metcalfs and that
Union admitted in this case that Halink had been terse and impatient with Secrist and Strupp.
Therefore, the Union's contention that the allegations of these guests received by comment
mail and telephone should be discounted cannot prevail.
In these circumstances, the Hotel argued that it was not necessary to subpoena guests
obtain affidavits from them. Thus, all the evidence showed that Halink's comment to Secrist
Strupp was rude. Whether Secrist or Strupp complained to front desk employees would not
necessarily mean that such a complaint would have been conveyed to management based
evidence showing the Hotel's normal procedures.
The Hotel argued that Halink had ample time to respond to the complaint for which
suspended and yet chose not to do so, as his Union representatives had received the details of
and Strupp's complaint prior to the counseling session held on August 13th.
The Hotel also noted that
the Union attempted to argue that the consequences of Halink's misconduct were not severe.
However, the Hotel noted that adjusting the Metcalfs' prior bill and offering them three free
for one night, as well as giving a free visit to Secrist and Strupp, would amount to $600 in
alone for one night, not including gratuitous services, food and beverages offered at the
As the Union has proved by showing the various positive comments received by
regarding Halink, that Halink is capable of treating guests well and this demonstrates that the
was justified in issuing a disciplinary suspension to Halink to try to improve his conduct
guests. As the same work rule applies to all three incidents which occurred in 2002, and as
failed to show why the Arbitrator should not consider prior disciplinary actions dating back
for the same rule violations, the Hotel urged that the
discipline Halink received in this case was certainly justified. In any event, even if the
fails to take the 1997 -- 2001 discipline into account, a one-day suspension was warranted
the three prior disciplinary actions in a five-month period in 2002. The Hotel urged the
to deny and dismiss the grievance.
The Hotel has argued that Article 7, Section 7.4 of the labor agreement requires that
"written record" of three disciplinary notices received by Halink in 1997, 1999 and 2000
considered against Halink in reaching this award. Thus, the Hotel has argued that I must
the meaning of the language contained in Section 7.4 and apply it herein. I disagree. The
notice Halink received along with his suspension did not reference the warnings he had
1997, 1999 and 2000. Rather, that notice referenced and relied solely upon the disciplinary
taken against Halink in April and June of 2000. In addition, Rooms Manager Woodward did
assert herein or in any documentation regarding this grievance that he relied upon or
1997 2000 discipline of Halink in deciding to suspend Halink on July 13, 2002.
Therefore, I need
not and do not decide the meaning of Section 7.4 nor whether the disciplinary notices
Halink in 1997, 1999 and 2000 could be considered against Halink pursuant to Section 7.4 in
to the discipline in this case. Thus, no evidence on this point has been considered in
The Union argued that the Hotel work rules should not apply to Halink because he is
represented employee. However, in Article 9 of the labor agreement, the parties have
stated that the Hotel has the right "to make work rules." The Employee
Handbook contains a section
entitled "Employee Conduct" which contains employee work rules. The
Employees section of the Handbook expressly indicates that the work rules are only
ineffective vis-à-vis union employees when the rules contradict the
Union employee's labor agreement. There is no
evidence on this record to show any contradiction between the effective labor agreement and
work rules contained in the Handbook. Therefore, I find that the work rules contained in the
Employee Handbook are applicable to this case.
The Union has argued that customer complaints relied upon by the Hotel in deciding
suspend Halink on August 13, 2002, were neither credible nor reliable because those
constituted hearsay which was unsupported by testimony from the complaining customers.
point, I note that the record evidence showed that for several years the Hotel has solicited
upon customer comment cards and letters it has received in assessing its track record with
and assessing employee treatment of customers. These comment cards and letters are
business records which the Hotel has used to both reward and discipline employees
in the past. As such, these business records can be considered herein despite the Union's
In addition, it is significant that Halink admitted making each statement alleged by
customers (Metcalf, Secrist) and employee Barr. Halink admitted essentially the surrounding
circumstances and conduct he was alleged to have engaged in in each of those
situations. Thus, the Union's hearsay objections lose a great deal of their force. The
statements and conduct that Halink admitted to clearly violate the Employee
Conduct section of the
Employee Handbook (rule b) as Halink's comments and conduct constituted
discourteous conduct to guests . . . including the use of profanity or abusive language."
Halink's admissions herein bolster a conclusion that the written comment cards and letters of
involved customers were accurate, even if one were to assume Halink's accounts of each
were entirely true.
I also disagree with the Union's contention that absent aggravating circumstances,
comments to patrons made by Hotel employees, should not form the basis for discipline. In
regard, I note that the Union cited no cases to support this contention. It is undisputed
Halink has an impressive record of awards and positive comments from both his fellow
and from customers over a period of many years. However, this positive record cannot
the fact that Halink admitted making offensive statements about Mrs. Rosen and he admitted
offensive statements to Mrs. Metcalf and to Ms. Secrist and Ms. Strupp, as alleged.
In my view, the
Hotel need not prove aggravating circumstances -- that it lost a major contract or other
that Halink engaged in threatening actions 8/ or sexual harassment of patrons -- in order to
Halink responsible for comments he chose to make to patrons. In all the circumstances of
and given the fact that Halink had received warnings in April and June of 2002 for his
discourteous/respectful or profane comments/conduct to or about guests, I believe that the
applied progressive discipline (as required by Article 7, Section 7.2 of the labor agreement)
therefore issue the following
8/ Despite the Hotel's arguments to the
contrary, I find that the evidence did not show that Halink, in fact,
threatened the Metcalfs with a paring knife while he was cutting lemons and limes on April
Jackson Halink was suspended for just cause. The
grievance is therefore denied and dismissed
in its entirety.
Dated at Oshkosh, Wisconsin, this 2nd day of June, 2003.
Sharon A. Gallagher, Arbitrator