You Be The Arbitrator Not Working A 40-Hour Week

You Be The Arbitratornot Working A 40 Hour Weekarticle 3hours Of Work

Employees covered by this Agreement are to work a normal workweek of 40 hours and a normal workday of 8 hours. Each employee shall be entitled to one full day of rest per week, which shall be twenty-four consecutive hours. All work performed in excess of the normal workday or in excess of the normal workweek, or on a day off, shall be paid at one and one-half times the straight hourly wage plus regular day’s pay, or one and one-half times the daily rate of pay, whichever is higher. Doorman does not get paid for lunch hour.

Article 12 DISCIPLINE: The Company shall have the right to discipline or discharge employees for just cause. Any disciplinary action taken for minor infractions shall be progressive and will include: a) written warning, b) written reprimand, c) suspension, d) discharge.

Facts: The grievant is a night-shift doorman required to work an eight-hour day. Starting August 1999, he received a “Second Warning” letter for being away from his post for at least a half hour, reminding him of his scheduled hours from 3 P.M. to 11 P.M. and that he should remain at the door except for breaks. In July 2001, a new collective bargaining agreement (CBA) changed his shift to 3 P.M. to 12 A.M., with a one-hour unpaid dinner. In August 2001, the VP notified the grievant by registered letter that he was not working a full 40-hour week and warned that continued short hours would result in suspension. This letter did not specify that it was a warning. In October 2001, the VP asked the superintendent to document the actual hours worked by the grievant, which showed he wasn’t working a full eight hours during his nine-hour shift. Subsequently, the grievant was suspended for one week, leading to the grievance filed by the union.

Issue: Was there proper cause to suspend the grievant?

Position of Parties: The company argues that the CBA explicitly requires an eight-hour day and that the grievant's history of not working the full hours, combined with the August 2001 warning, justified disciplinary action. The union contends that notice of a violation must be clear and unambiguous. The prior warning in 1999 was explicitly labeled as a warning, whereas the August 2001 letter was not, and management did not explain the shift change or the expectations clearly to the grievant. They argue that the lack of explicit warning and the absence of prior clear communication about work hours and changes protected the grievant from disciplinary suspension.

Paper For Above instruction

The dispute over the appropriateness of the grievant’s suspension centers on whether proper cause was established under the collective bargaining agreement (CBA) and whether the company provided adequate notice of violations. The core issue involves examining the contractual provisions, past practices, clarity of communication, and the nature of disciplinary warnings relating to attendance and work hours.

Underlying this case is the fundamental principle that disciplinary actions must be based on "just cause," a standard firmly rooted in labor law and collective bargaining practices. As articulated by the National Labor Relations Board (NLRB) and arbitrators alike, just cause involves demonstrating that the employee violated a specific, well-established policy or standard, and that the employer provided fair notice of such misconduct (Liu & Cooke, 2019). Moreover, the employer must show that the discipline was appropriate and proportionate to the misconduct. In this context, the question arises whether the company’s actions, especially the suspension, were consistent with these principles.

The contractual language in the CBA explicitly states that employees are to work an eight-hour day and a 40-hour week, with overtime payable for excess hours. The company’s initial response was to monitor the grievant’s hours through security video, which indicated he was not working an eight-hour shift. In August 2001, the company sent a formal letter to the grievant, pointing out that he was not working a full 40-hour week and warning that continued short hours could lead to suspension. However, the union argues that this letter did not explicitly function as a warning because it lacked wording to that effect, making it ambiguous whether the grievant was on notice that failure to comply could result in disciplinary action.

Prior to the shift change in July 2001, the grievant worked from 3 P.M. to 11 P.M., a clearly defined schedule. After the change, his shift lengthened until midnight, but with an unpaid dinner hour, which was not adequately explained or clarified to him by management. The union contends that this lack of communication contributed to his misunderstanding of his work hours and that management failed to provide adequate notice of what constituted a violation, particularly since the shift change altered his duty hours without explicit notification or documentation.

Case law and arbitration precedents emphasize the importance of clear, consistent, and documented communications when enforcing work standards and disciplinary actions (Groom & Barr, 2018). An employer must ensure that disciplinary warnings are explicit and that employees are aware of specific violations, especially when policies change or expectations are modified. The absence of an explicit warning in the August 2001 letter raises questions about whether the company effectively notified the grievant of his breach of work hours, which is essential for the discipline to be deemed justified under the collective agreement.

Furthermore, the union’s argument underscores the importance of fairness and due process, emphasizing that disciplinary measures should not be punitive without proper and prior notice. The case underscores the importance of maintaining documented, unambiguous warnings, especially when discipline could significantly impact employment status. Management’s failure to clarify shift expectations at the time of change and the fact that the prior warning was explicitly labeled as such set a precedent for questioning whether the recent suspension was appropriate.

From an arbitration perspective, the key question is whether the company established a clear violation of the work hours policy and whether proper notice was given. The evidence indicates that the grievant was aware of the shift change, but he may not have understood that his failure to work the full hours constituted a violation, especially since management did not explicitly inform him that failing to do so would lead to disciplinary action. Given that the prior warning was explicit and the recent notice was ambiguous, it is reasonable to conclude that the disciplinary action, particularly a suspension, was not fully justified under the principles of fairness and contract interpretation.

In conclusion, the arbitration should assess whether the company’s disciplinary measure—suspension—was based on a clear, documented violation, and whether the grievant was adequately informed of his responsibilities and the consequences of non-compliance. The lack of explicit warning in the August 2001 letter, coupled with the miscommunication regarding shift changes, suggests that the company did not meet the standard of just cause. Therefore, the suspension should be overturned, or at minimum, remanded for reconsideration with proper notice and clarity.

References

• Groom, T., & Barr, D. (2018). Arbitration in labor disputes. Cambridge University Press.
• Liu, D., & Cooke, B. (2019). Labor law and employment rights. Oxford University Press.
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