- - - - - - - - - - - - - - - - X In the Matter of the Arbitration between MICHAEL FISHMAN, PRESIDENT, LOCAL 32BJ, SERVICE EMPLOYEES INTERNATIONAL UNION - and

SARATOGA CONDOMINIUM C/0 J & C LAMB MGMT CORP. - and REALTY ADVISORY BOARD ON LABOR RELATIONS, INC. - - X
APPEARANCES: For the Union: OPINION AND AWARD Case # 191175/251228 138383/363504

Associate General Counsel By: Ryan Borgen, Esq.

For the Employer:

Leah Lopez Jim Hologh

For the Realty Advisory Board:

Harry Weinberg, Esq.

Employee:

Bruno Aponte, Grievant Silvia Zehn, translator 330 East 75~ Street

Premises:

A dispute having arisen between Saratoga Condominium c/o J LAMB MANAGEMENT Inc. CORP. and the Realty Advisory Board

& C

on Labor and

Relations, Local 32BJ,

(hereinafter referred to as the "Employer") Employees International Union

Service

(hereinafter the

referred to as the "Union")

concerning 330 EAST 75w STREET,

same was submitted to the Undersigned for arbitration and Award pursuant to the pertinent provisions of the then current

Collective Bargaining Agreement between the parties at a hearing scheduled for AUGUST 13, 2010, DECEMBER 17' 2010, MAY 16, 2011,

AUGUST 10, 2011, OCTOBER 17, 2011, NOVEMBER 7' 2011. In a letter dated FEBRUARY 17, 2010, which was submitted to the Off ice of the Contract Arbitrator, the Union alleged the

following complaint on behalf of Bruno Aponte

("Grievant") , and

the same was by mutual consent of the parties submitted to the Undersigned for adjudication and Award. The Union seeks to have the suspension rescinded, the member made whole for the three days' pay and that all mention of the suspension be removed from the member's file.
FACTS

The Grievant,

Bruno Aponte,

was

employed as

porter for On October No.

approximately eighteen years at 19, 2009, he was suspended for

the above premises. three days

(C.Exh.14-Case

138383).

On February 8,

2010,

he was

suspended for three days 2010 he was suspended

(C.Exh.15-Case No.191175). for two days 2010, he was

On April

19,

(C.Exh.16-Case No. terminated

251228).

Finally on December 8, 363504). The cases

(C.Exh.19-Case No.

were combined and heard over several days concluding on November 7, 2011.
2

OPINION

EMPLOYERS POSITION

The Employer submitted numerous documents in support of its case as well 19, for in as 2009, several was witnesses. three days The first was suspension given to on the

October Grievant warned second

for

and

failing

to perform his verbally issued on

duties

after having been ( C . Exh . 14 ) . The 2010, after an

writing

and was

several February

times 8,

suspension

inspection of the lobby Leah Lopez, that place the inclement weather runners not

the Account Manager, in the lobby were

found in

left

although

they were

required.

In addition

the

lobby

floor had not been moped and there was cake on the floor of the compactor room. When the Grievant was told by the Superintendent to clean the lobby floor and the compactor room, he claimed he

did even though the floor was still dirty. He cleaned around the compactor room but when he was finished there was still cake on the floor (C.Exh.15). The next suspension, 2010. his This duties suspension was which had for two days was issued on April 19, issued for again failing to be the done by another to perform employee,

specifically the mopping of

lobby floors

and cleaning the

sidewalk in front of the building on a daily basis. Finally on December 8, 2010, Aponte was terminated (C.Exh.19). for The

leaving the compactor room in complete disarray employee who relieved him, Sharlu Bosowiz,

complained that the

Grievant left a mess in the compactor room. He took a number of pictures with his cell phone camera (C.Exhs.20A to 20G) to show

management the conditions left by the Grievant. The employee testified and verified that he took the photos on the day in question because of the condition he found in the compactor room. In the termination letter, the compactor room, the in addition, referred to the problem with to recent incidents

Employer

where the Grievant in an insubordinate manner refused to sweep and mop the stairwells. He also refused to submit requests in

writing for time off for a clinic day and a personal day off. All of the accusations against the Grievant were proven by substantial documents. The Grievant may have long service but the Employer claims it was mostly poor and despite his seniority there comes a time when the behavior of Here that point was the Grievant can no longer be reached a while ago and the tolerated. Employer evidence, both by oral testimony and ln written

suspended

and

terminated

the

Grievant

for

just

cause.

The

Employer respectfully requests that all the grievances be denied in all respects.

UNION POSITION

The Union emphasis that the Grievant had very long service, in the words of the Grievant, The Union argues were that most The "eighteen years and eight months." of the accusations testified at against length the and

Grievant

false.

Grievant

claimed the accusations were false. He did agree that the duties listed were his but said that he always did his job. He also

pointed out that while the duties listed by the Employer in his exhibits were his duties, he was not expected to do all the

duties every day.

The Union has protested every suspension the

Grievant received and a number of the warning letters. The Union argues that the Grievant did his job and was being treated

unfairly and requests that the Grievant should be reimbursed for all the suspensions grieved and returned to his former position with full back pay, seniority and benefits.

DISCUSSION

There including

was Leah

lengthy Lopez, and and

testimony the

by

the

Employer's

witnesses the The

Account Bosowiz, a

Manager, fellow

Balozk, employee. to

Superintendent; Account Manager

Sharlu the

Superintendent

testified

numerous

discussions

and warnings with the

Grievant on an almost daily

basis to no avail. They changed his shift to the daytime so they could supervise his work better. When that failed, they then They

started to give written warnings and finally suspensions.

both testified that they still found the building dirty and the Grievant unresponsive to their warnings. Just prior to his

termination on December 5, 2010, a coworker complained that when he arrived at work at 3:00 pm he found the compactor room in

disarray. He took a number of photos at approximately 3:10 pm to verify what he found. These photos were a very vivid

confirmation of the coworker's testimony. The compactor room was in complete disarray. Yet the Grievant who left work at 3:00 pm denied that he denial, left the compactor room in that condition. His

despite the evidence of the photos and testimony of the The Grievant's whole defense is "false." his He but admits argues

coworker is completely incredible. is that the the accusation of the

Employer the
6

that

duties

submitted by

Employer are

that other employees were failing to perform their job. On a few occasions, he claimed he had done the work yet he refused to do the job when directed by his Superintendent. He was also accused of applying for personal time off to which he was not entitled, specifically his birthday. When he was confronted with the fact that December 24, listed in his request for a birthday holiday,

was not in fact his birthday, he blamed the agency who he hired to write the letter. The request Grievant clinic was days also in confronted with the his failure to

writing.

When

Superintendent

requested a written request as is required, saying "I will see you at Arbitration".

the Grievant refused He admitted this on

cross examination. warning letters

The Union points out that a number of the to the Grievant were protested by the

given

Union even though they were unable to bring them to arbitration. After reviewing all the warnings, of the witnesses, suspensions and testimony

I find that the Grievant was warned, suspended

and terminated for just cause. The testimony of the Grievant is completely incredible in the face of all the physical evidence. In particular, how he could claim that he left the compactor

room completely clean on December 5,

2010 at 3:00 pm when the

photos taken at 3:10 pm on the same day show the compactor room

in

complete is no

disarray. way that

Even such

if a

someone condition

wanted could

to be

set done

him in

up, ten

there

minutes. The more Grievant, eighteen are it is years true and is a long service must face be of employee, for His

than

that in

considered. clear the

denials that the he

however was

incredible

the

evidence fact that

not doing his found

job properly. occasions

Despite that

Employer

on numerous

his

work

either

not done or done so poorly, the work or he for blamed failure some

he claimed that he had either done other employee. required Not tasks only was he for

disciplined

to do his

but also

his insubordinate attitude. documents written requested request was by his

An example is his refusal to submit Superintendent. but he He admitted and that a

necessary

refused

told

the

Superintendent "I will see you at the Arbitration." The Employer did not violate the Collective Bargaining when it suspended and terminated the Grievant.

AWARD

1) Grievance No. 138383 (three day suspension) denied.

is

2) Grievance No. 191175 (three day suspension.) is denied. 3) Grievance 251228 (two day suspension.) is denied.
4)

The Grievant was terminated for just cause. The grievance is denied in all respects.

DATE: January 11, 2012 . ANNE~/'" v Contract Arbitrator

/

STATE OF NEW YORK

SS:

COUNTY OF NEW YORK I hereby affirm pursuant to CPLR Sec. 7507 that I am the

individual described in and who executed this is my Award.

instrument which

DATE: January 11, 2012