Attorney Hykel Wins Reinstatement of Fairmount Hotel Worker Represented by UNITE HERE Local 26
Labor unions fight for management to enforce their work rules consistently. Employees deserve to know what is expected of them and how they will be treated if they fail to meet those explanations. An employer cannot discipline only some employees who violate a work rule, while others to do so with impunity. Similarly, an employer cannot issue reprimands to some employees for violating certain rules while terminating others for the same misconduct. Employers cannot discriminate or even favor certain employees over others,
Attorney James Hykel relied upon this golden rule that an employer must handle treat employees the same when he persuaded a neutral arbitrator to reinstate a terminated Fairmount hotel worker represented by UNITE HERE, Local 26. The worker was fired for leaving work early two times and angrily expressing frustration with management. However, the hotel had a track record of issuing discipline less than termination for similar infractions in the past.
The Arbitrator's opening remark summarized the rule:
"I conclude that there was not just cause to discharge the grievant, Even if either left work early on the overnight shift beginning on February 1, 2019 and later
lied to about the precise time at which he had departed, the penalty of discharge is too severe. Even if Ribeiro left work early on the overnight shift beginning on February 6, 2019 without notifying anyone in supervision or his early departure, the penalty is too severe. Even if confronted outside the Hotel on Stuart Street and stated words to the effect that if he found out that had reported to management that he had left work early, he would “make his life hell,” the penalty of discharge is too severe. I arrive at this conclusion primarily on a theory of disparate treatment. Specifically, I conclude that in prior cases the Hotel has not discharged employees who leave early without permission and receive pay for time not worked. Similarly, the Hotel failed to discharge an employee who subjected a coworker to a far more pointed threat of violence than that which it contends directed at in the early morning hours of February 10, 2019."
The Arbitrator ordered the hotel to reinstate the worker and make them whole for lost wages and benefits,