Attorney James Hykel Wins Reinstatement for Encore worker Represented by UNITE HERE Local 26

May 02, 2023

A fundamental component of union collective bargaining agreements is a requirement that all discipline be supported by "just cause." As shown by the UNITE HERE Local 26's recent arbitration victory over, just cause includes a requirement that discipline be consistent across employees. Consistency is necessary to ensure that employers do not pick favorites or unfairly target employees even when the discipline is largely the same. Furthermore, just cause requires that discipline be proportionate to the misconduct, with providing another opportunity to employees capable of reforming their behavior.

The attached case handled by Attorney James Hykel involved an employee fired for using a profane phrase (of a sexual nature) to convey that he wanted another employee to mind her own business. The offending male employee did not engaged in unwanted physical contact, proposition the employee or engage a pattern of behavior. The female employee expressed immediate displeasure. Later, the employee apologized to this co-worker of his own accord and before he knew that he faced discipline. He admitted making the offending comment to a supervisor and later sent a written apology to the general manager, which also vowed to treat co-workers with greater respect.

The Arbitrator agreed with Encore that the sexual harassment policy was violated by the employee but did not agree with the penalty. Encore claimed that termination was required, citing numerous instances where employees had been fired for sexual harassment violations. The Union disagreed that this one-size-fits all approach actually existed. The Union agreed that some situations justify termination - there were many firings unchallenged by the Union. But the Arbitrator found several instances where employees were not terminated for far more egregious misconduct (some involving physical touching) . Under the circumstances, the arbitrator determined the termination was excessive given the employee's otherwise clean disciplinary record, his contrition, his demonstrated ability to improve his behavior and progressive disciplined provided to other employees who committed more egregious misconduct.

The Arbitrator ordered the employee to be reinstated, have his disciplined reduced to a written warning and to be made whole for losses as a result of the termination.

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