Attorney Hykel Wins Reinstatement for UNITE HERE-represented Cook Fired for Sampling Food

April 25, 2023

Employers know that arbitrators are reluctant to reinstate union employees found to have committed theft, and that is why employers frequently accuse employees of "theft" or fraud" to intimidate unions from challenging the discipline. UNITE HERE Local 26 and Attorney Hykel were not easily intimidated.

Theft requires the employer establishing that the employee intended to steal or deprive the employer of their property. And many arbitrators agree that an employer is held to a higher standard when terminating employees for committing a crime. Arbitrators require "clear and convincing evidence" instead of simpler "preponderance of evidence," which usually means that they give employees the benefit of the doubt when confronted with circumstantial evidence.

The attached case involved a cook fired for leaving work early and eating a hamburger. Hykel and Local 26 established that there was a practice of supervisors allowing employees to leave work early, usually to take a break that they were denied during a shift. Plus the sign in sheets lacked any consistency.

As to the allegation that the cook stole a hamburger, Hykel and Local 26 again showed a permissive attitude toward employee consumption of food. Here, the cook's supervisor had just introduced a hamburger on the menu and encouraged his underlings to try the dish. Furthermore, employees regularly were allowed to eat food that would otherwise go to waste (such as lack of customers or an incorrectly prepared order). The Arbitrator found that Encore could not show all employee intake of food was prohibited and punished.  "In short, the Executive Chef, the Sous Chef and Chef di Parti were not adamant that no one should partake of the On Deck food at any time." The issue was not whether the Cook was correct to have eaten the food - but that it was not unreasonable under the circumstances to have believe his actions were not prohibited.

The Arbitrator concluded, "[G]iven Manager Flores’ newly assumed obligation to discipline kitchen staff and that Chef Navarrette
was so new to the On Deck kitchen that he had not had the opportunity to impart his own style and expectations on the staff, I conclude that Encore did not meet the higher level of proof required for cases involving theft of product." The employee was ordered reinstated and to be made whole for lost wages and benefits.


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