Local 26 Wins Just Cause Review of New Employee's Termination

An independent arbitrator agreed with UNITE HERE Local 26, represented by Attorney Patrick Bryant, that a terminated hotel employee was entitled to the union contract's requirement of just cause for discipline.

Most employees represented by a union are subject to a probationary period that lasts anywhere from 30 days to a year. During the probationary period, the employer generally is free to terminate the employee for any reason whatsoever, as long as the reason is not illegal. A union-represented employee who completes the probationary period thereafter is entitled to “just cause” protection against arbitrary, unfair, or unequal discipline. The calculation of the actual dates that the probationary period starts and ends can be a hot topic of dispute.

In this case, the union contract provides a probationary period of 60 days. The employer miscalculated the new hire’s probationary period by starting to count on the employee's first date of work, rather than on the employee's date of hire as shown on his offer letter and all other company documents. The employer terminated the employee on his 61st day of employment.

The employer contended that the employee was probationary because a) the probationary period started on the employee’s first date of actual work; and b) it decided to terminate the employee during the probationary period, even if it waited to tell him until after the probationary period concluded. These arguments were unsuccessful. The Arbitrator found that the probationary period starts on the date listed in employer records, even if that date is earlier than first date of actual work. The Arbitrator also credited testimony of a Local 26 representative concerning the similar custom of the industry under identical contract language.