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C/0 URBAN ASSOCIATES, LLC - and REALTY ADVISORY BOARD ON LABOR RELATIONS, INC. - - - - - - - - - - - - - - - X
APPEARANCES: For the Union:
Ryan Borgen, Esq. Associate General Counsel Joni Allaire Miguel Carballo Harris Simons
dispute CORP.
having C/0
arisen URBAN
between
400
WEST and
59TH the
STREET Realty
APARTMENT
ASSOCIATES, Inc.
LLC
32BJ,
International
(hereinafter
referred
submitted to the
Undersigned for arbitration and Award pursuant to the pertinent provisions of the then current Collective Bargaining Agreement
FACTS
premises
approximately (C.
2010,
Exh.7).
Union filed
arbitration.
scheduled for hearing on several days and concluded on January 18, The 2012. Both parties appeared represented by their attorneys. were given examine full and opportunity to offer testimony, At the
parties
present
evidence,
cross- examine
witnesses.
OPINION
Employer Position
The apartment
Employer of a
argues by
that the
the
Grievant
was
found
in
the the
tenant
tenant's
housekeeper
while
tenant was on a
business trip.
The Grievant,
according to the
. sitting on the floor watching TV." it was found that the Grievant had no
Upon investigation,
reason to enter the apartment and no work had been requested by the tenant. In addition, there was no record of any keys being
2
given
to
the
tenant.
The
tenant,
Harris
Simons,
testified on
behalf of the Employer that he received a call from the Grievant on his cellphone. He was rather surprised that the Grievant had his cellphone number since he does not give out his cell number freely. Mr. Simons testified that the Grievant admitted to him
that he was in his apartment. The tenant was very upset that not only was the Grievant in his apartment but that the Grievant had somehow obtained his confidential cell phone number. Mr. Simons
also testified that his wife was so upset by someone coming into their apartment without their knowledge that she wanted to move. The witness further testified that the Grievant did not tell him why he was in the apartment. Two other witnesses Miguel Carballo, testified; Joni Allaire, the manager, and
she spoke to the housekeeper who told her she found the Grievant in the apartment when she arrived to clean. When she
investigated,
she concluded it was the Grievant and was told by the Grievant the tenant had to do touch up painting. advised by email that She the
and was
Grievant was not assigned any work in the apartment and he had no authority to be in the apartment. Ms. Allaire was asked on
cross-examination if she had an incident with an employee, named Jerry, who was involved in a similar incident and not
terminated. She replied that that was true except that the other employee never entered the apartment, had a clean record and was suspended. Miguel Carballo, the Superintendent, testified that he
asked the Grievant if he entered the apartment and the Grievant replied "he was not doing any job in the apartment." When asked
3
on
cross-examination
if
he
told
the
Grievant
the
apartment
number he said "Yes." The Grievant Employer was in argues the that the evidence without is clear: the Simon's apartment authorization.
This is a very serious breach of the building rules as well as the practice in the industry. An apartment is a tenant's home
and he rightfully expects that no one can enter his home without his authorization. The only penalty for a violation of this rule is termination. a In support of Awards of of its the position, Office of the the Employer Contract
submitted Arbitrator.
number
The Employer requests that the grievance be denied and the termination upheld.
Union Position
that
argument is serious
alleges
there
is insufficient proof that the Grievant was in the apartment of the tenant as charged. The housekeeper never appeared at the
hearing nor identified the Grievant as the person she saw in the apartment. Ms. Allaire testified that she did not recall if the housekeeper apartment. identified The Grievant the Grievant he as was the in person the in the on
admitted
apartment
August 26, but he was supposed to be there on that date. When he spoke to the tenant, there was a misunderstanding about the date A misunderstanding is not grounds for his reply to
4
the
Superintendent was
entirely reasonable; he did not have any work in that apartment on that day. The Union requests that the Grievant be returned to his
former position with full back pay and restoration of all his seniority and benefits.
QUESTION
Was the Grievant terminated for If not, what shall the remedy be?
just cause?
DISCUSSION
There is only one question here according to the Employer: Was the Grievant in the tenant's apartment without authorization on the day in question? I have reviewed all the Awards submitted by the Employer, who pointed out as well as the comments of the Union attorney, that in two of the Awards the grievants were
progressively disciplined.
Employer's argument that entering the apartment in a residential building industry without policy. of in In authorization In prior most this of case, a number is of a the most serious there The have breach was of the
submissions Employer
submit ted
prior warnings given to the Grievant. Most of the warnings were for time and attendance problems. I agree with the Employer that for an employee to enter a tenant's apartment without authorization is a most serious
Tenants must
be secure in the knowledge that their apartment, safe. To this end, the buildings
their home,
is of
funds to provide the residents with a safe place to live. The question then is: Did the Grievant enter the apartment of the tenant, Harris Simons, on the day in question, without
reason or authorization? The Union raises an important argument. If, as the Employer argues, entering an apartment of a tenant is in and of itself grounds for termination, the facts. This is even more important you still must prove where, as here, the
Grievant is being terminated for a single offense. Quite simply, the Employer has Grievant was failed to offer sufficient evidence that the
was seen by the tenant's housekeeper. Yet the Employer failed to either produce her or adequately explain why it didn't. Only she could identify the Grievant as the person in the apartment. the
Therefore,
it is argued,
reasonable explanation why he called the tenant on the day in question. apartment. about the It was his his confusion reply was to about the the day he was when in in the
Also,
Superintendent He had no
asked the
apartment
truthful.
work
apartment that day. The against Employer argues that from the best proof of the charges
He called The
in the apartment.
tenant testified as to the call he received from the Grievant. The Grievant wants us to believe that he called the tenant to discuss the fact that he was doing work in the tenant's
told him he was in the apartment but did not explain why.
6
Ms. on
to in had
question.
questioned
Superintendent
entered the apartment, he could simply have said no. Instead, he replies that he did not have any work in the apartment. The Grievant's testimony lacks credibility. His admission
to the tenant that he was in the apartment can only refer to the day in question not some prior date when he was authorized to be in the apartment. Entering an apartment of a resident without
authorization in the absence of an extreme emergency is one of the most serious violations of industry and building rules. find that the testimony of Mr. with the Grievant Simons, in a the the call tenant, about by in I I his the the find
conversation Grievant
initiated was
clearly
established
that
Grievant
that the Grievant was terminated for just cause and the Employer did not violate the Collective Bargaining Agreement when it
AWARD
STATE OF NEW YORK ss: COUNTY OF NEW YORK I hereby affirm pursuant to CPLR Sec. 7507 that I am the
instrument which