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EXHIBIT E

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AMERICAN ARBITRATION ASSOCIATION
Voluntary Labor Arbitration Tribunal

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IN THE MATTER OF ARBITRATION

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between

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UNITE HERE, Local 100,
Union
and

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Employer

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FEDERATION OF COUNTRY CLUBS
WESTCHESTER HILLS GOLF CLUB,

Re: Termination of Timothy Cremin
Case No, 01-14-0000-5354
Before: Prof. Robert T. Simmelkjaer, Esq.
Arbitrator
APPEARANCES
FOR THE UNION
Jane Lauer Barker, Esq., Pitta & Giblin, LLP
FOR THE EMPLOYER
Peter M. Panken, Esq., Epstein Becker & Green, PC

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OPINION
AND
AWARD

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BACKGROUND
Pursuant to the procedure for Arbitration contained in the collective
bargaining agreement (“CBA”) between UNITE HERE, Local 100 (hereinafter the
“Union”) and the Federation of Country Clubs and its affiliate Westchester Golf
Club (hereinafter the “Employer” or the “Club”), effective February 1 2011 (Jt. Ex.
#1), a hearing was held on December 10, 2014 at the offices of the Employer.
The purpose of the hearing was to arbitrate the disciplinary grievance of Timdhy
Cremin, a bartender at the Club.
The Arbitrator derives his jurisdiction from ARTICLE 28, GRIEVANCE
AND ARBITRATION, Section 28,8,
At the hearing, the parties were given ample opportunity to present their
respective positions, including testimonial and documentary evidence. The
record consists of three (3) Joint Exhibits, five (5) Employer Exhibits and one (1)
Union Exhibit, with Employer Exhibit No. 2 including nineteen (19) subexhibits,
The evidence so submitted as well as the arguments of the parties has been
considered by the Arbitrator in the preparation of his award and accompanying
opinion.
ISSUES: Did the Employer have just cause to terminate the Grievant by
implementing the terms of his Last Chance Agreement (LCA’)?
If not, did the Employer have just cause to terminate the
Grievant, irrespective of his LCA?
If not, what shall be the remedy?

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Section 1.1 The Federation does hereby recognize the Union as the
sole Collective Bargaining Agent on behalf of the employees
employed by the Clubs in the classifications listed in Schedule A.
Article 6

Discipline and Discrimination

Section 6.1 No regular employee who has completed his/her
probationary period shall be discharged, laid off, suspended,
dispossessed or evicted without just cause.
Section 6.2 The Club shall notify the Union in writing immediately
upon such discharge, layoff, suspension, eviction or any other
manner of termination of employment by action of the Club, setting
forth the reason therefore.
Article 28

Grievance and Arbitration

Section 28.1
(3) a grievance must be filed by the employee,
Shop Steward or the Union, within ten working days from the date it
arises. Unless such grievance is filed within such period, it shall be
considered waived.
..

Section 28.2 Any employee may make a request, or inquiry, or a
complaint to the Club in the presence of the Shop Steward. Any
disposition of such request, inquiry or complaint which involves the
terms or application of this Agreement shall be made only after
discussion with the Business Representative of the Union or, in his
absence, the Shop Steward, and must be consistent with the terms
of this Agreement.
Section 28.3 Grievances under the terms and conditions of the
contract shall be initiated by filing a statement thereof. The
grievance shall be discussed initially between the Club, the Shop
Steward, and the employee involved in an attempt to settle same.
Section 28,4 Any grievance appealed shall be submitted to the
Club manager and the Union representave and shall be discussed
initially in an attempt of settlement at a mutually convenient time
between the Club’s representative and the employee involved,
accompanied by his Union representative and/or designated Shop
Steward.

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Section 285 If the Union representative and Club manager are
unable to resolve the problem, within five (5) days after their
meeting in Section 284, a designated Union representative shall
meet with the designated representative of the Federation.
Section 2810 The arbitrator shall have not power to add, subtract
from or modify any of the terms of this Agreement.
STATEMENT OF FACTS / HISTORY OF PROCEEDINGS
The Club is a member owned golf and country club which is a member of
the Federation of Country Clubs (‘Federation”) and is subject to the CBA.
The Grievant, Timothy “Ted’ Cremin (“Cremin”), has been employed as a
bartender at the Club since or about the year 2000. He has been a Union
member for close to 35 years and is an elected member of the 18 member
Executive Board of Local 100. He was also the shop steward at the Club when
the grievance arose. Cremin has been involved in contract administration and
negotiations between the Club and the Union and is an official signatory to the
CBA.
The Grievant has been subject to two terminations of his employment.
The first occurred on December 23, 2009 when Mr. Mark Sheehan, Club General
Manager, notified Cremin by telephone that he was discharged for cause,
effective December 22, 2009.
On October 12, 2010, Arbitrator Susan T. Mackenzie reinstated the
Grievant without back pay/constituting a ten month disciplinary suspension,
stating:
There was just cause to discipline grievant, Timothy Cremin, but
discharge is an excessive penalty under the totality of
circumstances.

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The Employer is directed to reduce the discharge of Mr. Cremin to a
disciplinary suspension without pay, and to reinstate him forthwith to
his former position, In addition, Mr. Cremin is to be placed on a
Final Warning that any future incident of insubordination or use of
inappropriate language directed at supervision, fellow employees,
Club members or guests can establish grounds for summary
discharge. (C. Ex. #2).
Thereafter, by letter dated November 16, 2011, the Employees attorney in
the instant case, Peter M. Panken, wrote to UNITE HERE Local 100 President,
William Granfield, advising the Union that “the Club has suspended Mr. Cremin
pending a decision on whether to terminate his employment.” Attached to the
letter are nineteen (19) exhibits, including seventeen (17) Disciplinary Report
Forms, a Meeting Report Form and a Union Grievance Form, dated 1/20/11, (C.
Ex. #3).
Based on the November 16, 2011 letter and attachments, the Grievant
subsequently signed a Last Chance Agreement dated December 28, Z1 1, which
states:
Mr. Cremin (“Grievant”) was on disciplinary suspension pending a
decision whether to terminate his employment which the Union
grieved on his behalf, Grievant and UNITED HERE Local 100
(“Union”) have agreed to enter into this Last Chance Agreement in
settlement of the grievance.
1. Grievant is suspended without pay or benefits until April 1, 2012,
based upon the matters raised in a letter dated November 16, 2011
to the Union and the attachments thereto (attached as an exhibit to
this Last Chance Agreement). Grievant waives and releases any
claims with respect to the disciplinary action taken by the
Westchester Hills Golf Club (“Club”) with respect to the matters
referred to in the November 16, 2011 letter and this disciplinary
suspension.
2. Grievant has agreed to this last chance final warning and agrees
that if he engages in any infraction (including, without limitation, any
item referred to in the November 16, 2011 letter to the Union, which

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is attached as an exhibit to this Last Agreement) following his
reinstatement, the Club has the right to terminate his employment
and the only issue which can be submitted to arbitration is whether
or not the Grievant had in fact committed the infraction.

3. Grievant acknowledges that he was insubordinate to the Club
Manager and specifically agrees that he will not be insubordinate to
the next Club Manager or any supervisor following his reinstatement
nor will he do anything to prevent the Club from raising issues with
the Union Business Agent or any other Union official.
4. Grievant specifically agrees that he will not discuss any perceived
problems in his job or his relationship with the Club with anyone
except his manager or his supervisor, the Club President, the Chair
of the Club House Committee or his Union...
The Club held a bereavement luncheon on August 8, 2013 for Mark
Martino, a Club Member, following the funeral mass of his mother. Cremin was
the bartender along with a parttime bartender (‘Bernie), who was also working
the event. The event was attended by approximately 200 guests and the bar was
busy. Cremin worked at the service end of the bar, providing drinks to the
servers who were waiting on guests at tables, as well as worked half of the bar
serving guests who ordered drinks at the bar. The restaurant Manager, Helio,
was also present during the event,
Following the bereavement luncheon, Martino sent an email to the Club
Board on or about August 13, 2013, complaining about the behavior of the
Grievant. According to Martino, Cremin, hter alia, “was inhospitable, rude and
insulting.” (C. Ex. #4).
The Club General Manager, Jack Hrad, after receiving the Martino email.
called Cremin at home on August 15, 2013 and suspended him from his job.

Subsequently, the Grievant was terminated by letter dated December 7, 2014

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sent to Jean-Homer Lauture, Local 100 OrganIzer... (Jt. Ex. #3). The termination
letter does not state the reason for the Grievants termination, but states: ‘the Golf
Club has decided that Mr. Cremin’s conduct warrants termination, especially in
view of the ruling in his prior arbitration and the violation of his Last Chance
Agreement’
A Grievance Form dated December 10, 2013 was filed by the Union on
behalf of the Grievant (Jt Ex. #2).
CONTEN11ONS OF ThE PAR11ES
Emoloyer Position
The Employer, which has the burden of proof In a disciplinary arbitration,
maintains that the Grievants termination should be upheld based on his Last
Chance Agreement dated December 28,2011, ‘setting the grievance with his
second final waming.’ Given the condition in his LCA that ‘If he engages in any
infraction Including without limitation any item referred to in the November 16,
2011 letter to the Union following his reinstatement.., the Employer argues that
Cremin’s inappropriate conduct at he bereavement luncheon on August 8, 2013
constitutes a violation of his LCA and provides sufficient grounds for his
termination.
With respect to the Grievants credibility, the Employer refers to he
findings of Arbitrator Mackenzie during the Grievants prior hearing as follows:
‘On cross examination Grievant testified that he ‘never’ raised his
voice or swore at Mr. Sheehan [the then manager who Grievant
called a thief in this arbitration hearing] ‘as long as I have been
woridng with him’ and he denied calling Mr. Sheehan a ‘fucldng
prick.’ Grievant acknowiedged that the botte of wine he had
opened was behind the bar with wine In it, but denied interfering
with Mr. Sheehan’s access to the wine because Mr. Sheehan had

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the ‘option’ of going to the wine closet, Grievant also claimed that
while he did have a few drinks, he was not drunk at the party.
Grievant’s denials of directing profanities at Mr. Sheehan or of
physically or verbally attempting to stop him from access to the
opened wine on the bar shelf are not credited in light of own
equivocation in testimony as well as other record proof.”
According to the Employer, “[w]hat is credible is the gruff demeanor and
combative responses which Grievant displayed at the hearing, all of which are
consistent with his prior misbehavior as outlined in Arbitrator Mackenzie ruling
and Mark Martino’s complaint immediately after the luncheon. In addition,
Grievant’s attitude towards his prior Manager as well as his defiant attitude with
respect to the offer of reinstatement if he agreed to a second last chance
opportunity are all consistent with Grievants misconduct at the post funeral mass
luncheon.”
Testimony
Mr. Mark Martino (“Martino”), Club Member, testified that on August 8,
2013, a bereavement luncheon was held at the Club following the funeral mass of
his mother. Following the luncheon, he sent an email to the Club Members
describing a “series of situations which had occurred” wherein “Teddy was rude
and disrespectful in the way he addressed his wife, father, son, brother, and
friends present.” (C. Ex. #4).
Martino testified that his wife told him that when she went to get drinks, the
Grievant asked her “How come she never smiled.” Martino claimed that his
father told him that when he went to the bar and ordered three lemon drop
martinis, Ted told him that he could not make lemon drop martinis but the back

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bar made the martinis. Martino recalled that his son, “an Army Special Forces
soldier surrounded by guests, asked for a glass of wine only to return visibly
upset” due to Cremin’s “totally disrespectful and insulting treatment” He wrote
that Ted had responded “testily” to the request. Martino further claimed in his
email and testimony that a friend had told him that he was trying to get Cremin’s
attention to order a drink for another friend when Ted told him to “just worry about
himself”
Martino also claimed in his email that the Grievant “was berating Pearl for
some unknown infraction while a packed bar looked on” Martino testified that he
heard the Grievant raise his voice when Pearl, the waitress, came for drinks, As
Martino put it, “I couldn’t understand Ted yelling at Pearl. Some of the people at
the bar were commenting to each other, “What was that all about?”
In Martino’s recollection, the complaints of the guests focused on the “poor
service and waiting a long time to get drinks” He reiterated that his father and
son “were spoken to in a disrespectful manner”
On cross-examination, Martino acknowledged that the email is the only
record of his complaint. He did not follow-up despite the 20-40 complaints he
received,
Martino did not witness any of the interactions with the Grievantthat he
reported in his email, Martino couldn’t recall the amount of time he spent at the
bar. He was the “primary host, circulating among the guests”
He acknowledged that approximately 150 to 200 people attended the
event, which lasted until 5 pm. There was an open bar during the entire period

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of the event, although guests could be served either at the tables or the bar. The
Grievant was the only bartender for the most of the event with approximately 20
people at the bar at all times, Martino wrote in his email that “[t]he crowd was too
big.

.,

[and] Ted moved too slow.”
Martino acknowledged that he was neither present when his son

requested a glass of wine nor when his father ordered the lemon drop martinis.
Martino acknowledged that the crowd size may have contributed to delays
in the service. He denied stating that “It’s time for Ted to retire” or being asked to
give a written statement regarding his complaints. He did write in his email: Ted
“has to go.”
On redirect examination, Martino explained a sentence in his email,
namely, “I can’t tell you many guests asked me ‘What’s wrong with the
bartender?,” indicated that several guests had complained to him.
Mr. Stephen Till, General Manager, testified that the handbook entitled
“Our Mission” was used to define the behavioral expectations for all Club
employees. Although he was not present when Cremin was hired, when the
management company for whom he has worked as General Manager took over
management of the Club in 2012, the handbook was distributed to all new hires.
(C. Ex. #5). He did not send a copy to the Union.
Union Position
The Union, on the other hand, contends that “the socalled Last Chance
Agreement produced by the employer at the arbitration but unsigned by the Union
and never discussed with the Union by the Club is void, invalid and

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unenforceable,” It further contends that the terms of the LCA “do not provide a
permissible basis or just cause to terminate Cremin.”
The Union further contends that the Club provided “no non-hearsay
testimony establishing any misconduct or any facts that would justify the
termination of a long-term employee.’ Absent competence evidence, or a record
of progressive discipline, notwithstanding the Mackenzie Award and Mr. Panken’s
November 16. 2011 letter, and given the Grievanfs credible rebuttal of the
hearsay testimony, the Union argues that Cremin “must be reinstated with full
back pay and benefits.”
With respect to the LCA, the Union argues that as sole and exclusive
collective bargaining representative with the exclusive authority under Article 28
to settle and dispose of grievances and complaints, the Grievant was neither
authorized to represent himself nor was the Employer permitted to deal directly
with him in the adjustment of grievances. In this regard, the Union cites case law
establishing, jirjI, “[a]n employer who chooses to meet with an employee to
adjust a grievance must give the Union the opportunity to attend that meeting.”
Top Mfq. Co., 249 NLRB 424 (1980). Despite the fact that Cremin is a shop
steward, the Employer was still bound to its obligations under the CBA to respect
his rights of Union representation. The Union argues as follows:
“In this case, the Club never informed the Union of any meeting with
Mr. Cremin regarding the Club’s intention to terminate him in late
2011 and made no effort to include the Union in the discussions of
the proposed discipline. The letter from Mr. Panken to the
President of the Union is inadequate to support the enforceability of
a last chance agreement that followed that letter by more than one
month and as to which there is no evidence the Union had any
knowledge or notice. Mr. Cremin signed the last chance agreement
because General Manager Sheehan told him he would be fired if he

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did not do so. The Union however never signed the agreement and
never even received a copy of it from the employer (despite the fact
that Mr. Panken had spent considerable time in his November 16,
2011 letter advising the Union President of the various complaints
the Club had with Mr. Cremin). Furthermore and most Important Is
the fact that the agreement provisions are utterly confrary to the
collective bargaining agreement which gives to all employees the
right to be free from discipline except for just cause. Mr. Cremin
was in no position to voluntarily and intentionally relinquish that right
and the Union simply did not agree to do so. Therefore, based
upon the parties’ collective bargaining agreement and federal law,
the last chance agreement Is void, Invaild and unenforceable and
cannot provide a justification for Mr. Cremin’s termination.’
In addition, the Union argues that the Employer did not have just cause to
terminate Cremin under Article 6. The Employe?s reliance on hearsay evidence,
specifically the testimony of Martino

its sole witness

is deemed insufficient to

terminate a long-term employee. Martino did not have first-hand knowledge of
the complaints he reported In his email complaints that were later rebutted by

Cremin’s credible testimony.
Moreover, the Employer did not provide the Grievant with his fundamental
due process rights as contained in the CBA. The Employer did not conduct’a
neutral thorough investigation by speaking to eyewitnesset’ There is an
inadequate record of progressive discipline set forth in the November 16, 2011
letter in that with the exception of possibly three incidents (Exhs. 5, 10 and 11),
there is no evidence that the Grievant received copies of these notices. ‘Ddiibit 3
indicates that he refused to sign the form, but there is no evidence that he
received a copy of that notice.’ The Union further argues:
‘Moreover, the disciplinary notices refer matters that have no
connection or relationship to the acts upon which the Club has
based his termination and they refer to alleged events that took
place two to three years prior to the termination of Mr. CreNn in
December of 2013—far too long ago to be relied upon as

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progressive discipline for this termination. Matters such as alleged
slamming glasses into the dishwasher which may cause breakage
(Exh. 3) or not cleaning the bar adequately (Exh. 6) have no
connection to alleged rude and disrespectful communications with
Club members and guests. Progressive discipline requires such
nexus in order to ensure that the employee involved is aware that
specific conduct if continued will result in additional discline, not
simply that anything and everything might cause the Club to
terminate an employee. Finally, the incident involved in the Opinion
and Award of Arbitrator MacKenzie also cannot support the
termination of Mr. Cremin in this case. The incident in”olved in that
hearing was an interaction between Mr. Cremin and the thenGeneral Manager Sheehan. It is clear that the incident arose, in
part, out of the fact that Mr. Sheehan and Mr. Cremin were long
time acquaintances and social friends. Mr. Sheehan has left the
employ of the Club and the alleged events underlying the
termination in this case do not involve similar conduct by Mr.
Cremin. Thus, that award cannot provide the progressive discipline
underpinning required to sustain a termination of Mr. Cremin,”
Testimony
The Grievant, Timothy B. Cremin (“Cremin”), testified that he has been a
member of Local 100 for 35 years, and a member of its 18 Member Execulve
Board. In his capacity as shop steward, he is responsible for contract
administration.
On August 8, 2013— the last day of his employment— the General
Manager, Jack Hrad, called him in and told him that he had received a written
complaint. Hrad then gave him five reasons for his termination, which Cremin
could not recall. During a subsequent meeting with Jim Rice, Union Vice
President in attendance, he learned that the complaint pertained to the
bereavement luncheon, which was held between 11:30 am. and 5:00 p.m. on
August 8, 2013.

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During the event, Cremin and a part-time bartender “Bernie” served guests
at an open bar. He never had a conversation with Martino, but did witi his wife.
“She says to me, ‘You never are smiling.’ i’m accused of not smiling
not disrespectful. Thas her act

joking, but

the not smiling comment. At the end of the

night, Ms. Martino gave me a big hug and said, ‘Thank you”
Cremin did not recalled Martino’s father ordering three lemon drop
martinis. “He was sitting at a table. He was ignored by the other guests. He
asked for a vodka, I expressed my condolences. I gave him a second vodka.
That was it. He never ordered lemon drop martinis.” Cremin testified that “Bernie
had asked him how to make this drink for three ladies. I told him we had all the
ingredients at the bar.
Regarding the friend of Martino who asked for a beer, the Grievant testified
that “the guy was hemming about what to have and I served him a beer.”
“Pearl, the waitress, speaks very low. I told her to speak up. She asked
for three Rieslings. She’s an old lady. I told her the bar does not have Rieslings.”
“The son asked for wine. He asked for Santa Margherita. I told him we
don’t serve that wine by the glass. I gave him a menu showing that the wine was
sold by the bottle. He said ‘never mind’

no big deal.”

Hello did not tell him about complaints. Cremin testified that he signed the
LCA on 12/28/11 because General Manager Sheehan told him he would be fired
if he didn’t do so. “I knew Sheehan was going. I had a few weeks vacation as

part of my non-work time that we covered. I stop working in August 2013. 1 have
not worked since. I collected unemployment insurance for six months.

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On crossexamination, Cremin testified that his efforts to seek work were
of no avail because “A lot of places went out of business, I don’t do Saturday
night parties. There is nothing out there. I went to the Union. They had nothing
for me.” He did not apply for employment opportunities after August 2013. “I was
waiting for my arbitration hearing.”
Cremin denied having any authority to settle grievances. He would
discuss grievances within the Club and if not resolved, would call Jean Lature,
Local 100 Organizer.
Regarding the August 2013 bereavement luncheon, Cremin denied raising
his voice or telling other employees that they were wrong. He could not recall
how long the guests were waiting for drinks but noted that the bartende who
was assisting him, couldn’t make certain drinks. As he put it, “They wanted their
drinks yesterday. We were overwhelmed.”
The Grievant admitting telling Helio that the guests “weren’t acting like it
was a bereavement. It’s my place to judge people to see if they’re drunk and
might get a DWI.”
Cremin testified that he did not read the LCA or speak to a Union official
about it. “I went on vacation

two weeks before Christmas and three weeks

after. Sheehan said, ‘If you don’t sign this you’re fired.” According to Cremin, “I
never had a problem in the Club until Sheehan arrived. The Board didn’t fire me,
Sheehan fired me. He said, “Your services are no longer required.”
Referring to the Disciplinary Report Forms attached to the November 16,
2011 letter, Cremin testified that he never signed the letter or saw the forms.

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With respect to the 11/14/10 infraction wherein Cremin purportly told a
member that he was owed a tip, the Grievant testified that he did not receive the
notice, (C. Ex, #3/ Ex, No, 5). He denied the allegation contained in the 6/2/11
Disciplinary Report that he took food out of the refrigerator. (C. Ex. #3/Ex. No,
1 1). “I never saw the write up” Similarly denied was an allegation that on
5/20/14, he was sitting on the patio speaking to a guest instead of making
“mulligans for twilight golf.” (C. Ex. #3/Ex. No. 10).
Finally, on redirect examination, a complimentary letter from a members
daughter was received into evidence. (U. Ex. #1).

DISCUSSION
Considering the evidence in its entirety, the Arbitrator is not persuaded that
the Employer has met its burden of proof by a preponderance of the credible
evidence. The Arbitrator not only finds that the Last Chance Agreement that the
Grievant, Timothy Cremin, signed on December 28, 2011 was invalid and
unenforceable under the parties’ CRA but the Employer also failed to establish
that it had just cause to terminate the Grievant’s employment on other grounds
pursuant to Article 6.

A.
It is undisputed that the Grievant signed the LCA on 12/28/11 without the
knowledge or participation of Local 100 of UNITE HERE, the sole and exclusive
collective bargaining representative of Grievant and the only entity authorized
under Article 28 of the CBA to settle and dispose of grievances and complaints.
Although the LCA states that “Grievant and UNITED (sic) HERE Local 100

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(‘Union’) have agreed to enter into this Last Chance Agreement in settlement of
the grievance” there is no evidence that the Union had any role in the process
which resulted in the Grievant signing the document ostensibly under duress.
The LCA is neither signed by the Union nor did the Unicri receive a copy.
Moreover, Article 28 provides that any disposition of a complaint “which involves
the terms or application of this Agreement shall be made only after discussion
with the Business Representative of the Union and must be consistent with tie
terms of this Agreement.”
The Employer has relied upon the Grievant’s role as shop steward, his
membership on the 18 member Executive Board of Local 100 and role as a Union
official in negotiating and administering contracts with the Club as sufficientfor
him to negotiate the terms of the LCA and “waive and release any claims with
respect to the disciplinary action taken by the Club with respect to the matters
referred to in the November 16. 2011 letter and this disciplinary suspension.”
However, in the Arbitrator’s opinion, no provision of the CBA authorizes
the Grievant in any of his capacities to settle his own grievance or enter into an
LCA without the representation of the Union. Article 28 sets forth a multi-step
“definite and complete guides and procedures for the processing and settlement
of grievances as defined herein,” stating that at Step One in Section 28.2 that
“Any disposition of such request, inquiry or complaint which involves the terms or
application of this Agreement shall be made only after discussion with the
Business Representative of the Union or. in his absence, the Shop Steward and
must be consistent with the terms of this Agreement.” Section 28.4 provides that

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‘Any grievance appealed shall be submitted to the Club manager and he Union
representative and shall be discussed initially in an attempt of settlement at a
mutually convenient time between the Club’s representative and the employee
involved, accompanied by his Union representative and/or designated Shop
Steward” Section 28.5 provides that “If the Union representative and Club
manager are unable to resolve the problem. within five (5) days after their
meeting in Section 28.4, a designated Union representative shall meet with a
designated representative of the Federation.”
Given the foregoing steps, requiring representation of the Grievantat each
step by a Union official, there is no contractual basis upon which the Employer
could have met with the Grievant alone and entered into an [CA with him absent
Union representation. Although a shop steward may represent a grievant at Step
One and participate in a discussion with the Club. it can be clearly inferred that
when the shop steward is the Grievant. as here, he is entitled to representation
by another Union official, namely the Business Agent, who would continue to
represent him if the grievance is appealed to the next step(s). Were the
Employer’s interpretation of the CBA to prevail, the Grievant here would have
fewer due process rights under the GrievanceArbitration procedure that the
employees he represents as shop steward

an outcome the parties undoubtedly

did not intend or contemplate.
It is well established that processing and settling grievances is the
exclusive province of the Union and no individual member, irrespective of their
Union title, can preempt that function even on their own behalf. While the Union

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could enter into an LCA and voluntarily and expressly exclude access to the
grievance-arbitration procedures as a term and condition of the employees
reinstatement, there is no evidence the Union did so in this case.
Steelworkers Local 1165— Luken Steel Co., 969 F2d 1468 (3d Cir.
1992)(”Adhering to the strong presumption of arbitrability, the court concluded
that in the absence of an express exclusion, a last-chance agreement is
arbitrable when the underlying dispute is arbitrable, unless the employer
produces ‘strong and forceful’ evidence to exclude from arbitration the underlying

question whether the employee in fact violated the last chance agreenent.”).
The Union has cited persuasive case law to the effect that an employer
cannot engage in settlement discussions with the Union member without the
presence of a Union official or meet directly with an employee and have the
employee sign settlement and release form such as that contained in Paragraph
No. 1 of the LCA.
Apropos of the instant case is the NLRB’s decision in Van Can Co. &
United Steelworkers of Am. Local 5632, AFL-CIO, 304 NLRB 1085, 1087 (1991)
where the employer offered reinstatement to an employee provided he signed a
last-chance acknowledgement without any Union participation. Although the
shop steward had been informed of the agreement and was present at the
meeting for signature, the prior direct dealing with the member nullified the LCA.
Unlike the cases cited by the Employer such as Horvath v. Banco
cialfgrt.gs, S.A., 461 Fed, Appx. 61,63 (2d Cir. Feb. 16, 2012) where
the court found that the plaintiffs failure to read a document was “gross

Case 1:15-cv-01203-LTS Document 1-5 Filed 02/19/15 Page 21 of 28

negligence’ the reader in the instant case was a Union member entitled to Union
representation and Union review of any documents he signed, including the LCA.
The LCA signed by Crernin is further negated by evidence that he was
coerced into signing the document by former General Manager Sheehan. Cremin
testified credibly that Sheehan told him that unless he signed he would be fired.
Moreover, Cremin acknowledged that he had no authority to settle grievances
and would routinely refer these matters to Organizer Lauture.
Insofar as the Employer’s assertion that the Union waived its right to
challenge the LCA under Section 28.1(3) is concerned, the record evidence
indicates that the Union had neither knowledge of the LCA nor received a copy
when it was entered into with Cremin a month after the November ii 2011 letter
was sent to Union President Granfield. including seventeen Disciplinary Forms
attached to the letter upon which the [CA was based. With the exception of
possibly three incidents (C. Ex. #3/Exhibits 5. 10 and ii). the Grievant testified
credibly that he did not receive copies of these disciplinary notices used by the
Employer to justify his termination.
Clearly, the negotiation of an [CA directly with a Union member, without
the notification or involvement of the Union, undermines the terms and conditions
of the CBA, particularly its Grievance-Arbitration provisions. Both the parties
CBA and federal labor law render the [CA void and unenforceable.
B. Just Cause
In applying the just cause standard. the Arbitrator is generally required to
determine at least five factors (1) the Employer conducted a fair and impartial

Case 1:15-cv-01203-LTS Document 1-5 Filed 02/19/15 Page 22 of 28

investigation prior to issuing the discipline, including an opportunity for the
Grievant to give his side of the story; (2) the Employer has proven by a
preponderance of the credible evidence misconduct or dereliction of the duty
upon which the discipline was grounded; (3) the Employee knew or should have
known of the existence of a pertinent rule that was reasonably related to the
business of the Employer; (4) the Employee knew or should have known the
possible disciplinary consequences of the violation of the rule; (5) that the penalty
administered was proportional to the offense and not for any arbitrary or
capricious reason or indicative of disparate treatment.
Additionally, implicit in the concept of just cause in the parties’ CBA is that
the employee be given a fair opportunity to correct his or her conduct or
performance and that the penalties for noncompliance be administered
incrementally or progressively before the ultimate penalty of termination is
imposed. The exception to the principle of progressive discipline is misconduct
that is sufficiently egregious, or behavior such that the Grievants continued
presence on the job constitutes an unacceptable risk or danger to persons or
property.
Contrary to the principles of just cause delineated above, the Employer
relied on a complaint from a Club member that constituted hearsay in its entirety,
did not conduct an investigation of the allegations made in the letter of complaint,
and did not give the Grievant an opportunity to provide his side of the story before
imposing discipline. Moreover, there is an inadequate record of progressive or
corrective discipline in that the Club did not bring most of the infractions upon

Case 1:15-cv-01203-LTS Document 1-5 Filed 02/19/15 Page 23 of 28
22

which it relied to the Grievants attention, and there is no nexus between the
unproven infractions described in the disciplinary notices occurring two-three
years earlier circa 2010-2011 and used as the grounds for the Grievants
termination in December 2013.
First, the testimony of Employer witness, Mr. Martino, consisted wholly of
hearsay. He had no first-hand or personal knowledge of the complaints he
reported and that were purportedly made by guests at his mothe?s bereavement
luncheon. None of the complainants cited in Martincls email testified at the
hearing. Martino recounted complaints that Cremin was disrespectful to his
father when he refused to make three lemon drop martinis, dismissive of his son
when he ordered a glass of wine, asked his wife “why she never smiled,” and told
a Mend trying to get a drink for another guest to “worry about himself.”
Not only were none of these complaints validated by the ClulSs
investigation, Cremin credibly denied each allegation and provided a plausible
explanation. He testified that Martino’s father didn’t order the lemon drop martinis
but rather three ladles ordered them from Bernie, the part-time bartender. Cremin
told Bemle, who didn’t know how to make the drinks, that the ingredents were
available at the bar. Cremin testified credibly that Martinds son had ordered a
glass of Santa-Margherita wine and he had advised him that the Club didn’t sell
this wine by the glass. Once he gave Martinds son a menu showing him that the
wIne was sold by the bottle, he changed his mind.

Case 1:15-cv-01203-LTS Document 1-5 Filed 02/19/15 Page 24 of 28

Cremin testified credibly that he had a joking relationship with Martino’s
wife where she jokes with him about not smiling a lot. According to Cremin, at
the end of the event, she gave him a “big hug”
As the Union correctly notes, Martino’s version supports the Grievanfs
version of the event because Martino acknowledged that “his wife is always
smiling, whereas Cremin admitted that he has a reputation for not smiling”
Cremin denied yelling at Pearl, the waitress, but rather testified that since
Pearl “speaks very low” and the bar was crowded with guests seeking drinks, he
may have raised his voice to overcome the crowd noise when she asked for three
Rieslings. The Arbitrator deems noteworthy the fact that Pearl neither filed a
complaint nor testified at the hearing.
The Employer did not give Cremin or the Union notice of his suspension
on August 13, 2013. The Union received a written notice of the Grievanfs
termination dated December 7, 2013 without the Employer stating the grounds
upon which his termination was based,
The Employer cannot reasonably rely on the November 16, 2011 letter it
sent to the Union President as the basis for his termination because the Grievant
did not receive a copy of several of the Disciplinary Reports attached to the letter.
With the exception of three incidents Cremin challenged at the hearing, there is
no evidence that the Union or the Grievant were apprised of his alleged
misconduct. Unless the Grievant was informed of the infractions, they cannot be
deemed conducive to progressive or corrective discipline since he could not

correct conduct about which he had no knowledge.

Case 1:15-cv-01203-LTS Document 1-5 Filed 02/19/15 Page 25 of 28
24

In addition, the infractions cited in Disciplinary Report Forms attached to
the November 16, 2011 letter pertain to matters unrelated to the instant charge of
being “rude and inhospitable to a number of guests and the members family”
the complaints in Martino’s email had been proven, a period

Assuming

of 2-3 years would have elapsed without the Grievant having committed similar
misconduct

thereby diminishing the grounds for his termination based on a

single non-egregious incident. No nexus was established between such alleged
incidents as slamming drinking glasses into the dishwasher, speaking to Club
members or guests, preparing incorrect drinks, taking food from the refrigerator
and not wearing a tie and the incident for which he was purportedly terminated,
namely, disrespecting Club members and guests.
In the Award of Arbitrator Mackenzie, she placed Cremin on a “final
warning” for his insubordination towards General Manager Sheehan. The
Grievant had “refused to follow a direct order by his General Manager, and he
cursed at, physically blocked and threatened the General Manager in the
presence of staff” The incident occurred at the 2009 employee Christmas Party
and the award was issued in October 2010. Notwithstanding the plethora of
infractions the Grievant allegedly incurred since October 2010, the vast majority
of which Cremin had no notice, the Employer has no record of comparable
misconduct to which the Final Warning would be applicable.
Considering the totality of the evidence adduced by the Employer,
including the unenforceable LCA and the Disciplinary notices, most of which were

Case 1:15-cv-01203-LTS Document 1-5 Filed 02/19/15 Page 26 of 28

unbeknownst to the Grievant and the Union, the Arbitrator finds no just cause for
the Grievant’s termination.
As a long-term employee, who testified credibly and was denied Union
representation, Cremin is entitled to a make whole remedy. He shall be
reinstated to his position as Club Bartender, effective immediately, with full back
pay, less unemployment compensation benefits, seniority credit, and
commensurate fringe benefits.

NOW THEREFORE, as the duly selected Arbitrator, having heard the
evidence presented, I hereby issue the following:
AWARD

(1) The Employer did not have just cause to terminate the Grievant,
Timothy Cremin, by implementing the terms of his Last Chance
Agreement.
(2) The Employer did not have just cause to terminate the Grievant,
irrespective of his LCA.
(3) The Grievant shall be reinstated to his position as a bartender at the
Westchester Hills Golf Club, effective immediately, with full back
pay, less unemployment compensation benefits, seniority credit and
commensurate fringe benefits.
to address any issues
(4) The Arbitrator shall retain jurisdiction
that may arise in the implementation or interpretation of the remedy
portion of this award.

Case 1:15-cv-01203-LTS Document 1-5 Filed 02/19/15 Page 27 of 28

January28, 2015

RobertT, Simm&kjaer

STATE OF NEW YORK}
COUNTY OF NEW YORK} SS:
I hereby affirm on my oath as arbitrator that I am the person who executed
the foregoing instrument which is my award.

January28, 2015

RobertT, Simm&kjaer

Case 1:15-cv-01203-LTS Document 1-5 Filed 02/19/15 Page 28 of 28

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