Faris Young

Arbitration Advocacy
Assignment #5
November 1, 2022

Final Argument

Introduction
o Good afternoon. My name is Faris and with me here today is Karol. We are here to
arbitrate the matter of the International Association Transport Workers (IATW) Union on
behalf of Karol Brezenski and Picket Up Delivery Services.
o This dispute centers around the wrongful discharge of Karol by Picket Up Delivery
Services. You have to make three determinations: (1) whether the Policy was reasonable,
(2) whether the notice of the Policy was reasonable, and (3) whether Brezenski was fired
for just cause. The facts presented at arbitration showed the new Policy implemented
was not set out reasonably, especially for an immigrant with ADHD. PUDS’ employees
must be reasonably informed of any rule changes, but the way The Human Resource
Director implemented the policy was far from reasonable. This unfortunate situation of
one of PUDS top employees, who had a difficult time following and understanding
directions, was not a just cause termination.

Theory of the Case

 What Happened
o Karol Brezenski, a hard-working veteran employee for Picket Up Delivery
Services, was abruptly fired for allegedly breaching an unreasonable employment
Policy
o Brezenski never received sufficient notice of the new Policy and was fired
without just cause
 Reasoning
o Brezenski is a Croatian immigrant who has struggled to overcome adversity in
learning English as a second language
o Brezenski suffers from Attention Deficit Hyperactivity Disorder, Inattentive Type
(ADHD-I)
 Legal Theory
o Brezenski’s Union, the International Association of Transport Workers, filed a
grievance on Brezenski’s behalf requesting reinstatement at the job classification
before termination and full back pay

Presentation of Facts
 Brezenski Background
o Immigrated to the United States sixteen years ago
o For the past fourteen years, Brezenski worked as a Loading Specialist at PUDS
o Brezenski is a busy parent to three school-aged children and is dedicated to the
family
o Established at PUDS as an outstanding and well-liked employee
o Brezenski was living the American Dream
 Background on PUDS
o PUDS is the fourth largest delivery company in the United States
Faris Young
Arbitration Advocacy
Assignment #5
November 1, 2022

o Five years ago, PUDS’ employees formed a union called Local #512 of the
IATW, to ensure that future management would treat them fairly
o IATW and PUDS entered into a Collective Bargaining Agreement (“CBA”)
which allowed PUDS to set up “reasonable” rules for hours of employment and
“reasonable” rules in regard to tardiness, sick days and makeup time
 Implementation of the Policy
o A.M. Wexler, PUDS’s Human Resources Director instated a new Attendance and
Tardiness Policy
o The Policy provides specific courses of action and remedial measures to be taken
by PUDS and PUDS’ employees in the event that an employee is tardy and fails
to take the actions required by the Policy
o An employee can be terminated after four violations of the Policy
o The new Policy is very different than the old policy
 Before the Policy, PUDS was very generous to employees, and in
particular, strived to be flexible regarding time schedules and tardiness
o Shortly after the Attendance and Tardiness Policy was approved, and with only
one day advance warning to employees, Wexler went into the PUDS’ warehouse
area to notify employees of the Policy
 Wexler gathered only 45 of PUDS’ 400 employees and made an
announcement about the Policy
 The warehouse is the size of a football field, and as Wexler spoke, there
was background noise
 Several employees said they found it hard to hear Wexler’s statement
o This was the first time that most employees had ever come in contact with Wexler
o The only other attempts to put the rest of the 355 employees on notice included:
 Wexler posted a copy of the Policy on a cluttered company bulletin board
 There were many others important notices on the bulletin board as
you can see from Exhibit 28
 The Policy was posted on the company’s website
 Many employees do not have access to computers
 The Policy was available in the policy manual in Wexler’s office
 Wexler is intimidating and not known by many employees
 The Policy was given to the Union Steward and Lead Worker, Ashley
Dover
 Dover actively did not follow the Policy nor thought others needed
to
 Brezenski’s Alleged Violations of the Policy
o First Alleged Violation

 Brezenski arrived 30 minutes late to work and did not report the tardiness
Dover
 Marino noted Brezenski’s late arrival and reported it to Dover
 Dover told Brezenski not to worry about the violation
Faris Young
Arbitration Advocacy
Assignment #5
November 1, 2022

 Brezenski made up the time at the end of the day

o Second Alleged Violation

 Brezenski was 45 minutes late to work because of the spouse’s illness

 Brezenski reported it to Dover
 Dover was required to report the second violation to Marino, but did not
 Brezenski made up the time at the end of the third day after being late but
did not receive permission from Dover, to make up the time within five
days as required by the Policy
 Meeting with Wexler
 Wexler called Brezenski into her office
 Brezenski was intimidated by Wexler and his office
o Office was formal and plush
o Wexler’s position and education threatened and coerced
Brezenski because Brezenski only has a high school
equivalency education
o Brezenski recalls being incredibly upset during the
meeting, especially when Wexler told Brezenski that
Brezenski could be suspended or terminated if the Policy
was violated again
o Brezenski tried hard to concentrate during the meeting but
couldn’t and was distracted by a jar on Wexler’s desk
which read, “Ashes of Problem Employees” as seen in
Exhibit 30
o Brezenski was also distracted by the various clutter and
colors in Wexler’s office, especially Wexler’s computer
screen saver
o When Wexler asked if what was said was clear, and
Brezenski said “yes” because Brezenski was embarrassed,
nervous, and intimidated
o Third Alleged Violation

 Brezenski was one hour late for work, and looked for but could not find
Dover
 After searching for one hour, Brezenski decided it would be better to go to
work rather than keep looking
 Wexler notified Brezenski and Dover that Brezenski had committed a
third violation and invited Dover and Brezenski to meet
 Dover sent an email to the Wexler declining the invitation of the meeting
o Fourth Alleged Violation
Faris Young
Arbitration Advocacy
Assignment #5
November 1, 2022

 Brezenski was two hours late again one morning because Brezenski’s
spouse was out of town at a conference, and she had to drive the children
to school
 Brezenski was not able to make up the time within one work day because
of obligations with the children which Brezenski explained to Dover
 Dover said that the matter could probably be taken care of and Dover did
not communicate with management until after Brezenski was terminated
 Brezenski was terminated

Liability

Unreasonableness of New Attendance and Tardiness Policy

 Applicable Law
o Reasonableness Definition
 Defined by the CBA as being in accordance with reason; not extreme or
excessive; moderate and fair, and possessing sound judgment
o Binding Past Practice
 A binding past practice includes the following characteristics: (1) clarity
and consistency; (2) longevity and repetition; (3) acceptability; (4) a
consideration of the underlying circumstances; and (5) mutuality
 Unnecessarily Complex and Inflexible
o Policy is Impossible to Understand
 Consists of four different methods of discipline and consequences
 Each separate violation provides complicated steps than an employee and
their supervisor must take upon arriving to work
 Does not make clear what constitutes a violation on its face
o Policy is Not Flexible
o Completely inflexible because it fails to take into account circumstances
that may not require an employee to follow the terms
o Instead, it suggests tardiness for any reason allows an employee to be
disciplined and provides no excused absence time
o The mandatory reporting procedures are unreasonable, especially when
employee’s supervisors do not follow the procedure
 Runs Contrary to PUDS’s Past Practices

o The NITA Supreme Court has held that in addition to considering express
contractual language in a CBA, an arbitrator can consider the parties’ past
practices in order to resolve a dispute surrounding such an agreement
o For 20 years PUDS had a practice of being flexible and generous to employees
regarding time schedules and tardiness
o Unlike the new Policy, employees who arrived late were expected to make up
time as soon as the employee was able to do so
Faris Young
Arbitration Advocacy
Assignment #5
November 1, 2022

o The new Policy is an unreasonable break from a practice that PUDS’ employees
have come to understand and appreciate
 Fails to Take Into Account Individual Employee’s Past Performance
o Fails to consider how Brezenski is a veteran employee of PUDS with a stellar
performance record
o Brezenski has been commended on numerous occasions for work ethic and
character, and has also steadily moved up in job classification
o The Policy fails to provide any type of concession for Brezenski’s service record
in considering what type of discipline is appropriate for her tardiness
o Instead, the Policy lumps all employees into the same category, which not only
fails to recognize those employees who have made a significant contribution or
sacrifice for the company, but also creates a disincentive for employees to
distinguish themselves
 PUDS Failed to Consult with IATW When Implementing the Policy

o NITA courts have held that provisions in a CBA are considered a voluntary act of
each individual member of a Union if the agreement is properly negotiated and
ratified by union membership
o Article 28 of the CBA allows PUDS to implement reasonable rules of
employment regarding time keeping, but there is no evidence that the new Policy,
as a provision of the agreement, was negotiated or even discussed with IATW

Unreasonableness of Implementation of New Attendance and Tardiness Policy

 Applicable Law
o PUDS must prove it gave reasonable notice to employees
 Policy Not Sufficiently Communicated to Employees

o PUDS employs 400 employees, but chose to inform only 45 of these employees
of the new Policy in a large, noisy warehouse
o The 45 employees in attendance were only given a one-day advance warning of
the meeting, making it utterly impossible for those employees to have time to
review any materials beforehand or prepare questions to ask during the
presentation
o Many employees remarked that they found it difficult to hear Wexler’s statement
o PUDS posted a copy of the Policy on the bottom corner of a cluttered company
bulletin board where it was virtually undetectable by any employee
 It is manifestly unreasonable to flood a board with a mix of important and
non-important information and then charge employees with notice of all of
that information
o PUDS posted the Policy on the company’s website, but because many of its
employees do not have access to computers, the Policy is not accessible
 Notice Procedure Did Not Take Into Account Individual Employee’s Abilities
Faris Young
Arbitration Advocacy
Assignment #5
November 1, 2022

o Implementation did not take into account an individual employee’s ability to

comprehend rules
o PUDS failed to make any special effort to explain the new Policy in a way that
employees like Brezenski could understand
o PUDS had knowledge that Brezenski speaks English as a second language but
made no effort to ensure that Brezenski understood how the Policy worked
 Wexler Implemented the Policy with Intimidation

o Wexler first told employees about the Policy when Wexler made an
announcement in the warehouse on a raised dias
o Wexler, a former Pentagon employee, was portrayed as virtually unapproachable
to employees, and in fact, the warehouse announcement was the first time that
most employees had ever come in contact with Wexler
o Brezenski did not have sufficient notice and understanding of the Policy when
Brezenski visited Wexler’s office after the alleged second violation, because
Brezenski spent the majority of the meeting focused on Wexler’s “Ashes of
Problem Employees” jar
o Wexler’s condescending demeanor significantly out-weighed any explanation that
was provided during that meeting

Karol Brezenski was Not Terminated for Just Cause

 Applicable Law
o Definition of Just Cause
 CBA does not define just cause for discharge, so the arbitrator is free to
adopt a reasonable definition
 NITA Statute § 43A.33 provides guidance concerning just cause where it
states, “just cause includes, but is not limited to consistent failure to
perform assigned duties, substandard performance, insubordination, and
serious violation of written policies and procedures, provided the policies
and procedures are applied in a uniform, nondiscriminatory manner”
o Burden of Proof
 PUDS, the employer, has the burden to prove there is just cause for
discipline and just cause for the extent of the discipline
o Whether Employee was Discharged for Just Cause
 An employee is only in violation of the Policy if the employee is tardy
AND fails to take appropriate steps later
 Brezenski Did Not Violate the Policy on at Least Two Occasions

o Brezenski’s first and second alleged violations are not violations of the Policy
o If an employee is going to be late, the Policy requires that the employee must
report to Dover in order to schedule make up of lost time, and shall make up the
lost time as required
Faris Young
Arbitration Advocacy
Assignment #5
November 1, 2022

o For the first violation, Brezenski failed to report Brezenski’s tardiness but did
make up the time; failure to report was only a technical violation; Brezenski
actually complied with the Policy
o For the second alleged violation, Brezenski reported the tardiness to Dover and
made up the time albeit three days after being late, making this also just a
technical violation; Brezenski actually complied with the Policy
 Even If Brezenski Violated the Policy, Brezenski Was Not Terminated for Just Cause

o Brezenski had family circumstances beyond her control which caused occasional
lateness and periodically prevented Brezenski from making up time
o PUDS’ investigation and reprimand of Brezenski for the alleged violations was
unfair because it failed to follow the Policy as enacted
o An employer’s condonation of an employee’s wrongful conduct is a mitigating
factor that may cause the employer to waive its right to discharge the employee
o On more than one occasion, Dover indicated that Brezenski’s tardiness was not a
problem or that Brezenski’s make up time was taken care of
o On at least one occasion, Brezenski couldn’t even find the appropriate official to
report the tardiness to

Damages
 Brezenski should be reinstated with full back pay because:
o (1) The Policy that Brezenski was fired for breaching is unreasonable
o (2) Brezenski was fired for violating a Policy that was enforced with insufficient
notice, that could not be understood, and as provided with intimidation
o (3) PUDS was not able to prove that Brezenski was terminated for just cause

Conclusion
 On at least two occasions Brezenski complied with the spirit of the Policy and any
violations were merely technical
o PUDS is arguing in favor of a strict policy and yet, Brezenski did not violate it in
a literal reading
 The policy is overly complex and poorly drafted; it was not effectively communicated to
the employees
o Even though Karol Brezenski signed a document that stated Brezenski understood
the policy, the policy was so complex that no one could understand it even though
they thought they did
 Karol Brezenski should be reinstated with full back pay
 Thanks
o On behalf of Karol and myself, thank you for your time and for bringing this case
to a conclusion