Opening Statement Outline

Introduction/Summary of Facts, Law, and Theories

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.

This dispute centers around the wrongful discharge of Karol by Picket Up

Delivery Services. The facts presented at arbitration will show that Karol was not
fired for just cause as 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.

Presentation of Facts

PUDS is a large parcel delivery company, owned by Homer Picket. Three

years ago, Picket encouraged his employees to form a union, and as a result, IATW
was formed, and a Collective Bargaining Agreement was reached. Picket has
historically been very generous with employees regarding attendance and
tardiness. His only requirement when employees were late was that they make up
missed time as soon as possible.

Due to the company’s recent fast growth, Picket hired Wexler the
company’s first Human Resources Director. After realizing the current
timekeeping policy was resulting in potential financial losses to the company,
Wexler sought permission to design a new attendance and tardiness policy.

The CBA allows PUDS to develop and implement “reasonable” rules of

employment and promulgate “reasonable” reporting and record keeping
obligations in regard to tardiness, sick days and make up time. “Reasonable” is
defined in the CBA as “being in accordance with reason; not extreme or excessive;
moderate and fair, and possessing sound judgment.”

After Mr. Picket approved the Policy, Wexler provided notice by gathering
roughly 45 employees in the warehouse and announcing the Policy with a loud
speaker. Wexler then proceeded to post the notice of the new Policy on the
company bulletin board, on the PUDS’ website as well as making copies available
in the Human Resource Director’s office and providing a copy to the Union
Steward and Lead Worker, Dover. A thirty-day trial period began immediately
after the announcement and the new Policy was fully implemented after the thirty-
day trial period.

Karol was the first PUDS employee terminated under the new Attendance
and Tardiness Policy. Karol’s first violation occurred when Karol arrived 30
minutes late to work and failed to report the tardiness. L.T. Marino, Managing
Supervisor, noted this and reported it to Karol’s Lead Worker, Ashley Dover, and
placed a written notation in Karol’s personnel file. Karol made up the time at the
end of the day.

The second violation occurred when Karol arrived 45 minutes late to work.
Karol reported the tardiness to Dover, but the tardiness was never reported to the
Managing Supervisor, Marino, as required by Dover. Karol made up the time on
the third day but had not received permission to make up the time later as was
required by the Attendance and Tardiness Policy. One-week later Karol met with
Wexler to discuss the two violations of the new Policy. Wexler explained the
Policy and informed Karol that if there was one more violation of the Policy, Karol
would be suspended or even terminated. Karol told Wexler that the new Policy was
understood and signed a statement to that effect, even though she did not fully
understand what Wexler had explained in their meeting.

Karol suffers from ADHD, which made it almost impossible for her to focus
during her meeting with Wexler. Wexler’s office is teal in color, has a screensaver
on her computer with fish that are bouncing and swimming around, a bubbling
noise coming from it, and a jar that was directly facing Karol that stated, “Ashes of
Problem Employees”. PUDS was unaware that Karol had ADHD, nor were they
aware that Karol did not understand the Policy. Wexler herself noted that she uses
many big words while speaking, and since English is not Karol’s first language,
she noted she should have checked with her or explained in a better way for her to
understand.

Karol was late a third time and after searching for an hour, failed to find
Dover to whom to report the tardiness. Karol received a written reprimand after a
review of Karol’s time card showed that Karol was late. Karol never made up the
time because she had to take care of her children. Wexler invited Dover and Karol
to meet to discuss the third tardiness violation, but the invitation was declined by
Dover because she did not feel it would be of any positive use, especially since the
last one caused Karol to feel threatened and embarrassed. Karol was suspended for
five days without pay.

The fourth violation of the Policy occurred when Karol was two hours late
and was not able to make up the time within one week. Karol told Dover about the
tardiness, but Dover did not communicate the tardiness or Karol’s inability to make
the time up by the end of five work days to L.T. Marino, the Managing Supervisor.
Karol never made up the time and was subsequently terminated due to Dover’s
inability to follow the notice procedure.

Karol’s family is now having trouble making ends meet. Her husband’s
salary cannot cover all of their family’s expenses. Since the firing, she is very
depressed, has lost weight, cannot sleep and is all around suffering from this
incident.

Brief Statement of Law

First, the employer PUDS must prove the new Policy was reasonable. The
arbitrator will have to make two determinations: (A) whether the overall Policy
was reasonable, and (B), whether the notice of the Policy was reasonable. One way
to analyze reasonableness is to look at the past practice of the employer. 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.

Second, the employer, PUDS, must prove that the employee’s termination
was the result of just cause. Just cause for discipline exists only when an employee
has failed to meet his obligations under the fundamental understanding of
employment relationship. The employee’s general obligation is to provide
satisfactory work. Satisfactory work has four components: (1) Regular attendance,
(2) Obedience to reasonable work rules, (3) A reasonable quality and quantity of
work, and (4) Avoidance of conduct, either at or away from work, which would
interfere with the employer’s ability to carry on the business effectively.

Comments on Opposition’s Case

PUDS will argue that the new Policy is a reasonable rule of employment but
issues with the rule include: (1) it was implemented unilaterally without
consultation with the IATW (2) it unnecessarily establishes a level of complexity
that makes the policy unenforceable and unreasonable, (3) it runs contrary to the
past practice of PUDS and its relationship to its employees and the union, (4) it
does not provide reasonable flexibility, and (5) it does not take into account
individual employee’s prior employment history.

For my client specifically, the rule was insufficient in that (1) it was
excessively complex and not understandable, (2) it was not sufficiently
communicated to all employees, (3) it does not make into account her ability to
comprehend rules, and (4) she was provided with improper notice and intimidation.

PUDS previous practice prevents such a new Policy. PUDS’ past practice of
permitting employees the flexible ability to make up their own time fits within the
above definition and is, therefore, binding and prevents enforcement of the new
Policy. At the least, the past practice demonstrates that the new, rigid Policy is
unreasonable.

Even if the new Policy is substantively reasonable, PUDS must also prove
that it gave reasonable notice to employees. First, the oral announcement was
unreasonable because it took place in a noisy warehouse. The noise problem is
aggravated in Karol’s case because Karol does not understand English well and has
ADHD. In light of these two factors, the Human Resource Director did not possess
“sound judgment” in making the announcement. Second, putting the Policy on the
bulletin board was insufficient notice because the board was cluttered with an
excessive amount of information. In fact, at the time of posting, there were many
“important notice” fliers among the remaining barrage of leaflets and handbills.

Restatement of Summary of Facts, Law, and Theories

In summary, Karol’s first and second alleged violations are not violations of
the Policy. If an employee is going to be late, the Policy requires that “the
employee must report to their Lead Worker in order to schedule make up of lost
time and shall make up the lost time as required.” For the first violation, Karol
failed to report her tardiness but did make up the time. The failure to report was
only a technical violation. As a result, Karol actually complied with the Policy.
Likewise, for the second alleged violation, Karol reported the tardiness to Dover,
and made up the time albeit three days after being late. This was also just a
technical violation therefore, Karol actually complied with the Policy.

PUDS did not have just cause to terminate Karol’s employment. Again,
Karol was an exemplary employee. Karol had family circumstances beyond her
control which caused occasional lateness and periodically prevented Karol from
making up time. Further, PUDS’ investigation and reprimand of Karol for the
alleged violations was unfair because it failed to follow the Policy as enacted. 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. On more
than one occasion, Dover indicated that Karol’s tardiness was not a problem or that
Karol’s make up time was taken care of. On at least one occasion, Karol couldn’t
even find the appropriate official to report the tardiness to. Accordingly, PUDS did
not have just cause to fire Karol.

Request for Relief

Karol is requesting Reinstatement with full back pay is the reasonable

remedy based on PUDS inability to prove just cause.