American Arbitration Association
Levy Restaurants
AAA # 01-15-0004-4073
And
Gr: Elvia Sanchez
UNITE HERE Local 26
Arbitrator:
Roberta Golick, Esq.
Hearings:
March 30, 2016; May 11, 2016
Award: July 26, 2016
Appearances: For the Employer
Wendy H. Chu, Esq.
Deutsch Williams Brooks DeRensis & Holland, P.C.
For the Union
Ian O. Russell, Esq.
Pyle, Rome, Ehrenberg, P.C.
The Issue
The parties were unable to formulate a joint statement of the issue, and authorized me to decide.
The Union proposed:
Did the Employer violate the collective bargaining agreement when it did not fill an opening on
the list for Banquet Preferred Servers with Elvia Sanchez? If so, what shall be the remedy?
The Employer proposed:
Did Levy Restaurants violate Article 8 of the collective bargaining agreement when it declined to
promote the Grievant to the Preferred Server list in April 2015? If so, what shall be the remedy?
1
The dispute between the parties revolves around their disagreement about the applicability of Article 8
to the facts generally, and more specifically about whether the filling of the Preferred List Banquet
Server opening with a Roll Call List Banquet Server constituted a “promotion.” Accordingly, the Union’s
proposed statement of the issue, which allows consideration of both Article 8 and Article 11 – the
Article the Union claims governs this dispute – is more fitting and is adopted.
The Agreement
The parties’ June 1, 2013 to May 31, 2018 collective bargaining agreement provides, in part:
Article 8
Hiring Procedures/Job Openings
8.1
When new employees are required in classifications covered by this Agreement, the Union shall
be given an opportunity to furnish such help satisfactory to the requirements of the Employer. The
referral by the Union of applicants for the jobs shall be on a non-discriminatory basis, and shall not be
based on or in any way affected by Union membership, by-laws, rules and regulations, constitutional
provisions, or any other aspect or obligation of Union membership, policies or requirements. The
Employer retains the right to reject any job applicant referred by the Union, and retains the right to
secure the needed employees in any manner it deems appropriate. The Employer will provide job
postings to the Union Office and the Local 26 Hotel Training Center.
8.2
The parties agree that promotions from within the bargaining unit are preferable to hiring from
outside the bargaining unit. Bargaining unit job openings shall be posted for at least seven (7) calendar
days in locations reasonably accessible to employees. Such postings shall include the job
classification(s), contractual rates(s) of pay, job responsibilities and requirements and general
schedule(s) of hours and days to be filled. Employees may submit written requests for such job
openings within the posted period. The Employer will give consideration to such request, and the most
senior qualified employee will be given the open job. The Employer retains the right to consider past
performance when making hiring, transfer and promotional decisions. In the event no requesting
employees have the skills, qualifications and ability to perform the work required for the vacancy, such
vacancy shall be filled by the Employer.
Article 11
Seniority & Scheduling
11.1 Union Seniority is defined as the date of hire by the Employer, predecessor employer(s) or
Aramark at either the BCEC or the Hynes, or the date of rehire by the Employer, in the case where
previous seniority has been broken.
11.2 Classification Seniority is defined as the employee’s start date in a classification. Employees
shall maintain Classification Seniority in only one (1) classification at a time.
2
11.3 Seniority for two (2) or more employees hired on the same date or entering a new classification
on the same date shall be determined by the last four digits of their social security number. The
employee with the lower number shall receive the higher position on the seniority list.
…
11.17 The Employer agrees to create a list of Preferred servers, not to exceed ten (10) from the
existing workforce who have established seniority. Preferred servers will be required to work a
minimum of forty (40) shifts a year to remain on the Preferred list. The parties agree to revisit this
number depending on business. If an employee on the Preferred list fails to work a minimum of forty
(40) shifts a year, he or she will be placed back on the Roll Call list.
11.18 Management shall have the right to determine the number of Long End staff on its list. In order
to maintain Classification Seniority, Long End employees must work a minimum number of shifts in his
or her primary classification as set forth below:
a.
Long End Servers – 125 shifts in the preceding calendar year.
b.
Long End Bartenders – 40 shifts in the preceding calendar year.
Long End employees who work fewer than the minimum required number of shifts shall be placed on
the Preferred List. When there is an opening on a list, the most senior qualified employee on the next
list will fill that opening. The above will be adjusted if a Long End is not able to work due to an employer
approved LOA, MLOA, Bereavement Leave, Jury Duty, or a lack of work.
Background
This case involves the Union’s claim that the Employer violated Article 11.18 of the collective bargaining
agreement when it declined to fill an opening on the Banquet Server Preferred list with Grievant Elvia
Sanchez, an employee on the Banquet Server Roll Call list.
The classification of Banquet Server is one of several classifications covered by the parties’ collective
bargaining agreement. As the job title suggests, Banquet Servers represented by Local 26 are
responsible for servicing catering events at Levy Restaurants’ two Massachusetts locations – the Boston
Convention & Exhibition Center (BCEC) and the John B. Hynes Veterans Memorial Convention Center
(Hynes). Duties include setting up, maintaining, clearing and breaking down assigned services and work
areas, following banquet event orders, and attending staff pre-shift meetings. Levy Restaurants also
3
expects its employees to deliver the “Levy Difference,” which is described as exhibiting heartfelt
hospitality with a welcoming and positive approach, pride in the work, and excellence in positively
impacting the guest experience. The number of banquet servers assigned to work an event depends
upon the type and size of the event.
The Employer maintains four separate lists of Banquet Servers. They are the Long End list; the Preferred
list; the Roll Call list; and the Overflow list.1 Each list is maintained in seniority order. These lists govern
the method by which servers are scheduled for events.
The scheduling of Banquet Servers involves a complex system of rotating “wheels.” For purposes of this
case, what matters in this complex system is that for any event, Long End servers have the first option to
accept banquet assignments; Preferred servers have the next option to accept such assignments; Roll
Call servers have the next option; and Overflow servers are tapped last. The result of this arrangement
is that Long End servers end up with the highest number of work opportunities, followed by Preferred
servers, followed by Roll Call servers, followed by Overflow. The collective bargaining agreement
requires that for a Long End list server to remain on the Long End list, the server must accept/work a
minimum of 125 shifts in a calendar year.2 Preferred servers must accept/work a minimum of 40 shifts a
year.
Prior to 2010, food services at the Hynes and the BCEC were provided by Aramark Sports, and were
covered by a collective bargaining agreement between Aramark and Local 26. In 2010, Levy took over
the operations. Levy assumed the obligations set forth in the 2010-2013 collective bargaining
1
2
The Roll Call list comprises two server groups – Hynes Roll Call and BCEC Roll Call.
There are exceptions to this set forth in the agreement, not relevant here.
4
agreement then in place; it retained the incumbent Banquet Servers and preserved the previously
existing server lists.
Both the 2010-2013 Aramark contract and the subsequently negotiated 2013-2018 Levy contract
contain a provision calling for a Preferred list of servers, “not to exceed 10 from the existing workforce
who have established seniority.” In 2013, there were six servers on the Preferred list. On March 6,
2015, Levy posted two openings to bring the Preferred list up from six to eight.3 The Qualifications listed
on that posting were: “Must be able to lift and carry trays weighing up to 50 lbs on a regular and
continuing basis; push and pull equipment weighing up to 250 lbs; speak, read, write and understand
English; 10 years’ experience as a Banquet Server at BCEC and/or Hynes.” Under Requirements, the
posting stated: “History of exemplary performance with proven ability to deliver the Levy Difference.
This includes exhibiting heartfelt hospitality with a welcoming and positive approach, pride in your work,
and excellence in positively impacting the guest experience.” The posting instructed applicants to
submit a “transfer request” to Human Resources.
After the posting went up, Union Representative Mark Roth contacted then-Director of Human
Resources Yvette Moreland to protest the ten-year server requirement in the posting. Ms. Moreland
then re-posted the openings without that requirement, and she extended the deadline for applications.
Grievant Elvia Sanchez, among others, submitted a request to go onto the Preferred list. Ms. Sanchez’s
seniority date (both her Union and her Classification seniority date) is June 20, 2000. At the time, the
highest name on the Roll Call list was Lucia Kehoe (seniority November 10, 1998); then Mary Horrigan
3
At the time, the Employer acceded to the Union’s wish to add just two, rather than the four that Levy initially
wanted.
5
(October 30, 1999); then Elvia Sanchez (June 20, 2000); then Sueli Telles (June 20, 2000). Mary Horrigan
did not wish to be considered for the Preferred list.
Following interviews with the various applicants, Levy selected Lucia Kehoe and Sueli Telles for the two
Preferred list openings. Local 26 filed a grievance on behalf of Ms. Sanchez, claiming a violation of
“seniority.” Levy defended the decision to deny Sanchez placement on the Preferred list, explaining that
Sanchez “was not the most senior qualified team member.” Specifically, Levy explained in response to
the grievance dated May 6, “There are two qualifications established in our posting that Elvia does not
meet at the present time: Ability to speak, read, write and understand English and a history of
exemplary performance with proven ability to deliver the Levy Difference.” Levy wrote, “The team
member promoted has the same union seniority date as Elvia and meets all established requirements.”4
The grievance proceeded, unresolved, to arbitration.
The Parties’ Positions
The Union contends that Article 11, Section 11.18, governs the manner in which an opening on a
Banquet Server list is to be filled. The selection of a Roll Call server to fill an opening on the Preferred
list did not involve a promotion, as the Employer claims. Ms. Sanchez was already in the Banquet Server
classification. Pursuant to Article 11.18, the sole criteria for filling the opening on the Preferred list was
that “the most senior qualified employee on the next list” be selected. Ms. Sanchez was plainly
“qualified” under Article 11.18 to perform the necessary work, and she was more senior than Ms. Telles.
4
The Employer did not press in its post-hearing brief an earlier argument that Sanchez and Telles were equals in
seniority. In fact, Article 11.3 handily disposes of any such claim. Though Sanchez and Telles were both hired on
the same date and became Banquet Servers on the same date, Ms. Sanchez, whose final four digits of her social
security number are lower than those of Ms. Telles, is contractually deemed higher than Ms. Telles on the seniority
list.
6
Levy violated the contract by relying on Article 8 rather than Article 11 to justify its decision to bypass
Ms. Sanchez.
As a remedy, the Union requests that Ms. Sanchez be placed on the Preferred List.
The Employer maintains that movement of bargaining unit members from the Roll Call list to the
Preferred list constitutes a “promotion,” and that Levy correctly relied on Article 8 for the promotion
decision at issue. Servers on the Preferred list work significantly more events than servers on the Roll
Call list. They have more opportunities to work as “Captain” at events. Greater work opportunities
translate into more compensation and more responsibility. Therefore, the Employer argues, Article 8
governed the selection of members for the Preferred list, and weighing of Sanchez’s past performance
was appropriate.
The Union’s interpretation, Levy continues, would render other parts of the contract meaningless and
lead to nonsensical results, and it asks that the grievance be denied.
Discussion
The source of the conflict between the parties is the Employer’s position that the movement of a
Banquet Server from the Roll Call list to an opening on the Preferred list is a promotion governed by
Article 8. Significant in that regard for purposes of this case, Article 8 provides: “The Employer retains
the right to consider past performance when making hiring, transfer and promotional decisions.” The
Union’s position is that the movement of a Banquet Server from the Roll Call list to an opening on the
Preferred list is not a “promotion,” and is not governed by the terms of Article 8. Rather, such
movement, in the Union’s view, is governed by language contained in Article 11.18 dealing with
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seniority and scheduling: “When there is an opening on a list, the most senior qualified employee on the
next list will fill that opening.”
For a number of reasons, I agree with the Union that the filling of an opening on the Preferred list by a
Banquet Server on the Roll Call list is a matter governed by Article 11 and not by Article 8.
First, the words of the contract alone, while not perfectly and unmistakably clear as to the parties’
intent, do favor the Union’s position. There is no dispute that a Banquet Server on the Roll Call list is in
the exact same classification, has the same job title, has the same job responsibilities, makes the same
hourly rate, and maintains the same reporting relationships up the chain of command as a Banquet
Server on the Preferred list. It is the same job – the sole differences being the frequency of work
opportunities (by virtue of the established ‘wheel’ system) and the concomitant requirement that the
server accept/work the necessary number of opportunities to remain on the aptly named Preferred list.
Though what might constitute a promotion in the employment world would not necessarily require a
wholesale change of title, pay, duties, and authority, it is notable here that movement at Levy from the
Roll Call list to the Preferred list comes with none of the above and no alternative indicia of promotion
beyond the preferred access to available work. It is that increase in work opportunity that translates
into the beneficial impact on an employee’s overall compensation. To call that a “promotion” in the
technical sense is something of a stretch, and Levy itself did not refer to the filling of the opening here as
8
a “promotion” until after the Union filed Ms. Sanchez’s grievance.5 That employees among themselves
might regard the filling of an opening on a better Banquet Server list as a promotion does not make it so
in the contractual sense. And the fact that there are employees currently on the Preferred list with less
seniority than employees on the Roll Call list does not prove the point because no one can explain when
or how that came about, but it was not during Levy’s tenure.
In contrast to management’s general reservation of rights in Article 8 to consider past performance
when making hiring, transfer and promotional decisions, there is the very specific language of Article
11.18 which, standing on its own, is directly on point and would seem, on its face, to dictate how
openings on a Banquet Server list is to be filled: “When there is an opening on a list, the most senior
qualified employee on the next list will fill that opening.” This process of filling openings on a server list
is not couched in terms of promotion (or even transfer), is not housed in the contract article that
addresses what may be considered the filling of vacancies6, and makes no reference to Article 8 at all.
The filling of an opening on a server list as envisioned in Article 11.18, as the Union duly notes, is a
matter of scheduling.7 While there is still room for disagreement as to how Article 11.18 ought to be
applied, it is difficult to argue – on the words alone – that it does not apply at all.
5
The posting asked applicants to submit “transfer” request forms to indicate their interest in the Preferred list
openings. The posting includes what is apparently standard transfer-form language (inapplicable to the filling of
openings on the Preferred list), referencing transfers “to the other building in the same classification” and
transfers “to another classification, regardless of building.” Levy is correct that Article 8 permits the employer to
consider past performance when making hiring, transfer and promotional decisions. However, the focus in this
case was on Levy’s assertion that what was at stake here was a promotion. No evidence (beyond the posting) was
presented on whether movement from one list to another in the same server classification is a “transfer” within
the meaning of Article 8.
6
Article 8.2 provides: “In the event no requesting employees have the skills, qualifications and ability to perform
the work required for the vacancy, such vacancy shall be filled by the Employer.”
7
To the extent a vacancy might be created by the upward movement of employees on the Roll Call list, the
vacancy would be at whatever level it is that the Employer actually installs newly hired Banquet Servers.
9
If there were any doubt that the language of Article 11.18 provides specific direction as to the filling of
openings on a server list, a look back at the construction of the contract through the lens of bargaining
history dispels such doubt. At the outset, we see that Article 8 is a combination of two separate
provisions from the prior Aramark contract, plus the additional language negotiated by Levy and Local
26 in the 2013 bargaining.
The Aramark contract had an Article 8, entitled Hiring Procedures. The parties carried old Article 8
(word for word) into the Levy agreement, and labelled it Article 8.1.8 The Aramark contract had an
Article 21, entitled Job Openings. The parties carried old Article 21 into the Levy agreement (word for
word except for a longer posting period from 5 to 7 days) and labelled it 8.2. Old Article 21 referred
exclusively to the filling of promotional vacancies (“The parties agree that promotions from within the
bargaining unit are preferable to hiring from outside the bargaining unit…”). The Aramark contract had
no language in its Article 11 (Seniority) provision or anyplace else comparable to the Article 11.18
language that the parties agreed to in the Levy contract, and the Aramark contract had no language in
its Article 8 provision, its Article 21 provision, or anyplace else, reserving to the Employer the express
“right to consider past performance when making hiring, transfer and promotional decisions.” In adding
the language now under review in new Article 8 and new Article 11, what did the parties intend to
communicate?
Beyond the words themselves at the end of Article 8, there is no record evidence of how that new
language made its way into the contract.9 The evidence surrounding the insertion of the 11.18 language
8
Article 8.1 has an additional sentence requiring Levy to provide job postings to the Union.
It goes without saying, though, that this language at the end of new Article 8 had to have been proposed by the
Employer.
9
10
is illuminating, however, with respect to the filling of openings on the Preferred server list.10 A
management proposal from July 2013 memorializes the Employer’s withdrawal of a lengthy prior
proposal covering, among other things, minimum work requirements for the various server wheels and
the filling of openings on the Preferred banquet server list. The prior proposal included the following
relevant language:
Except as prohibited by law, Long End, Preferred and Roll Call Servers who work fewer than the
minimum required number of days shall be placed in the last position on the next lower
scheduling wheel for which they qualify, in Classification Seniority order. Overflow Servers who
work fewer than the required minimum number of days shall drop to the bottom of the
Overflow Server list. When an opening on one of the scheduling wheels is created because a
Server has not worked the required minimum number of days in the preceding calendar year,
the Employer may select a Server from the next lower scheduling wheel to fill that opening.
Such selection shall be made in Classification Seniority Order, provided the most senior Server
on that scheduling wheel is qualified and has worked the required minimum number of days
for the higher scheduling wheel.
The withdrawn proposal laid out an example:
For example, Server A is on the Preferred Server scheduling wheel. During the calendar year
2013, Server A has only worked ninety (90) days. Effective the first Monday in February 2014,
Server A is moved to the next lower scheduling wheel for which Server A qualifies, the Roll
Call scheduling wheel, and is placed in the last position on that scheduling wheel. This creates
an opening on the Preferred Server scheduling wheel. The Employer selects Server B to take
Server A’s place on the Preferred Server scheduling wheel because Server B is the most senior
Server on the Roll Call scheduling wheel and has worked one hundred and twenty (120) days
in the preceding calendar year. Everyone on the Roll Call scheduling wheel moves up one
position on the wheel when Server B moves to the Preferred scheduling wheel. In this example,
if Server B only worked ninety (90) days in the preceding calendar year and therefore does not
qualify for Preferred scheduling wheel, the Employer can select the next most senior Roll Call
Server on the Roll Call scheduling wheel to move on to the Preferred scheduling wheel. A Server
who moves to a higher scheduling wheel shall be placed in the last position on that wheel.
At the July 2013 bargaining session, the Company replaced the cumbersome language above with a
streamlined proposal:
In order to maintain Classification Seniority, Long End employees must work a minimum number
of days in his or her primary classification as set forth below:
10
At that time, the parties were referring to the “Preferred Server scheduling wheel” and “Roll Call scheduling
wheel” but it is clear that the “wheels” reflected the lists.
11
(a) Long End Server – One hundred fifty (150) days in the preceding calendar year.
(b) Long End Bartenders – Sixty (60) days in the preceding calendar year.
Long Ends who work fewer than the minimum required number of days shall be placed on the
Preferred List. When an opening on the Long End list is created because a Long End has not
worked the required minimum number of days in the preceding calendar year, the Employer
may select the most senior qualified employee in the classification to fill that opening.
At some point during bargaining, the language above was modified yet again, evidenced in the current
contract language reflecting lower minimum work days (now more appropriately referred to as “shifts”)
and concluding with the modified final paragraph as follows:
Long End employees who work fewer than the minimum required number of shifts shall be
placed on the Preferred List. When there is an opening on a list, the most senior qualified
employee on the next list will fill that opening. The above will be adjusted if a Long End is not
able to work due to an employer approved LOA, MLOA, Bereavement Leave, Jury Duty, or lack
of work.
To be sure, the above language tracks proposals that the Employer made, withdrew, and replaced with
other language. And the arbitration record does not reveal how the language in the final paragraph
came to refer to lists generally, rather than the Long End list specifically. But what is perfectly clear from
the above is a) the Employer not only understood that the parties were negotiating in Article 11 about
how to fill openings on the Banquet Server lists, but was in fact the moving party in that regard; and b)
the final paragraph – irrespective of which side advanced the language – plainly and unambiguously
includes movement from the Roll Call list to the Preferred list, as evidenced in the words alone, and
supported by what must be regarded as a deliberate decision to expand the applicability of the language
to server lists generally.
Accordingly, both the contract language alone, and the contract language as further clarified by
bargaining history demonstrate persuasively that Article 11.18 controls the filling of openings on the
Preferred list.
12
That finding does not end the inquiry, however, because even under Article 11.18, “When there is an
opening on a list, the most senior qualified employee on the next list will fill that opening.” Even under
Article 11.18, then, an employee eager to fill an opening on a list must be “qualified” to do so. The next
question is whether Levy breached the terms of Article 11.18 when it selected Ms. Telles over Ms.
Sanchez to fill the Preferred list opening.
I find that it did.
First, the record indicates that since Levy erroneously regarded Sanchez and Telles as having “equal”
seniority, it selected Telles because in its judgment, Telles was significantly more qualified than Sanchez
in the two areas Levy measured – English language skills and history of exemplary performance with
proven ability to deliver the Levy Difference. The Employer stated at arbitration that in deciding whom
to place in the openings, Levy narrowed the field to the three most senior finalists who were interested
in moving to the Preferred list. The two servers who were selected to fill the two openings, the
Employer asserted, were exceptional employees. They had superior past performance. Ms. Telles in
particular worked hard to make diners’ experience enjoyable, and she had won an award for her service.
In contrast, the Employer volunteered, Sanchez’s performance was “adequate.” In the candidate
interviews, Levy found that Telles handled questions better than Sanchez did. Telles was engaging and
thoughtful, while Sanchez’s responses were short and often non-responsive.
However, the requirement in Article 11.18 to fill the opening on the list with “the most senior qualified
employee on the next list” did not invite, indeed it prohibited, comparison of candidates to secure the
13
best possible choice.11 Article 11.18 contains what is familiarly known as a ‘minimum qualifications’
provision. Under this language, the “most senior qualified employee” means the most senior employee
who is qualified to do the job, period. Thus, for Levy to have legitimately bypassed Sanchez in favor of
Telles, it had to have found that Sanchez was not qualified to do the job as a server on the Preferred list,
period. Although in its response to the Union’s grievance Levy stated that Sanchez did not meet the
qualifications set forth in the posting, the fact that the Employer selected for the second opening the
person it deemed “better qualified” of two with “equal seniority” was, from the start, a misreading of
the contract and breach of the required process.
Second, since the record failed to establish that movement from one server list to the next was intended
to be a “promotion,” there was no contractual basis for Levy to exercise the right it reserved in Article 8
“to consider past performance when making hiring, transfer and promotional decisions.” Levy’s
obligation pursuant to Article 11.18 was simply to determine if Ms. Sanchez was qualified to serve on
the Preferred list.12 And though Levy in this instance adopted as qualifications/requirements for the
position both English language skills and past exemplary performance with proven ability to deliver the
“Levy Difference,” bargaining history shows that the parties had a much narrower expectation when
they discussed qualifications for filling openings on lists.
Recall, in Levy’s early bargaining proposal quoted above, the Employer indicated that the selection of a
server to fill an opening on a scheduling wheel would “be made in Classification Seniority Order,
provided the most senior Server on that scheduling wheel is qualified and has worked the required
11
So-called “relative” qualification provisions typically state that the Employer will choose the most qualified
applicant, and uses seniority as a tie-breaker.
12
The word “qualified” appears as a threshold requirement for several work opportunities set forth in Article 11.
None of these opportunities refers to satisfying criteria for promotion contained in Article 8.
14
minimum number of days for the higher scheduling wheel.” In the example, Levy wrote, “[I]f Server B
only worked ninety (90) days in the preceding calendar year and therefore does not qualify for Preferred
scheduling wheel, the Employer can select the next most senior Roll Call Server on the Roll Call
scheduling wheel to move on to the Preferred scheduling wheel.” This proposal, we know, was
withdrawn and replaced by simplified language and changes to the minimum number of shifts worked,
but the notion that the most senior qualified server on the next list would be moved to an available
opening endured. Ms. Moreland confirmed in her testimony that in negotiating the terms of Article 11,
the single context in which qualifications were discussed by the parties for the filling of openings on a
list was that of working a sufficient number of shifts.13
The Union’s having established here that Article 11.18 should have governed the selection of employees
for the two openings on the Preferred list, and having demonstrated that the Employer breached the
terms of Article 11.18 in the manner in which it filled those openings, the final question is whether the
Union waived or forfeited the right to a remedy for Ms. Sanchez by its failure to protest the wording of
the posted Banquet Server Preferred List opening.
It is worthy of note that this was the first time in the relationship between Levy and Local 26 that
openings were to be filled on the Preferred list. Also notable is that the Union immediately challenged
the 10-years’ experience as a server that Levy included as a requirement on its initial posting but it did
not immediately challenge the English qualification or the demonstrated ‘Levy Difference’ requirement.
Also noteworthy is that the posting did not characterize the filling of the openings as promotions and did
13
It is not necessary here to address whether or how, if at all, the example in the withdrawn proposal could have
worked. It suffices to note that the parties linked “qualified” to the satisfaction of a numerical shift obligation, and
not to the degree of excellence demonstrated in the job already being done.
15
not mention Article 8.14 And notable that the Union did promptly grieve what it regarded as a breach of
seniority upon learning that Ms. Sanchez was bypassed.
What, if anything, to make of these incidental observations? Just that as a first venture into filling two
agreed-upon openings on the Preferred list, nothing was perfectly clear. Levy apparently operated
under the belief that the openings on the Preferred list should be treated as promotional opportunities.
The Union apparently read the requirements on the posting with the belief that a server already
performing the job was ipso facto qualified to do the job; only the 10-year experience limitation stood
out starkly as a departure from the collective bargaining agreement. Once the grievance protesting Ms.
Sanchez’s non-selection was filed and the parties’ disagreement surfaced about which contract
provision applied to the selection, the contours of the dispute crystalized. Under the circumstances, I do
not regard the Union’s failure to challenge the English proficiency/Levy Difference qualification/
requirement in the posting itself prior to grieving the non-selection of Ms. Sanchez as a waiver or
forfeiture of its position at arbitration.
Remedy
In its brief the Union requested as a remedy that the Employer be ordered to place Ms. Sanchez on the
Preferred list. It is an appropriate request for the breach at hand. The question may arise as to
whether, by installing Ms. Sanchez on the Preferred list, Levy must remove Ms. Telles from the Preferred
list and return her (or someone else) to the Roll Call list. Inasmuch as the parties’ collective bargaining
agreement contemplates a list of Preferred servers, not to exceed ten, I am deliberately not directing in
14
As addressed, the posting might have given the impression that the transition was a “transfer,” as employees
were instructed to submit a “transfer request.” But the transferring and eligibility information on the form was
generic and did not apply to the facts at hand.
16
the remedy awarded below that Levy remove Ms. Telles from the Preferred list to make room for Ms.
Sanchez.
Award
Levy Restaurants violated the collective bargaining agreement when it did not fill an opening on
the Banquet Server Preferred list with Elvia Sanchez.
As a remedy, Levy Restaurants is directed to immediately place Ms. Sanchez on the Preferred
Server list.
Roberta Golick, Esq.
Arbitrator
Date: July 26, 2016
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