Int'l Longshore & Warehouse Union v. Grand Wailea Resort Hotel & Spa
| Decision Date | 10 September 2013 |
| Docket Number | Civ. No. 12-00708 ACK-RLP |
| Parties | INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 142, Petitioner, v. GRAND WAILEA RESORT HOTEL & SPA, Respondent. GRAND WAILEA RESORT HOTEL & SPA, Counterclaimant, v. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 142, Counter Defendant. |
| Court | U.S. District Court — District of Hawaii |
On December 31, 2012, Petitioner International Longshore and Warehouse Union, Local 142 ("Petitioner," "ILWU," or "Union") filed a Petition to Vacate Arbitration Award ("Petition") that had been issued in favor of Respondent Grand Wailea Resort Hotel & Spa ("Respondent" or "Grand Wailea"). ECFNo. 1. The arbitration award had been issued by Judge Riki May Amano ("Arbitrator") on October 3, 2012 in the arbitration entitled "In the Matter of the Arbitration Between ILWU Local 142, AFL-CIO on behalf of Brian Santore, Union v. Grand Wailea Resort and Spa, Employer" ("Arbitration Award"). Id. at 2, ¶ 2. Petitioner also filed a Concise Statement of Facts on December 31, 2012 in support of its Petition ("Petitioner's CSF"). ECF No. 4.
On April 15, 2013, Petitioner filed a Motion for Summary Judgment regarding its Petition to vacate the Arbitration Award ("MSJ"). ECF No. 20. In its MSJ, Petitioner included a new Concise Statement of Facts ("Petitioner's MSJ CSF") in addition to referencing the Concise Statement of Facts filed with the Petition on December 31, 2012. Id. On August 9, 2013, Respondent filed its Opposition to Petitioner's MSJ and a Counter-Motion for Summary Judgment to Confirm the Arbitration Award ("Counter-MSJ").1 ECF No. 23. Respondent also filed a Concise Statement of Facts in Support of its Counter-MSJ. ECF No. 24. On August 16, 2013, Petitioner filed its Reply toRespondent's Opposition and Counter-MSJ. ECF No. 26. On August 23, 2013, Respondent filed its Reply in support of its Counter-MSJ. ECF No. 27. The Court held a hearing regarding Petitioner's MSJ and Respondent's Counter-MSJ on August 30, 2013. ECF No. 28.
Grand Wailea operates a resort hotel and spa located in Wailea, Hawai'i. Arbitration Award at 3, Petitioner's CSF Ex. A, ECF No. 4; Petitioner's MSJ at 2, ¶ 2, ECF No. 20. As part of its services, the hotel operates a Grand Dining Room that serves breakfast to approximately 500 guests on a daily basis. Id. Servers are assigned to tables in the Grand Dining Room. Id. In order to service large groups of guests, tables assigned to different servers may be combined to seat the group. Id. The tip is split equally among the number of servers who serve the group. Id. The employees at Grand Wailea are aware of the practice of sharing tips. Id.
With respect to combined tables, because only one server may input an order and complete the transaction at theregister, the server who rings up the order is responsible for "tipping out" the other servers and bussers. Id. at 4. The server who inputs the order ("tipping server") "tips out" the other server ("tipped out server") by determining the amount of the tips to be shared among the servers and noting the amount of tips on a form called the "Daily Record of Tip Outs to Other Employees" ("Tip Out Sheet"). The tipping server writes the name of the tipped out server and the amount of the tip on the Tip Out Sheet. Id. The tipped out server signs the Tip Out Sheet and inserts his or her employee number to acknowledge that the Sheet accurately reflects his or her share of the tip. Id. Employees at Grand Wailea understand that a server may not add his or her name and a tip amount to another server's Tip Out Sheet without the tipping server's knowledge and approval. Id. The standard practice is for the tipping server to give a copy of the guest bills to the tipped out employee for his or her records. Id.
Brian Santore and Debbie Hammer were both servers at Grand Wailea during the time of the incident giving rise to this litigation. Arbitration Award at 4, Petitioner's CSF Ex. A, ECF No. 4. On January 12, 2011, Santore and Hammer combined tables from their respective sections to service two large groups of customers. Id. Hammer was the tipping server because she processed the orders at the register. Id. Hammer testified that, near the end of her shift, she printed copies of the guestbills for the two shared tables and gave them to Santore. Id. She also wrote the tip out amount she was giving Santore on one of the two bills. Id. At the end of her shift, she filled out her Tip Out Sheet to reflect that Santore should receive a tip of $46.30. Id. at 5. While the parties dispute the time when Santore signed Hammer's Tip Out Sheet,3 the Arbitrator apparently found that Santore had signed the Tip Out Sheet in the signature box acknowledging that the $46.30 was the correct tip amount. Id. at 5-6, Respondent's CSF Ex. 5, ECF No. 24.
On January 13, 2011, Santore and Hammer did not share tables. Id. Hammer had reported $40.00 on her Tip Out Sheet to reflect two $20.00 tips to two bussers. Id. at 6. Santore testified that he wrote in a tip amount of $50.00 on Hammer's Tip Out Sheet and signed for the tip. Id. Santore did not obtain Hammer's permission to adjust her Tip Out Sheet. Id. at 7. The Accounting Department crossed out Hammer's $40.00 tip out total and entered a figure of $90.00 based on Santore's actions. Id. at 7. As a result, Santore received $50.00 from Hammer's paycheck. Id. at 10.
In late January or early February 2011, Hammer discovered that $50.00 was missing from her paycheck for the payperiod covering January 12 and 13, 2011. Id. at 7. Hammer was injured and did not return to work until the end of February, 2011. Id. After returning to work, Hammer reported the discrepancy to the Accounting Department. Id. The Accounting Department provided Hammer with a copy of her paperwork. After evaluating her records, Hammer believed that Santore had taken a $50.00 tip from her on January 13, 2011. Id.
Hammer then reported Santore's theft to Human Resources on March 3, 2011 and met with Leah Belmonte, the Assistant Director of Human Resources.4 Id. at 7. After a manager called Hammer regarding her complaint, Hammer submitted a written statement to her supervisor. Id. at 8. On March 7, 2011, Hammer met with Belmonte about her statement and complaint. Id. After Hammer met with Belmonte, Hammer also met with Cliff Caesar, the Director of Human Resources. Id.
Caesar commenced an investigation on March 8, 2011. Id. The Arbitrator specifically found that the investigation conducted was "objective and fair." Id. at 16. As part of theinvestigation, Caesar spoke with Hammer and another server at the Grand Wailea. Id. at 9. On March 8, 2011, Caesar met with Santore and ILWU agent Steven West. Id. During the March 8 meeting, Santore acknowledged writing his name and the $50.00 tip on Hammer's Tip Out Sheet. Id. Santore also acknowledged that it would be wrong for a server to fill out another employee's Tip Out Sheet without that employee's knowledge and approval. Id.
After conducting the interviews and reviewing the records, Caesar concluded that Santore had impermissibly taken $50.00 from Hammer. Id. at 11. Additionally, Santore had previously been disciplined by the Grand Wailea for grabbing blueberries from the kitchen with his bare hands in violation of kitchen and food safety policies. Petitioner's CSF Ex. E, Ex. 19, ECF No. 4. When questioned about his actions, Santore became aggressive and argumentative, resulting in a four-day suspension. Arbitration Award at 16, Petitioner's CSF Ex. A, ECF No. 4; Petitioner's CSF Ex. E, Ex. 19, ECF No. 4. As a result of the investigation, Grand Wailea terminated Santore's employment on March 15, 2011.5 Respondent's CSF at 6, ¶ 20, ECF No. 24,Petitioner's MSJ CSF at 2, ¶ 4, ECF No. 20. Grand Wailea has consistently taken a hard stand on theft by terminating the employment of past employees who committed theft. Arbitration Award at 16, Petitioner's CSF Ex. A, ECF No. 4.
Santore is a member of the ILWU. Id. at 2. The ILWU and Grand Wailea had entered into a collective bargaining agreement that was effective from April 1, 2008 through March 31, 2013 ("CBA"). Petitioner's CSF Ex. B, ECF No. 4. ILWU challenged the discharge of Santore, resulting in an arbitration after the completion of the other stages of the grievance process. Id. After six days of hearings, the Arbitrator issued her decision on October 3, 2012. Respondent's CSF at 6-7, ¶ 22, ECF No. 24; Arbitration Award at 17, Petitioner's CSF Ex. A, ECF No. 4.
The parties stipulated that the Arbitrator would decide the following issues:
In determining whether or not Grand Wailea terminated Santore for just cause, the Arbitrator examined Section 26.a of the CBA, which states in relevant part as follows:
In conjunction with Section 26.a, the Arbitrator also examined Grand Wailea's Team Member Handbook, which prohibits, inter alia, the following acts:
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