Season's Grievances: It’s the Most Arbitral Time of The Year



The holiday season is a special time within the workplace—from Santa Claus to the arbitration clause, and everything in between. Here at Bloomberg BNA, we understand that both employers and employees are probably overwhelmed with gift guides this time of year, so we’ve created something a little different. Introducing: the BBNA Holiday Grievance Guide!

A Grievance Story

Speaking of gifts, the exchange of same is not entirely uncommon at the office during this celebratory season. But at what point does holiday gift-giving go from a merry sentiment to a mandatory sentence?

In Emery Industries, 89 LA 603, the employer had a history of gifting its employees Christmas gift baskets “consist[ing] primarily of a generous assortment of foods making up the ingredients for a holiday meal.” After nearly 55 years of delivering baskets full of “the ingredients of a Christmas dinner,” the company announced its decision to substitute these for $30 Kroger gift certificates, and the union grieved.

Arbitrator James C. Duff first noted that, after 55 years, it was unsurprising employees “were disappointed by the Company's decision to change the gift made available from a bountiful array of quality food to a certificate capable of being redeemed for $30 worth of groceries at the stores of a grocery chain.” Duff further acknowledged that, based on the testimony “concerning what was made available in the past via the food baskets or packages,” the gift certificate amount fell short of “buying a comparable holiday feast.”

Despite this, Duff concluded the company never committed to future Christmas dinner gifting, as there was no vehicle through which it bound itself to continue the tradition, and “making an annual gift available to its employees” did not amount to such. Accordingly, Duff denied the grievance—a decision that conformed to Arbitration Award Navigator data indicating employers often landed on the “nice list” in similar cases involving gifts.


It's Beginning to Look a Lot Like Arbitration

A holiday party can similarly play a role in one’s placement on either list this season. To avoid turning a workplace gathering into a workplace grievance, consider PepsiAmericas, 120 LA 1793.

In this award, the grievant was terminated after attending the company’s pre-Christmas Christmas party. Like most, this one started out as “a festive occasion where food and beverages were served, music was played, and where some of those present danced.” According to a female employee, the grievant—whom she barely knew—appeared at her table and “put his hands on her back and rubbed it up and down.” “[G]et your hands off me,” she said. After several more remarks, the grievant finally stopped.

The grievant denied this, arguing that he never touched the female employee’s back. “Instead, he testified to having danced immediately behind [her] ... and to have put his leg up on her chair.” The grievant also claimed “to only have touched her on the shoulder when saying goodbye while also thanking her for ‘being a good sport.’” Following the female employee’s retelling of this nightmare before Christmas, however, the employer determined an offense had occurred.

Arbitrator William C. Heekin noted that the employee’s account was “both internally plausible and corroborated in substantial part by several witnesses; none of whom had a prior relationship of any kind with the Grievant.” There was no basis for finding that these witnesses were motivated in any way to provide false testimonies, Heekin said. In contrast, aside from his girlfriend’s undetailed testimony, the grievant’s account was largely uncorroborated, as well as “wholly implausible” and “suggestive of a contrivance.”

Heekin denied the grievance, holding grievant’s “improper” conduct at the Christmas party “adversely affected his ‘relationship with his fellow employee(s)’” and violated company rules. Like Emery Industries, this, too, wasn’t an unusual conclusion, as employers found themselves on the “nice list” more often than not in cases involving misconduct according to data.


‘Tis the Season to Be Grievin’

Grievances arising out of gift exchanges and themed parties only scratch the surface in terms of holiday-related arbitration issues. There are many other areas of concern, including holiday work and pay. For an extended outlook beyond the mini grievance guide provided herein, be sure to visit Bloomberg BNA’s Arbitration Award Navigator. Happy holidays, and may all your grievances be all right!

Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform.  Click here to request a free trial.