The legal battles of self-dubbed “law and order candidate” Donald Trump shed light on the presidential candidate’s views on the legal system and the legal establishment. But with promises of restoring law and order, and claims that our country’s survival depends on same, what does Trump’s brand of justice truly look like? What does it mean for the American people?
To preview this proposed rebranding of the legal landscape, consider the cases arising out of Trump’s jurisdiction. During the course of employment, employees operate under the jurisdiction of their employers, and they are subject to the rules and policies enacted therein. Of course, in true American fashion, an employer’s authority is always subject to checks and balances.
It is in this setting—as an employer—that Trump’s exercise of law and order, upon review in arbitration, resulted in some very interesting and perhaps foretelling legal decisions.
‘You’re Fired’: You’re Actually Not Fired
The grievant in 1994 LA Supp. 106179 was employed by the Trump Plaza hotel and casino in Atlantic City as a Food Server. As such, the grievant’s duties included picking up orders, setting them up in the guest rooms, and bringing monies or signatures to the cashier for transaction completion.
On April 5, 1994, the grievant delivered “an order of one fruit platter and six sodas to two women in a room registered to Ms. Y.” During this delivery, one woman stated that the order was for two people—not three as noted in the check. The total amount billed was $25.18. According to the grievant’s testimony, “she was paid $28.00 in cash and left the room.”
The grievant brought this payment to the cashier and requested that he remove the $1.00 per person service charge from the check as there were only two women in the guest room. Both the grievant and the cashier testified that “there was nothing unusual about a Food Server making such a request or about a Cashier acceding to it without obtaining approval from a manager.” Upon voiding the service charge, the cashier handed $1.00 to the grievant.
Trump’s Room Service Assistant Manager, Mr. L, who observed the exchange from a few feet away, “immediately called” the Director of Food and Beverage Services. Unable to reach the director, Mr. L proceeded to a “pay phone for privacy” and telephoned his immediate supervisor, Ms. L. The supervisor gave Mr. L a “direct order not to talk to the Grievant about the matter” and instead instructed him to “prepare a report, compile all the relevant documents” so that she could “take care of it.”
The following day, Ms. L unsuccessfully made multiple attempts to reach Ms. Y, who “was in the beauty salon and then somewhere out gambling, and could not be reached.” Ms. Y also did not respond to messages left by Ms. L requesting that she return the calls. During this time, Ms. L also discussed the matter with the Labor Relations office, which provided four questions to be asked of Ms. Y.
On April 6, a Trump representative was “successful in meeting with Ms. Y.” The guest stated that she gave the grievant “$32.00 or so” for the order, which was for two people. She also confirmed that none of the money tendered was returned. When asked whether she “complain[ed] about being overcharged,” Ms. Y answered in the negative.
Following this interview, Trump and its Labor Relations office attempted to again contact the guest. Ms. Y, however, had already checked out at that point, and “it was not possible to obtain a forwarding address.” The grievant was then fired on grounds of dishonesty as she allegedly kept the cancelled $1.00 service charge, and the union grieved.
Arbitrator Mollie H. Bowers sustained the grievance, and ordered Trump Plaza to rescind and remove from the grievant’s record the disciplinary suspension and final warning.
Additionally, Bowers concluded the “Grievant shall be made whole for all lost wages (minus any interim earnings and/or entitlement payments) and gratuities customarily declared. She shall also be made whole for all benefits including, health and welfare, pension, severance, vacation, holidays, and reimbursement for benefits under the Family Medical Leave Act as applicable to her current circumstances.”
Bowers found that Trump failed to prove just cause for the discipline, since it failed to conduct “a full and fair investigation of the facts and circumstances” surrounding the incident. Ms. L based the disciplinary decision on reports filed by Mr. L, who did not even speak with the grievant after speculating that she wrongfully kept the refund, Bowers noted.
As supervisor, the arbitrator continued, Ms. L failed to question Mr. L about “the basis for this supposition.” Trump’s Labor Relations office also failed to provide Ms. L with questions that were “sufficiently probative to determine the truth of the matter,” Bowers said. Specifically, the questions failed to address whether Ms. Y told the grievant to keep the refund as a tip.
The grievant testified—and Ms. L confirmed—that she informed Ms. L on April 6 that the guest told her to keep the refund. This information “constitutes an affirmative defense,” Bowers stated, and yet “no change was made” to the questions asked of Ms. Y, or to Trump’s investigatory strategy. According to Bowers, the investigation was not “full and fair,” especially considering that Trump failed to obtain the requisite information while the guest was still on the property.
Lastly, the arbitrator noted that Trump “recognized flaws in this case when it rescinded the Grievant’s discharge and also limited its liability by making the intervening time a disciplinary suspension.” Bowers accordingly reversed the penalty imposed by Trump.
‘Law and Order’ Reversed: Rules ‘So Rigid’
Trump suffered a similar loss in 1991 LA Supp. 106758, after an arbitrator reinstated a discharged employee and concluded that Trump Plaza violated the applicable collective-bargaining contract.
On May 2, 1991, a banquet server employed by Trump was covering a buffet luncheon for a group of doctors. The Director of Catering stated that he asked the grievant to go to the storeroom and return with a Diet 7UP as a female doctor was unable to find this beverage at the table. When the director witnessed the grievant go to the buffet table instead, and return with a Diet Coke, he intervened and again instructed the grievant to retrieve a Diet 7UP from the storeroom.
The next day, on May 3, the grievant reported for work to cover a breakfast buffet for the same group of guests. The Banquet Manager in charge of overseeing this function stated that he noticed the grievant missing from the ballroom. Upon his return, according to the manager, the grievant asserted he had gone to the restroom and responded with vulgarity to questions regarding his whereabouts.
The Director of Catering subsequently fired the grievant, relying “entirely” on the manager’s story and noting that he “did not need to hear anyone else’s story because he [had] complete trust and confidence in [the manager’s] ability and truthfulness.” The union grieved.
The union claimed the manager had a personal issue with the grievant following the grievant’s prior charge of harassment and discrimination against the manager. As for the May 2 incident, it asserted the manager made a “big fuss” while the female doctor accepted the Diet Coke and thanked the grievant for his service. It also claimed, with respect to the May 3 incident, the grievant did not respond with vulgarity.
Arbitrator Thomas J. DiLauro found that Trump produced no evidence indicating the grievant was even advised of the rules he had allegedly violated. DiLauro also rejected Trump’s argument that the grievant received a previous written warning for similar misconduct. “An examination of the written warning refers to the grievant leaving the work area to go to another work area and give direct orders to other employees,” DiLauro said, concluding Trump attempted to “bootstrap the charge into [grievant] leaving his assigned work area without supervisory permission”—a charge that did not actually appear on the written warning.
Acknowledging the personal conflicts between the manager and the grievant, DiLauro focused on evidence supporting a common practice of employees covering for others when they had to leave their post to “attend to calls of nature or for other emergency reasons.” Despite Trump’s denial of this practice, the arbitrator pointed out that, since the banquet employees set-up the buffet prior to the supervisor’s arrival, “it would seem that they would just as easily have an arrangement to cover for each other when they had to leave and no supervisor was present.”
Reversing Trump’s firing of the grievant, DiLauro concluded, “Every organization must have rules and regulations in order to operate in the most efficient and economic manner possible. But rules and regulations cannot be so rigid as not to provide for situations,” such as this.
Trump Loses Bigly, Data Shows
How do Trump’s losses in exercising law and order stack up against other “jurisdictions”? A review of arbitrations covering the legal issues addressed in the Trump awards provide insight.
According to data obtained from Bloomberg BNA’s Arbitration Award Navigator, of the 559 arbitration awards involving dishonesty—the issue resolved in the 1994 arbitration—employers prevailed in 57.9% of cases, individuals prevailed in 0.2% of cases, unions prevailed in 24.2% of cases, and 17.7% of cases involved mixed prevailing parties.
A study of 553 awards concerning insubordination—the issue resolved in the 1991 case—shows that employers prevailed in 54.1% of cases, individuals prevailed in 0.9% of cases, unions prevailed in 22.2% of cases, and 22.8% of cases involved mixed prevailing parties.
Similarly, a study of 486 awards concerning post abandonment—also addressed in the 1991 arbitration—shows that employers prevailed in 53.3% of cases, individuals prevailed in 0.6% of cases, unions prevailed in 24.3% of cases, and 21.8% of cases involved mixed prevailing parties.
Huge Consequences? Huge
Donald Trump, unlike the majority of employers evidenced in the data above, has not had a successful run of exercising law and order to date, at least in the labor arbitration context. Trump may be the “candidate of law and order,” but the question is—is he the winning candidate, or the losing one?
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.
Notify me when updates are available (No standing order will be created).
Put me on standing order
Notify me when new releases are available (no standing order will be created)