Gordon Rees Scully Mansukhani Las Vegas Managing Partner Robert E. Schumacher prevailed in a four-day class arbitration defending a national owner/operator of a well-known, upscale Italian restaurant chain (“Client”) in a labor dispute involving the Culinary and Bartenders Union (“Union”). The Union claimed the firm's Client violated various provisions of the Parties’ Collective Bargaining Agreement (“CBA”) when it closed one of its restaurants in a Las Vegas strip hotel/casino for re-branding, interviewed for the new positions and hired employees at the converted location.
The restaurant owner/operator shut down a location in the hotel/casino for the purpose of converting it to a more upscale establishment. The Union argued that, pursuant to the CBA, the Client was obligated to hire up to 70% of the Union members who were laid off as a result of the restaurant closure for positions at the new establishment.
The firm’s Client rented convention space and held a two-week, open job fair for the positions being offered at the new restaurant. All Union members who were laid off were invited to the job fair. Notices to the public of the job fair were published in local media. The interview consisted of a screening process, an in-person interview, and then a second interview if the score received by the applicant met a certain numeric minimum.
As an accommodation to the Union, the Client arranged for the Union representatives and members to review the training materials and actual interview questions and preferred answers in advance of the interviews. The internal applicants were given preferential treatment by interviewing before any external (non-union) applicants and skipping a screening process that was mandatory for external applicants. The Union applicants were guaranteed participation in both interviews--regardless of their score on the first interview.
Ultimately, 56 union members applied for the 143 available positions at the new restaurant. Twenty members were offered positions. The Union filed a grievance and requested arbitration pursuant to the CBA contending that qualified Union applicants were wrongfully rejected and inconsistencies in the interview scoring process resulted in discrimination towards older, Union applicants. The Union sought back and front pay and benefits for approximately 55 member applicants who were not hired for the new positions along with significant federal statutory fines and penalties associated with violations of the CBA.
Schumacher demonstrated that the Client did not violate the Parties’ CBA as the restaurateur granted certain advantages to Union candidates and otherwise conducted the interview process consistently for all job applicants. The Client was transparent with the Union throughout the entire interview process. Schumacher proved that the Client hired every qualified Union applicant and had no choice but to hire external applicants because there were not enough qualified Union candidates for the job openings.
The Union’s allegation of age discrimination was rejected as Schumacher presented evidence that revealed the job applications did not seek the age or date of birth of applicants and no questions relating to age were part of the interview process. Statistical evidence correlating the ages of the internal applicants who were not hired with the age of the non-union applicants who were hired was introduced by the Union. This claim was rejected by the arbitrator.
After four days of arbitration and post-arbitration briefing, a decision was issued rejecting all of the Union’s claims in favor of Gordon Rees’ client. The Union did not appeal the ruling.