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Private Labor Arbitration Award, June 2017

Partner Matt Wakefield won a successful arbitration award on behalf of a major Southern California resort. The resort had discharged a restaurant server for theft when management found that he added an 18% service charge to two guest checks, after the guests signed their checks and drew a line through the space where a gratuity could be added. The union representing the server grieved his discharge, arguing that the resort had not proven that the server engaged in theft. The union argued that the guests had authorized the server to add the 18% service charge. The resort demonstrated that the server’s testimony was not credible and that his unauthorized addition of the 18% service charge amounted to theft. On June 30, 2017, the arbitrator issued an award in which he agreed with the resort and denied the union’s grievance. He found that the server knew that what he was doing was wrong, but chose instead to take “a calculated risk and lost.” Accordingly, the arbitrator upheld the server’s discharge.