Association of Flight Attendants (AFA)
The Union Representing
Blockhus written employment contract stated the following:
Employee Union (AFA) Statement of United Violations
TERMINATION APPEAL
LOI ISSUED: February 4, 2021 Letter of Investigation-Performance/Harassment
and Discrimination
MEETING: February 8, 2021. Cancelled due to Grievant seeking
Medical attention. Second meeting scheduled
for February 15, 2021. (Did not take place)
TERMINATION: February 26, 2021 (in absentia)
APPEAL DATE : August 9, 2021
VIOLATIONS: JCBA SECTION 23 A.1
JCBA SECTION 21.C
JCBA SECTION 29.A
FAMILY AND MEDICAL LEAVE ACT ACT 29USC ch.28
AFA Letter to United Airlines
Mr. Blockhus had 24 years of employment with United Airlines when he was abruptly terminated on March 3, 2021. His work history contains approximately 25 company and passenger commendations with no Performance or Attendance warnings and almost 800 hours of accumulated sick hours. United states “just cause “for his termination on the basis of threatening and harassing communications sent to Katherine Lense, a fellow employee, with whom he had a consensual romantic relationship until December 2020. Ms. Lense brought forward a HR complaint against Derek to which he subsequently received an LOI. Derek was fully prepared to answer and defend the allegations made against him at a meeting scheduled for February 8, 2021. However, when Derek arrived at the domicile, it was apparent that his mental and physical state were not conducive to participation in any sort of meeting or exchange. Derek was assisted by AFA EAP and became unavailable until April 5, 2021. This was verbally communicated by AFA to company representatives Kayla Howell and Monique Williams. The mutual understanding was that Derek’s LOI investigation would be paused until information was received regarding his medical status and his ability to attend a rescheduled meeting. Unfortunately, despite this agreement, the company chose to proceed with Derek’s termination without the due process of a contractually required meeting. (SECT. 21 JCBA). In the termination action, the company also violated THE FAMILY LEAVE ACT AND JCBA SECTIONS ; 23,29. The Association maintains that Derek’s termination is unjustified citing the violation of his contractual rights and violation of the Federal mandated Family Leave Act. We will present evidence of these violations as well as offer the company the opportunity to review documentation that rebut Ms. Lenses claims.
ARGUMENT EXHIBIT 1…JCBA CONTRACT VIOLATION:
Section 23 A.1 Investigations…
“When the company conducts an investigation Which may lead to disciplinary action or Discharge, the Flight Attendant shall be Entitled to Union representation, if reasonably available, and an
opportunity to present Information relevant to the investigation.”
Derek was not provided the opportunity to confront the allegations made against him and present rebuttal evidence and communicate his version of events. His right to an investigatory meeting was forfeited by the company and instead, they chose move forward with his termination, despite it being a contractual violation. This was done with the company’s knowledge of Derek being physically unavailable for a meeting, in person or on a TEAMS platform. He was essentially terminated in ABSENTIA
while on a protected , approved Family Medical Leave. In this action the company denied the grievant due process.
In the Supreme Court decision of Cleveland Board of Education v. Loudermill, 470 U.S. 532,546 (U.S.Supreme Court 1985) the opinion States: “The just -cause standard requires employers to observe due process. According to the U.S. Supreme Court , due process in the workplace means an employee must be given an opportunity to explain before the employer makes a final disciplinary decision.”
EXHIBIT 2…..JCBA CONTRACT VIOLATION:
Section 21 c. Voluntary Rehabilitation
“A flight attendant who has not been subject To a mandatory referral to EAP or has
not Had a verified confirmed positive drug test Result or a breath alcohol test
indicating an Alcohol concentration of 0.04 or greater, may Voluntarily self - refer to
United’s EAP for Assessment and/or rehabilitation and Treatment. Such flight
attendant shall be will Entitled to use any accumulated sick leave To the extent
needed to complete the Rehabilitation program.”
Derek was not afforded his contractual right to utilize his sick leave and complete a
voluntary rehabilitation program as provided in Section 21.C.
He had approximately 800 hours of accrued sick leave available which should have
been utilized to complete his treatment. His sick bank provided him with the ability
to use FMLA paid leave, for which he was approved for a block period of March 8,
2021 to April 5, 2021.
EXHIBIT 3……JCBA. CONTRACT VIOLATION:
Section 29 A.(f )…..Health and Welfare Plan and Eligibility:
COBRA
Leaves of Absence . The benefits for which a Flight Attendant is eligible during any period in which the Flight Attendant is on a leave of absence are set forth in Section 15 (Leaves of Absence), provided, however, that eligibility for life insurance, personal accident insurance, and long- term disability insurance may be limited or excluded in accordance with the applicable insurance policy (subject to any conversion
or continuation provisions of such insurance policy) . The Company shall use reasonable efforts to obtain insurance policies that do not include such limitations or exclusions . The Company will continue to extend family medical and dental coverage to a Flight Attendant on leave pending grievance on the same basis as for an active employee; and, if such Flight Attendant is discharged, she/he will be able to receive
medical and dental coverage for eighteen (18) months at her/his own expense under COBRA .
Derek’s medical care was discontinued and he was prematurely released from the medical facility upon his termination and no longer eligible for medical benefits. Additionally, he was unable to carry through with the implementation of an outpatient treatment plan. This has compromised his continued health and welfare and has burdened him with the financial responsibility of maintaining medical insurance.
Derek did not receive the required notifications from United that he was eligible to transition to coverage under the COBRA ACT. The Department of Labor intervened, directing United to extend the COBRA benefits to Derek.
The Association maintains that the company also violated Derek’s rights under the Federal Family and Medical Leave Act.
EXHIBIT 4 (1)…VIOLATION OF THE FAMILY AND MEDICAL LEAVE ACT;
29 USC Ch. 28 (2) ..FMLA APPROVAL LETTER From Title 29 - Labor. And
subsections therein: 29 USC 2601, 29USC 2611 (2)(4), USC 2617 (a)(1)(iii) USC 2617 (a)(1)(iii).
SECTION 5104. PROHIBITED ACTS; IT SHAL BE UNLAWFUL FOR ANY
EMPLOYER TO DISCHARGE, DISCIPLINE, OR IN ANY OTHER MANNER
DISCRIMINATE AGAINST ANY EMPLOYEE WHO-'‘ (1) TAKES LEAVE IN ACCORDANCE WTH THIS ACT; OR (2) HAS FILED ANY COMPLAINT OR INSTITUTED OR CAUSED TO INSTITUTED ANY PROCEEDING UNDER OR RELATED TO THIS ACT (including a proceeding that seeks enforcement of this Act), OR HAS TESTIFIED OR IS ABOUT TO TESTIFY IN ANY SUCH PROCEEDING.
Derek was approved for FMLA on February 16, 2021 for a block of time to include
the dates February 8, 2021 to April 5, 2021. This approval covers the cancelled
initial LOI meeting of February 8, 2021.
Termination of an employee while on an approved block of FMLA as stated above
constitutes an illegal act under the provision of the law.
EXHIBIT 5 ……..DIRECTIVE LETTER DATED February 12, 2021.
On February 12, 2021, Derek was issued a directive by Supervisor Kayla Howell instructing him to submit documentation to validate his absence from his initial 29 meeting of February 8, 2021. A Revised LOI was sent with the directive stating that he would be required to meet with Corporate Security on February 15, 2021. The company issued this Directive while fully aware of Derek’s admittance into a medical facility out of state , undergoing medical treatment. It was also known that Derek was not available by phone, could not receive mail and did not have access to a computer. Again, the understanding between AFA and local management was that Derek’s investigation was “paused” until he was physically available to attend a meeting.
EXHIBIT 6 …….
EMAIL FROM MONIQUE WILLIAMS DATED FEBRUARY 10,2021.
Jill,
As there is currently an open Corporate Security Investigation with Flight Attendant Derek Blockhus. The Company is expecting that supporting documentation be submitted due to the postponement of the meeting on Monday, February 8, 2021. We are also expecting that documentation be supplied to substantiate Flight Attendant Derek Blockhus’s inability to attend a meeting to date. If such documentation is not supplied to the Company by 1700 EST on Thursday, February 11,2021; then the
postponed meeting with Corporate Security will be rescheduled for Friday, February 12, 2021 (time TBD). With respect to the documentation supplied, the Company will recalculate the 30 day Contractual deadline due to the delay in the investigation. If you have any additional questions, please contact me.
Thanks,
Monique
In this document , Ms. Williams reiterated that the company would recalculate an extension of the investigation providing that documentation be submitted no later than February 11, 2021 at 5:00p.m. This deadline was met, the required documentation was submitted on February 11, 2021 at 3:12 p.m. However, there was no extension given to the investigation and the company proceeded with his termination.
EXHIBIT….7
FAX TRANSMITTAL TO UAL MEDICAL
The Association is unclear as to why the company proceeded with his
termination when he was in compliance with the submission of the requested
documentation and, also on an approved FML. It was the assumption that the
Company was equally concerned with the welfare of this flight attendant and
would extend considerations to ensure his medical condition remained the
priority.
Kayla Howell stated in the termination decision:
“ We have since been notified that you are unavailable to attend an
investigatory meeting until at least April 5, 2021. However, no expected
has been provided.”
Here, the company acknowledges the date April 5, 2021 as being the first date
of Derek’s availability. There was no issuance of another directive considering a
date to be scheduled after April 5, 20121. There was no intent on Derek’s part to
be evasive and uncooperative.
He had every intention of complying and attending a meeting when he was
discharged from the medical facility . The Association had every intention of
ensuring a meeting would be scheduled upon Derek’s release and return to Virginia.
EXHIBIT 9…EMAIL FROM D. MATALLANA TO FRANK HESTER DATED
FEBRUARY 27, 2021
This communication is a follow-up to a conversation between myself Supervisor Frank Hester when AFA was advised of Derek’s impending termination. It was a request to rescinded the termination and continue the conversation under the mutual agreement of the ” pause” to his investigation. I voiced my concerns and stated the obvious contractual violation. The company chose not to respond and proceed
regardless.
TERMINATION LETTER…
The content of the termination letter states numerous reasons for what the company believes warranted Derek’s termination. However, this determination was made without Derek’s ability to present substantial
evidence that proves contrary to the complainant's claims and the company’s understanding of events.
These two individuals engaged in an adult, consensual relationship. The personal issues that ensued did not take place on company premises or during the course of duty. In fact, Ms. Lense was furloughed October 1, 2020 and not an active employee when she filed a claim with HR against Derek.
Derek has evidence to support that the relationship with Ms. Lense was ongoing from November 2019 until December 2020 and did not end in the summer of 2020 as referenced by Ms. Lense. He is prepared to present such evidence that documents their communications to include videos, texts and phone logs.
This evidence confirms that they shared each other’s company and Derek was not informed by Ms. Lense that she felt threatened or harassed.
In the months of October and November of 2020, Derek Documented over 216 phone conversations in October and 253 for the month of November. In addition to the phone conversations there was contact between the couple via texts ,social media and phone apps.
These communications include Ms. Lense’s demands for gifts, an invitation to spend the night, and a request for him to identify as her boyfriend. Derek can also document the inaccuracies of the time stamps of text messages, as they do not correlate with his phone records.
At no time does Derek recall Ms. Lense requesting that Derek cease communications with her or convey that she felt harassed by his attempts at communications. Derek had been trying to communicate with Ms. Lense in an effort to resolve a matter that he envisioned could jeopardize both their jobs if not discussed amicably. To no avail, Ms. Lense would not engage with Derek on any level. In a desperate attempt for a resolution, Derek informed Ms. Lense via a phone message that he felt he had no
alternative but to file a complaint with the H.R. Department in an attempt to stop the circulation of damaging rumors. On January 25, 2021 Derek sent an e-mail to Vanessa Berio, HR, to report Ms. Lenses’ activities. When Ms.Lense learned of his intentions, she immediately filed her own complaint with HR alleging she was being harassed by Derek. Derek believes this action by Ms. Lense is reactive retaliatory, as it was submitted on January 25, 2021, approximately 30 minutes after she was made aware of his intent to file a complaint against her. The persistence in his attempts to speak with Ms. Lense and resolve the issue were reported to HR as harassing.
Although Derek contacted Vanessa Berio in HR, discussed his issue and forwarded an e-mail, he thereafter withdrew his complaint out of fear of retribution from Ms. Lense. The company is solely aware of one side of this story and has made presumptuous decisions without allowing Derek to present his truth. Again,
he was not extended the same contractual considerations as Ms. Lense, was not given a meeting and the opportunity to offer his version of events prior to the rendering of discipline. We ask the the company consider why Ms. Lense reported Derek’s alleged behavior to United Airlines when she was
no longer an active employee.
Additionally, the evidence she gave the company as TEXTS were exchanged between the couple in October of 2020. That date is 3 months prior to the date Ms. Lense Filed her complaint with HR in January 2021. Regretfully, a very private personal affair has been brought to the attention of management. In part, the conflicts between these individuals arose from tensions created by the stressors of furlough, finances,
jealousies and a failing marriage. These are personal issues that the company nor the Association is capable of resolving through complaints and discipline and is better directed to qualified professionals. There should not be a rush to judgement by an employer on an employees conduct outside the parameters of employment. Both the company and Union sponsored EAP Programs, as well as Professional Standards ,
have trained individuals to offer guidance to employees. We believe this matter was better directed to those representatives who are qualified to make proper referrals and recommendations.
CONCLUSION
The Association maintains that Derek’s termination should be rescinded on the
grounds that the company knowingly and willfully violated Sections 21,23 and 29 of
the JCBA and the Family Medical Leave Act of 1993.
Derek was treated unfairly and was not given the opportunity to defend the allegations made against him. The company was opportunistic in in their expeditious termination when Derek was most vulnerable. They demonstrated a disregard for his welfare by issuing directives that were unrealistic and prohibitive. Derek adamantly maintains the relationship between himself and Ms. Lense was consensual and ongoing.
Ms. Lense did not communicate to Derek that she felt harassed and wished to end their relationship. Derek is regretful that their emotions played out in this public display. He had tried to keep his personal life separate from the company, but out of the frustration he felt of not being able to protect his job, prompted him to pursue options. Derek took the initiative to become healthy, focus on his future and harbors no ill will towards Ms. Lense. He has suffered great personal and financial losses.
REMEDY
We respectfully request that Derek Blockhus immediately be reinstated with full back pay. We ask that his work history be updated to reflect no reference to this termination.
