ARBITRATION
DECISION NO.:
344
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Transportation
DATE OF
ARBITRATION:
May 1, 1991
DATE OF
DECISION:
May 10, 1991
GRIEVANT:
Misty Tademy
OCB
GRIEVANCE NO.:
31-13-(91-02-25)-0014-01-09
ARBITRATOR:
Anna Smith
FOR THE
UNION:
FOR THE
EMPLOYER:
KEY WORDS:
Arbitrability
Employee’s Duty to Know
Contractual
Rights
Timeliness
Probationary Status
ARTICLES:
Article 25-Grievance Procedure
§25.02-Grievance
Steps
§25.03-Arbitration
Procedures
FACTS:
The grievant was
hired by the Department of Transportation on October 22, 1990. Due to prior state service, her probationary
period should have ended on December 22, 1990.
She was maintained on probationary status and removed on February 14,
1991 as a probationary employee.
UNION'S
POSITION:
The grievance is
timely and, therefore, arbitrable. The
grievant, while improperly retained on probationary status, was not harmed
until she was removed. Thus her
removal, not the arguable end of her probationary period, was the trigger for
the article 25 time limits. Secondly,
the grievant was not informed by the employer of her contractual right to a
shortened probationary period due to prior state service. For that reason, the grievant had no
knowledge of a contract violation until her removal.
EMPLOYER’S
POSITION:
The grievance is
not timely filed and not arbitrable.
The thrust of this grievance is the grievant's improper retention in
probationary status. The appropriate
time for filing the grievance is, therefore, when she believed her probationary
period ended on December 22, 1990, not her removal on February 14, 1991. Additionally, the employer is under no duty
to inform employees of their contractual rights generally, or that the grievant
may be entitled to a shortened probationary period (which the employer does not
agree the grievant is entitled to).
ARBITRATOR'S
OPINION:
The arbitrator
agreed with the employer's arguments.
The triggering event for grieving improper retention on probationary
status is when the grievant believes the probationary period to be over. The harm is the employer's failure to grant
full contractual rights, which occurs when an employee is not taken off
probation. That the harm was manifested
in this case by her removal is irrelevant.
The employer
argued that it has no duty to inform employees of their contractual
rights. The contract places no such
duty on the employer. Additionally, the
employer cannot be obligated to inform an employee of a right, a shortened
probation period, that it does not believe the employee has obtained. The grievant had sufficient time to learn of
her contractual rights as she had eight (8) months total seniority.
AWARD:
The grievance was
found to be untimely and, as such, not arbitrable.
TEXT OF
THE OPINION:
In the Matter of Arbitration
Between
O.C.S.E.A. LOCAL 11,
A.F.S.C.M.E., AFL-CIO
and
STATE OF OHIO,
DEPARTMENT OF TRANSPORTATION
OPINION
Anna D.
Smith, Arbitrator
Case
31-13-(02-25-91)-14-01-09
Misty
Tademy, Grievant
Arbitrability
The following is
the Arbitrator's reasoning in the award rendered May 1, 1991 at Columbus, Ohio
in the cited case:
The Grievant's
removal is arbitrable only if she was not on probationary status on February
15. Whether she was on probationary
status is arbitrable only if the issue was timely raised under §25.02 of the
Collective Bargaining Agreement:
“All grievances must be presented not later than ten (10)
working days from the date the grievant became or reasonably should have become
aware of the occurrence giving rise to the grievance not to exceed a total of
thirty (30) days after the event.”
The event giving
rise to the grievance occurred when Ms. Tademy continued to be carried as
probationary after sixty days of ODOT employment. Having been hired on October 22, December 22 is when her 30-day
clock started ticking. She had until
January 21, 1991 to grieve her probationary status. The issue, however, was not raised until after she was removed on
February 14, 1991.
The Union raises
two arguments with some merit. The
first is that the Grievant was not harmed until after she was removed. The Arbitrator disagrees. If the Grievant was inappropriately kept on
probationary status, she was harmed by not receiving full protection and rights
of seniority status.
The second claim
is that the Grievant was not oriented by her employer and was therefore unaware
of her rights under the collective bargaining agreement. The Arbitrator searched the Contract for
language requiring the Employer to train employees on Contractual rights. While language on training does exist (in
§3.07, 3.08 and 37.02), no such requirement was found, and the Arbitrator is
prohibited by §25.03 from creating one.
The Union goes on to state that the Employer did not inform the Grievant
that she was entitled to a shortened probation because of her prior
service. However, the Employer does not
here appear to accept the Union's view of the Grievant's qualification for the
shortened probation. One cannot expect
the Employer to tell an employee she is entitled to something the Employer
believes she is not entitled to.
Had the Employer acted in bad faith to keep the Grievant in the
dark--perhaps by concealing the provision for a truncated probationary
period--a different result would have obtained. However, the Grievant knew she was in trouble on January 15 when
she wrote the statement of Joint Exhibit 12, six days prior to the lapse of her
grievance window. She also had eight
months of service with the State, adequate time to learn the benefits of
consulting her Union steward. She also
had adequate time to discover the issue of her probationary status and raise it
in a timely fashion. The Arbitrator has
no reason here to hold the Employer accountable for the Grievant's lapse.
For the foregoing
reasons, this issue was held to be untimely raised and therefore not
arbitrable.
Anna D. Smith, Ph.D.
Arbitrator
Date: May 10, 1991