ARBITRATION
DECISION NO.:
426
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Bureau of Employment Services
DATE OF
ARBITRATION:
February 11, 1992
DATE OF
DECISION:
March 30, 1992
GRIEVANT:
Leonard Groboske
Rae Jacobozzi
Jessie McClain
OCB
GRIEVANCE NO.:
11-02-(91-08-02)-0103-01-09
11-02-(91-08-16)-0104-01-09
11-02-(91-08-29)-0107-01-09
ARBITRATOR:
Anna Smith
FOR THE
UNION:
John Porter
Advocate
Tony Degirolamo
Second Chair
FOR THE
EMPLOYER:
Robert Thornton
Advocate
Michael Duco
Second Chair
KEY WORDS:
Re-Employment
Seniority
Intermittent
ARTICLES:
Article 16-Seniority
§16.02-Continuous Service
Article 17-Promotions and Transfers
§17.03-Vacancy
Article 18-Layoffs
§18.01-Layoffs
§18.08-Recall
§18.09-Re-Employment
FACTS:
The three grievants were hired by
the Ohio Bureau of Employment Services (OBES) in the 1970's and laid-off in
1982. Subsequently, each accepted
intermittent positions with OBES within one year of lay-off. The grievants were ultimately appointed to
permanent, full-time positions with OBES, but not until more than one year
after their layoff. The State counted
the three grievant's seniority as being broken by the fact that they were not
called back into a full time position until more than one year after their
layoff.
One of the grievants previously had
filed a 1986 grievance on the same issue which was granted at Step 3; however
the decision by management was later changed and as a result his seniority was
revised to reflect a break in service.
When the grievants were originally
hired and laid off, they were not covered under a collective bargaining
agreement. The first agreement,
effective July 1, 1986, contained a seniority provision, Article 16. A side letter of understanding on seniority
was negotiated in 1987 by Marianne Steger and Sybil Griffin. In the 1989 contract, to cover employees
hired prior to 1989, a Memorandum of Understanding was negotiated which
provided that an employee laid-off and recalled or re-employed within one year
from the date of layoff, prior to 1986, has not experienced a break in service.
UNION'S
POSITION:
The agency's rehiring of a laid-off
employee to an intermittent position within one year of the layoff constitutes
re-employment within the meaning of the Page 136 Memorandum of Understanding. Further, this mutually agreed upon meaning
is established both by Ms. Steger's testimony and the prior granting of
grievant Groboske's grievance, which constitutes a binding, settlement between
the parties. The term
"re-employment" is not restricted to the definition contained in
Article 18.09 of the contract.
Moreover, this case is distinguishable from the case cited by the State
in support of their position, FOP v. ODNR. In that case an arbitrator determined that the same word used in
two separate sections of the same contract article should be defined in the
same way. In this grievance the term
"re-employment" is contained in two different articles, not different
sections of the same article.
Therefore, when the same word is used in two different articles of a
contract it may have different meanings.
Also, the fact that the State failed to present rebuttal testimony as to
the intended meaning of the term "re-employment" further supports the
position that "re-employment" can have different meanings in
different sections of the contract.
The Union requests that the
Arbitrator 1) grant the grievances, 2) restore the grievants, original
seniority dates to reflect continuous, unbroken service, 3) correct seniority
dates that would have prevented the grievants' layoffs, 4) reinstate the grievants
to their original positions, 5) make the grievants whole including losses
suffered, and 6) permit bargaining unit employees who should have been
displaced to retain their current positions.
EMPLOYER'S
POSITION:
The Memorandum of Understanding on
page 136 of the contract deals with laid-off employees who were reinstated
pursuant to the Administrative Rules of recall and employment rights which
governed employment prior to collective.
Since the grievants were not reinstated to positions which they were
entitled, they were neither recalled nor re-employed; therefore, they lose
their seniority because they suffered a break in service.
The State defined
"re-employment" as the extension of recall rights to reinstatement to
a position in the same classification as that from which the employee was
laid-off but in a different agency.
Since an intermittent position is by definition not a permanent position
it cannot be a vacancy as defined by Article 17.03 which limits the term to
permanent full-time or part-time employees; therefore employees cannot be
recalled to or re-employed in intermittent positions. Further, the Union failed to prove that there was a mutual
agreement to the definition of "re-employment" despite the proffered
testimony of Ms. Steger. Under the
decision in FOP v. ODNR, words should be given the same meaning
throughout the contract, absent specific language to the contrary. Moreover, the Arbitrator's decision in OCSEA
v. OBES wherein the Arbitrator held that an
employer's granting of a grievance does not constitute a binding settlement,
mandates that the employer not be held to its earlier decision. Consequently, the State seeks that the
grievances be denied in their entirety.
ARBITRATOR'S
OPINION:
The common sense meaning of
"re-employed" means to place back in service, whether to a different
position or not. Absent compelling
evidence indicating that the parties intended a different meaning, the common
sense meaning of the word must be accepted; the State failed to provide such
evidence. Evidence provided by
stipulation and by the Union establishes that the term "re-employed"
was not intended to be limited to rehire to a position in the same
classification, but rather to rehire in any capacity. The correctness of this construction is further evidenced
by the fact that the only relevant difference the effect of pre-1986 and
post-1986 contract lay-offs is the period in which being re-employed or
recalled would preserve continuous service.
Thus, the meaning of "re-employed" means hired again by any
state agency.
AWARD:
The grievances are granted in their
entireties except that those bargaining unit employees who should have been
bumped, but were not, due to incorrect calculations of the grievants,
seniority, may not retain their original positions.
TEXT
OF THE OPINION:
In the Matter of Arbitration
Between
OHIO CIVIL SERVICE EMPLOYEES
ASSOCIATION, LOCAL 11,
A.F.S.C.M.E., AFL/CIO
and
STATE OF OHIO
BUREAU OF EMPLOYMENT SERVICES
OPINION and AWARD
Anna
D. Smith, Arbitrator
Case
11-02-910802-0103-01-09
Rae
Jacobozzi, Grievant
Case
11-02-910816-0104-01-09
Leonard
Groboske, Grievant
Case
11-02-910829-0107-01-09
Jessie
McClain, Grievant
Seniority
Appearances
For the Union:
John
Porter; Assistant Director of Arbitration,
OCSEA
Local 11, AFSCME, AFL-CIO; Advocate
Tony
Degirolamo; OCSEA Local 11, AFSCME, AFL-CIO; Second Chair
Marianne
Steger; Assistant to Executive Director,
OCSEA
Local 11, AFSCME, AFL-CIO; Witness
Rae
Jacobozzi; Grievant
Jessie
McClain; Grievant
Lillian
Riggs; Observer
For the State of Ohio:
Robert
Thornton; Office of Collective Bargaining; Advocate
Michael
Duco; Office of Collective Bargaining; Second Chair
Brent
Fatzinger; Labor Relations Officer,
Ohio
Bureau of Employment Services; Observer
Janice
Viau; Labor Relations Manager; Ohio Bureau of
Employment
Services; Observer
Hearing
Pursuant
to the procedures of the parties a hearing was held at 8:00 a.m. on February
11, 1992, at the offices of the Ohio Civil Service Employees Association, Local
11 AFSCME, AFL-CIO, Columbus, Ohio before Anna D. Smith, Arbitrator. The parties were given a full opportunity to
present written evidence and documentation, and to examine and cross-examine
witnesses, who were sworn. The case was
argued by brief and closed upon their receipt by the Arbitrator on February 27,
1992, but reopened by agreement of the parties to receive a union reply
brief. The record was again closed on
March 6, 1992. This opinion and award
is based solely upon the record as described herein.
Issue
By
agreement of the parties, the issue to be decided by the Arbitrator is:
Did the Ohio Bureau of Employment Services
(OBES)
violate the terms of the Agreement when
calculating
the seniority dates of the grievants?
If so, what shall the remedy be?
In
the event this question is answered in the negative, the Union asks the
Arbitrator to answer the following, to which the State objects:
Did OBES and the State of Ohio violate
the Contract by granting Leonard Groboske's
1986 grievance at Step 3 and then changing his
seniority date?
If so, what should the remedy be?
Joint Exhibits and Stipulated Facts
Joint
Exhibits
1. 1989-91
Collective Bargaining Agreement
2. Statement
of stipulated issue and facts
3. Groboske
grievance trail
4. Jacobozzi
grievance trail
5. McClain
grievance trail
6. Side
letter between parties, May 26, 1987, and meeting notes
7. Arbitration
decision of Grievance No. G87-0733
8. Section
123:1-41-17 O.A.C.
Stipulated
Facts
1. These
grievances are properly before the arbitrator.
2. Grievant
Groboske was employed by OBES as a full-time permanent Employment Services
Interviewer on 4-5-76.
3. Grievant
Groboske was certified in the above classification on 10-21-76.
4. Grievant
Groboske was laid off from that classification on 1-14-82.
5. Grievant
Groboske was employed by OBES as an intermittent Claims Assistant on 8-16-82.
6. Grievant
Groboske was employed by OBES as a full-time permanent Claims Assistant on
3-20-83.
7. Grievant
Jacobozzi was employed by OBES as an intermittent Claims Assistant on 2-21-78.
8. Grievant
Jacobozzi was employed by OBES as a full-time temporary Clerk on 8-26-78.
9. Grievant
Jacobozzi was employed by OBES as a full-time permanent Clerk on 11-4-78.
10. Grievant
Jacobozzi was certified in the above classification on 12-11-78.
11. Grievant
Jacobozzi was promoted to Employment Services Interviewer on 3-22-81.
12. Grievant
Jacobozzi was laid off from that classification on 1-14-82.
13. Grievant
Jacobozzi was employed by OBES as an intermittent Claims Assistant on 9-7-82.
14. Grievant
Jacobozzi was employed by OBES as a full-time permanent Employment Services
Interviewer on 5-29-83.
15. Grievant
McClain was employed by OBES as a full-time permanent Employment Services
Technician on 9-1-70.
16. Grievant
McClain was certified in the above classification on 3-5-71.
17. Grievant
McClain was promoted to Employment Services Specialist on 12-3-73.
18. Grievant
McClain was reclassified to Employment Services Interviewer on 1-4-76.
19. Grievant
McClain was promoted to Employment Services Counselor on 8-27-78.
20. Grievant
McClain was laid off from that classification on 5-22-82.
21. Grievant
McClain was employed by OBES as an intermittent Claims Assistant on 8-25-82.
22. Grievant
McClain was employed by OBES as a full-time permanent Employment Services
Interviewer on 6-12-83.
23. Although
temporary, interim, intermittent and seasonal appointment types in Ohio Civil
Service are defined for the purposes of the Agreement in Article Seven of the
Agreement, employees occupying such positions are not in the OCSEA bargaining
unit.
24. The
Agreement was not in effect in 1982, when the layoff of the grievants occurred.
25. Upon
refusal of a laid off employee to accept an intermittent position the Employer
has not considered this refusal a cancellation of recall or re-employment
rights as outlined in the Agreement.
26. As
intermittents the grievants accrued sick leave, personal leave and PERS
retirement benefits.
27. Grievant
Groboske timely filed a grievance over the exact issue which is the subject of
this grievance in 1987. This previously
filed grievance was granted at Step 3 of the grievance procedure and grievant
Groboske was credited with no break in service at that time. His seniority date was later changed to
reflect a break in seniority in 1982.
Grievant Groboske was bumped to a lower position in 1991, after this
grievance was filed.
28. The
Page 136 Memorandum of Understanding of the Contract is written to apply only
to employees hired prior to 7-1-89. It
gives those employees additional rights.
29. Section
16.02(1-5) (page 28) applies to all employees.
30. When
seniority rights conflict between page 136 and page 28 (§16.02(1-5)), then page
136 controls for employees hired prior to 7-1-89.
31. It is
the Union's position that a laid off employee's re-employment as an
intermittent does not break an employee's seniority date as referred to in
§16.02 A-E.
Background
Significant
facts of the grievants' employment histories with the State were stipulated by
the parties and are set forth in detail above.
Briefly, the three grievants were hired by the Ohio Bureau of Employment
Services (OBES) in the 1970s. In 1982
they were laid off. Within a year, each
took intermittent positions with the OBES.
After working these intermittent positions for several months, each was
appointed to a full-time permanent position with the Bureau. In all three cases, the period of time
between layoff and full-time permanent employment exceeded one year. Believing a break in service to have
occurred, the State credited each grievant with the seniority date of the day
on which s/he was employed in the intermittent position. The grievants subsequently protested the
State's calculation of their seniority, claiming that since they took the
intermittent positions within one year of being laid off, no service break
occurred, and that they should therefore have their original seniority dates
restored. After the grievances were
filed and as a result of carrying the later seniority dates, the three were
displaced when 1991 layoffs occurred.
Being unresolved at lower steps of the grievance procedure, the
grievances came to arbitration for final and binding decision.
It should also be noted that
Grievant Groboske had previously had a 1986 grievance on the same facts and
issue resolved in his favor at Step 3, but this decision was later revoked with
his seniority date once again being changed to reflect a break in service. Should the 1991 grievances be denied, the
Union asks that the Arbitrator uphold the Step 3 resolution of the 1986
Groboske grievance.
Bargaining
History
When
the grievants were originally hired and in 1982 when laid off, their conditions
of employment were not governed by a collective bargaining agreement. The first contract between the parties was
negotiated to be effective July 1, 1986.
This contract contained a seniority provision (Article 16). To clarify its meaning, a sideletter of
understanding was negotiated in 1987 by Marianne Steger (for the Union) and
Sybil Griffin (for the State), and signed by Russell Murray (for the Union) and
Edward Seidler (for the State). One of
its provisions is directly applicable:
6. An
employee who is laid off and is reemployed, i.e. not recalled by any state
agency, but hired by any state agency, within 18 months (prior to the
contract's implementation within one year) has not experienced a break in
service. This employee would continue
to earn seniority while on layoff.
(Joint Ex. 6)
Elements of this sideletter were thereafter
incorporated into the 1986-89 Contract, most notably the following:
Article
16 - Seniority
§16.02
- Continuous Service
5. An employee who is laid off and is
re-employed, i.e. not recalled by any State Agency, but is hired by any State
Agency, within eighteen (18) months has not experienced a break in
service. This employee would continue
to earn seniority and service credits while on layoff.
MEMORANDUM
OF UNDERSTANDING ON SENIORITY FOR EMPLOYEES HIRED PRIOR
TO
JULY 1, 1989
The parties agree to the following
interpretations and application of the seniority language for employees hired
prior to July 1, 1989. This
interpretation does not apply to employees hired after that date.
7. An employee who was laid off and recalled,
or re-employed prior to July 1, 1986, within one (1) year of lay off has not
experienced a break in service and shall continue to earn seniority and service
credits while on layoff.
(Joint Ex. 1)
Arguments of the Parties
Argument
of the Union
The
Union's position is that an agency's rehiring of a laid off employee to an
intermittent position within one year of the layoff constitutes re-employment
as contemplated by the Agreement's page 136 Memorandum of Understanding and the May
26, 1987 sideletter.
In support of this position the
Union offers the testimony of Marianne Steger, who negotiated the sideletter
and the 1989-91 Agreement's seniority provision and page 136 Memorandum of
Understanding. Ms. Steger stated that
her understanding was that "re-employment" meant "not recalled
by any State agency (within one year) but hired by any State agency within one
year." She also stated that she
believed this to be the State negotiator's understanding as well. The Union points out that the State called
no witnesses to rebut Ms. Steger's testimony and urges the Arbitrator to
conclude that they were not called because they cannot rebut Ms. Steger.
A second support offered by the
Union is the resolution of Grievant Groboske's 1986 grievance at Step 3. It argues that granting of the grievance
should estop the State from changing Grievant Groboske's seniority date. Further, granting of the grievance by
Management is tantamount to settlement inasmuch as the Union's lack of appeal
to the next step signifies agreement with the terms granted. Such settlements should not be disturbed in
the interest of good labor-management relations, argues the Union. Moreover, mutual agreement is evidence of
intended meaning that carries special weight, the Union claims, citing Elkouri
and Elkouri, and Bornstein and Gosline.
Regarding Management's position that
re-employment is defined in Article 18.09 by incorporation of the Ohio
Administrative Code, the Union argues that nothing prevents different
meanings for the same word in different sections of the Agreement. The union believes the case at bar differs
from the F.O.P. case cited by the State in that the word at issue is not
contained in different sections of the same article, but in two different
articles which were negotiated by different individuals. Different meanings of
"re-employment" is plausible since Articles 18 and 16 were negotiated
by different individuals. Moreover, the
Union negotiator of the 1987 sideletter and the 1989-91 seniority language was
not even present when the 1986 Agreement was negotiated, and thus did not form
her perception of Article 16's use of "re-employment" based on the
1986 negotiations. Additionally, the
Union reminds the Arbitrator that there was no Management testimony that the
word was intended to mean the same thing in the various contexts.
The Union asks that the Arbitrator
uphold its position, grant the grievances, and restore the Grievants' original
seniority dates to reflect continuous, unbroken service. It further requests that if their correct
seniority dates would have prevented them from being displaced, they be
reinstated to their former positions and made whole for losses suffered as a
result of being improperly bumped, including pay and benefits, and losses from
being improperly moved out of their assigned areas. Additionally, it requests that bargaining unit employees who
should have been displaced be allowed to remain in their original
positions. Finally, it asks that the
Arbitrator retain jurisdiction pending determination of the effects of the
award.
Argument
of the State
Management's
position is that the Parties mutually understood "re-employment" to
mean an extension of an employee's recall rights to agencies beyond the agency
from which s/he was laid off. It states
that definitions in the Agreement and sideletter arose from their definitions
in the Ohio Revised Code and Ohio Administrative Code, which formed the basis
of many articles in the first negotiated agreement between the Parties. It points to §18.01 on layoffs that refers
to ORC Chapter 124 and OAC Chapter 123, to §18.08 on recall that sets the
recall right period, and §18.09 on re-employment that refers to OAC
123:1-41-17. The latter itself limits
re-employment to the same classification from which layoff or displacement
occurred (A), limits the jurisdictional recall right to one year (B), and
initiates recall for re-employment by an existing vacancy (C)(1). Therefore, reasons the State, in both the
Agreement and the Code, "recall" is the right of a laid off employee
to reinstatement to a position in the same classification as that from which
the employee is laid off within the same agency; and "re-employment"
is the extension of recall rights to reinstatement to a position in the same
classification as that from which the employee is laid off but in different
agencies.
Both recall and re-employment,
asserts the State, are triggered by vacancy, which is defined by §17.03 of the
Agreement as an opening in a permanent full-time or permanent
part-time position within a specified bargaining unit covered by this Agreement
which the Agency determines to fill."
Since an intermittent position is by definition
not a permanent position, it cannot be a vacancy as defined by §17.03, and
employees cannot be recalled or re-employed to it. Thus, the grievants were not recalled or re-employed, as the
Union claims, but merely offered intermittent employment while on layoff
status.
Regarding the Union's case, the
State claims first that the argument is inconsistent. If the grievants had been re-employed as claimed, there would
have been no need to convert them to permanent employees as the stipulated
facts show was done. In fact, the State
says, the grievants were newly hired as intermittents and later as permanent
employees.
The State also contends that the
Union has failed to prove that there was mutual agreement to a definition of
"re-employment" in the 1987 sideletter different from that in Article
18. Ms. Steger's opinion does not prove
mutual understanding.
Furthermore, the State goes on,
under the rule that contracts should be interpreted in their entirety, words
should be given the same meaning throughout.
The Arbitrator is urged to consider the decision of Arbitrator Graham in
FOP v. ODNR (Shoyer et al.) wherein the arbitrator argued that
"absent specific language to the contrary it should be expected that
identical language would be interpreted identically."
Regarding the issue of Mr.
Groboske's previous grievance, the State's position is that if the instant
grievances are denied, the method of calculating seniority for all will have
been settled. To then hold the Employer
to its earlier erroneous calculation of Grievant Groboske's seniority would
create a special seniority for him.
This is not only a disservice to other bargaining unit employees, but
also impermissible under the Contract which prohibits the Arbitrator from
adding to the terms of the Agreement.
The State refers the Arbitrator to the OCSEA v. OBES (Domenic et al.)
decision wherein Arbitrator Rivera held an employer's granting of a grievance
is a unilateral action, not a mutually-agreed to and therefore binding
settlement.
In conclusion, the State asserts
that it has no burden to prove its position on the definition of
"re-employment." Rather, it
is for the Union to establish a mutual agreement to grant continuous service to
those employees who accept intermittent employment while laid off. The Employer believes such an agreement does
not exist and that the grievants' seniority dates are correctly
calculated. It therefore asks that the
grievance be denied in its entirety. It
further requests that the second issue of Mr. Groboske's prior grievance be
dismissed as not grievable, since neither the Employer nor the Arbitrator has
the authority to grant specially calculated seniority to any employee.
Opinion of the Arbitrator
The
grievances before the Arbitrator for resolution require a decision as to
whether employees who accept certain kinds of State employment during lay-off
are entitled to accrue seniority and service credit while laid off. More specifically, the question is whether
employment in an intermittent position with the Agency may serve to maintain an
employee's continuous service. The
answer to this question depends on whether accepting employment as an
intermittent constitutes "re-employment" as used in Article 16 and
the page 136 Memorandum of Understanding, for these provisions specify that
re-employed laid-off individuals do not suffer a break in service provided the
re-employment occurs within a certain time frame. The issue thus turns on the meaning of the word
"re-employed."
Since the page 136 Memorandum
controls for these grievants by virtue of their employment dates, the analysis
must begin with the relevant paragraph of that Memorandum:
"7.
An employee who was laid off and
recalled, or re-employed prior to July 1, 1986, within one (1) year of lay off
has not experienced a break in service and shall continue to earn seniority and
service credits while on layoff.
(Joint Ex. 1)
In its common usage, "re-employed"
means simply "put to work again" or "hired back" such that
a separated individual rehired by the original employer, whether to the same or
to a different position, is re-employed.
On the face of it, then, the grievants should be entitled to their
original hire dates because although they were not recalled, they were put to
work again by the same employer (the State) within a year of being laid
off. Without good indication that the
Parties intended a different meaning, the common sense of the word must be
accepted.
The State does, in fact, claim that
a special meaning was intended, but offers no evidence arguing instead that the
special meaning is self-evident. The thrust of its argument is that paragraph
7 deals with laid off employees who were reinstated pursuant to the
Administrative Rules of recall and re-employment rights that governed
employment prior to collective bargaining.
Since the grievants were not reinstated to positions to which they were
entitled (permanent full-time, same classification), they were neither recalled
nor re-employed and therefore lose their original hire date. This argument fails because of the history
of the Memorandum of Understanding, its relationship to Article 16, and a
clarifying clause.
The evidence produced by stipulation
and the Union establishes that the origin of the Memorandum and the examples of
uninterrupted continuous service given in Article 16.02 is the sideletter
negotiated by the Parties in 1987. This
document states that there is no break in service for an employee who is
"laid off and is re-employed, i.e., not recalled by any state agency, but
hired by any state agency, within 18 months (prior to the [1986] contract's
implementation within one year) . . ."
This sideletter gives a more expansive meaning to
"re-employment" than the one urged by the State, by virtue of its
clarification clause: "i.e., . .
.hired by any state agency." This
position is given further credence by the unrebutted testimony of the Union's
witness and her notes of meetings with the State' s negotiator, which establish
that they did not use "re-employment" to mean rehired only to a
position in the same classification with a different agency, but any
re-employment: "hired (but not recalled) into a new job" (emphasis added), "hired <PAGE NAME="14">by other agency"
(Joint Ex. 6). Moreover, Ms. Steger
testified that the term "hired" was the State negotiator's term.
To put it another way, it seems to
me that if the Parties had meant "re-employed pursuant to rights
established by Administrative Rule 123:1-41-17 or Article 18.09" or
"re-employed to a permanent full-time or permanent part-time position,"
they would have said so. No doubt the
State now believes this was unnecessary because "re-employment" has
clear meaning given by Article 18. But
if this were the case, how account for the clarification, "hired by any
state agency" that appears both in Article 16.02 and the sideletter that
is the source of the contractual language?
It must be assumed that the phrase was used for a reason, not merely as
some sort of excess baggage, and that the reason is to underscore a
non-exclusive meaning of "re-employed."
It is true that the clarifying
phrase is missing from the paragraph of the Memorandum that applies to the
grievants and that this omission might have given rise to misunderstanding by
those who read the Memorandum in relation to Article 18 on layoffs, rather than
to Article 16 and the source document on seniority, or by those who are
unfamiliar with the bargaining history.
Alternatively, the omission could signify that the Parties agreed that
when the 1989 contract took effect, employees hired prior to July 1, 1989,
would lose the seniority granted to them by the sideletter. Not even the State suggests this is so
(holding to a restrictive meaning of "re-employed" in the source
document as well as the Contract itself), and the Union's witness described
only changes
that affected employees hired after 1989.
Moreover, it is apparent that the only relevant difference between the
effect of pre- and post-1986-contract layoffs on seniority that is specified by
the sideletter is the period in which being re-employed or recalled would
preserve continuous service, not the definition of "re-employed." Therefore, when provisions of the 1987
sideletter were incorporated into the 1989 contract with the intent to preserve
their meaning, the definition of "re-employed" for the purpose of
calculating seniority remained the same for all. The "re-employed" of the Memorandum must be interpreted
to mean the same as the "re-employed" of the 1987 sideletter and of
Article 16.02.
This brings me back to the meaning
of "re-employed" in the context of the sideletter and Article 16.02,
both of which contain "i.e., not recalled by any state agency, but hired
by any state agency." Clearly,
"re-employed" can have the restrictive meaning urged by the State
only if the ordinary sense of the word and this clause are disregarded. There simply is not compelling enough reason
to do so. "Re-employed"
therefore means "hired again by any state agency" in Article 16 and
the page 136 Memorandum of Understanding.
Applying this meaning of
"re-employed" to the grievants' situations, all three were hired back
by a state agency within one year of layoff.
They were therefore re-employed within the meaning of the page 136
Memorandum of Understanding. The
grievances and requested remedy are granted, with the exception that bargaining
unit
employees who should have been bumped, but were not due to incorrect
calculations of the grievants' seniority, may not be permitted to remain in
their original positions. To grant this
portion of the requested remedy would require the Parties to violate their own
Agreement.
Award
The
grievance is granted. The Ohio Bureau
of Employment Services violated the terms of the Agreement when calculating the
seniority dates of the grievants. The
seniority dates for the grievants are to be corrected to reflect no break in
service while laid off. Seniority
credit will also reflect time worked as an intermittent after expiration of
recall rights, to be calculated in accordance with Memorandum of Understanding,
page 136 of the Agreement. If the
correct seniority date would have prevented a grievant from being bumped, the
grievant will be reinstated to the former position and made whole for pay and
benefits lost as a result of being improperly bumped. The Arbitrator retains jurisdiction for 30 days to resolve any
differences arising in the implementation of this award.
Anna D. Smith, Ph.D.
Arbitrator
March 30, 1992
Shaker Heights, Ohio