ARBITRATION
DECISION NO.:
582
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Rehabilitation & Corrections,
Adult Parole Authority
DATE OF
ARBITRATION:
July 25, 1995
DATE OF
DECISION:
August 8, 1995
GRIEVANT:
Billie E. Shafer
OCB GRIEVANCE
NO.:
28-02-(94-09-13)-0039-01-09
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Anne Light Hoke, Advocate
Michael E. Martin, Staff Representative
FOR THE
EMPLOYER:
Georgia M. Brokaw, Advocate, Office of Collective Bargaining
Colleen Wise, Labor Relations Specialist, OCB
KEY WORDS:
Arbitrability
Procedural Violations
Timelines for Filing Grievance
Waiver
ARTICLES:
Article 25 - Grievance Procedure
§25.01 - Process
§25.02 -
Grievance Steps
Article 43 - Duration
§43.01 - Duration
of Agreement
FACTS:
The grievant was
employed by the Ohio Department of Rehabilitation and Corrections at the Adult
Parole Authority in Cincinnati, Ohio as an Office Assistant 3. The grievant was removed effective August
19, 1994. The staff representative
assisted the grievant in preparing a grievance form over the removal. In an attempt to determine where to file the
grievance the staff representative called the Office of Collective Bargaining
(OCB). Relying on information he got
from the OCB receptionist, the staff representative mailed the grievance to
OCB. He was informed later by OCB that
the proper person to file the grievance with was the Labor Relations Officer
(LRO) at the Department of Rehabilitation and Corrections. Subsequently, the staff representative sent
the grievance to the LRO. On October
25, 1994 at the third-step meeting, the State procedurally objected to the
grievance on the grounds that the grievance was untimely filed.
STATE'S
POSITION:
First, the State
argued that the "Agency Head or designee" language of Article 25 is
clear and unambiguous. Second, the
State cited various panel decisions in which arbitrators have consistently
dismissed grievances as nonarbitrable because of timeliness deficiencies. Third, the Union was on notice from prior
awards that filing grievances with OCB was improper. Finally, the State contended that the staff representative should
have known not to rely on a verbal statement by a receptionist made over the
phone.
UNION'S
POSITION:
The Union first
argued that the term "designee" is ambiguous. The Union contended that the circumstances
of this case are distinguishable from the circumstances of an arbitration
opinion rendered by Arbitrator Bowers that the State relied on. In the Bowers decision an experienced Union
staff representative relied on the statement of a Union employee. In contrast, the Union staff representative
in the instant case was a new staff representative. Therefore, the Union argued that what he did was reasonable and
should be allowed.
The Union also
contended that the Employer waived its fights to argue arbitrability by
accepting and processing the grievance.
Furthermore, this grievance was only a few weeks late, not a year late
as in the case cited by the Employer.
ARBITRATOR'S
OPINION:
The Arbitrator
concluded that the parties negotiated a clear and unambiguous fixed limit for
the filing of discharge grievances, and they agreed that such grievances would
be filed with "the Agency Head or designee." The circumstances of this case were insufficient
to overcome the very clear time limit language. Furthermore, as Arbitrator Drotning held it in the cited case
"to find for the Union on the grounds of a clerical error would be an
injustice to both parties in their negotiations which resulted in the Contract
language..."
The Arbitrator
also concluded that the Union's waiver argument was not valid, because the
Department clearly raised its procedural objection at the third-step
meeting. Thereafter, the Department
discussed the case on its merits and that does not constitute a waiver.
AWARD:
The grievance was dismissed on
account of being untimely filed.
TEXT OF
THE OPINION:
VOLUNTARY
LABOR ARBITRATION TRIBUNAL
In the
Matter of Arbitration
Between
OHIO CIVIL
SERVICE
EMPLOYEES
ASSOCIATION
LOCAL 11,
AFSCME, AFL/CIO
and
OHIO
DEPARTMENT OF
REHABILITATION
&
CORRECTIONS
OPINION
AND AWARD
Anna DuVal
Smith, Arbitrator
Case No.
28-02-940913-0039-01-09
August 8,
1995
Billie E.
Shafer, Grievant
Arbitrability
Appearances
For the
Ohio Civil Service Employees Association:
Anne Light
Hoke, Advocate
Billie E.
Shafer, Grievant
Michael E.
Martin, Staff Representative
For the
Ohio Department of
Rehabilitation
and Corrections:
Georgia M.
Brokaw,
Office of
Collective Bargaining; Advocate
Colleen
Wise, Labor Relations Specialist
Office of
Collective Bargaining
Charles
Adams, Labor Relations Officer,
Ohio
Department of Rehabilitation & Corrections
Hearing
A hearing on this
matter was held at 9:00 a.m. on July 25, 1995 at the offices of the Ohio Civil
Service Employees Association in Columbus, Ohio before Anna DuVal Smith,
Arbitrator, who was mutually selected by the parties, pursuant to the
procedures of their collective bargaining agreement. The parties were given a full opportunity to present written
evidence and documentation, to examine and cross-examine witnesses, who were
sworn or affirmed, and to argue their respective positions. The parties mutually agreed to a bifurcated
hearing on the matter of arbitrability, with a second day of hearing on the
merits should the threshold question be decided in the affirmative. The oral hearing on arbitrability concluded
at 1:30 p.m., whereupon the record was closed.
The Employer requested a bench decision, but the Arbitrator denied the
request so that she might give full consideration to the record before
her. This opinion and award is based
solely on the record as described herein.
Stipulated
Issue
Is the above
captioned grievance arbitrable per the 1994-1997 collective bargaining
agreement?
Statement
of the Case
The Grievant was
employed by the Department (DRC) at the Adult Parole Authority in Cincinnati,
Ohio as an Office Assistant Ill. On
August 18, 1994, she was informed she was removed from State employment
effective August 19, 1994. With the
assistance of OCSEA Staff Representative Michael Martin, a grievance form was
prepared to protest this action. Martin
was a new staff representative, still undergoing training for that position at the
time, although he had received other Union training and had previously held
various Union offices when an employee of the Ohio Department of Mental Health.
Martin had
difficulty finding out with whom he should file the grievance. He was unable to get the answer in the
Union's regional office and got voice mail when he called the central office,
so he phoned the Office of Collective Bargaining (OCB). Relying on information he got from the
receptionist Martin mailed the grievance to Robert Thornton at OCB. The grievance was received at that office on
August 22 and ultimately found its way to Colleen Wise who was the OCB liaison
to DRC.
Wise testified
that she assumed there had already been a Step 3 hearing and so she awaited the
Step 3 response. When Martin was not
contacted to schedule the Step 3 hearing, he again called OCB and was referred
to Ms. Wise. She informed him that the
proper place to file the grievance was with Joe Shaver at DRC. Wise also testified she told him the time
lines for filing were not extended, but Martin does not recall this
remark. In any event, on September 12
Martin sent the grievance with a cover letter to Shaver. A third-step meeting was held on October 25,
1994, at which the Employer lodged a procedural objection on the grounds that
the grievance was untimely filed.
Holding this to be the case, the hearing officer, Charles Adams, denied
the grievance, but also addressed the merits in his written response. The case thereafter was appealed to the
fourth step and, finally, to arbitration where it presently resides for final
and binding decision.
Arguments
of the Parties
Argument of the Employer
The Employer
argues that the language of Article 25 is clear and unambiguous. The parties mutually agreed to the
importance of expeditious handling of discipline cases when they negotiated
advance-step filing. This language has
remained unchanged through four contracts, which fact testifies to its
clarity. Citing a variety of panel
decisions, the State points out that arbitrators have consistently dismissed
grievances as nonarbitrable because of timing deficiencies and this arbitrator
should do so now as a matter of equity and due respect for the negotiated
procedure.
The Employer
claims there is no ambiguity in "Agency Head or designee." The steward knew it was a DRC case and could
have called that department to find out who the designee was. What is more, he was present at negotiations
and had a copy of the contract with the signatures of both Thornton and Shaver
identifying their affiliation. The
Union was on notice from prior awards that filing grievances with OCB was
improper, says the Employer citing the Bowers decision in the Jones case (Ohio
Department of Youth Services v. OCSEA/AFSCME and Charles H. Jones, Grievant,
March 15, 1994). The Employer points to
Section 43.01's "no verbal statements" and contends the steward
should have known not to rely on a verbal statement by a receptionist over the
phone.
With respect to
the Union's contention that it had waived its right to argue arbitrability by
processing the grievance, the Employer points out that it raised the issue at
its first opportunity--the third-step meeting.
Moreover, the right to raise the issue is not waived even if it is not
brought up until the arbitration hearing, says the Employer who cites Elkouri
& Elkouri and the parties' case number 04-00-100791-01-07 (Nelson, October
5, 1993).
Finally, the
Employer offers the decision of Arbitrator Drotning in which the error of a
clerk did not constitute circumstances sufficient to overwhelm contract
language ("Arbitrability of 24," December 9, 1988).
The Employer
concludes that if the Arbitrator rules for the Union, she will be exceeding her
authority, and asks that the grievance be found not arbitrable as untimely.
Argument of the Union
The Union first
points out that the Employer has the burden of proof and argues that any doubt
should be resolved in favor of the grievant.
It says that the term "designee" is ambiguous. "Designee" is whoever the Employer
says it is, and in this case the Union relied on the statement of an employee
of OCB. This is to be distinguished
from the circumstances of the Bowers decision wherein an experienced Union
staffer relied on the statement of a Union employee. What the steward in the instant case did as a new steward was
reasonable and should be allowed.
The Union also
contends that the Employer waived its rights to argue arbitrability by
accepting and processing the grievance.
The way in which the Employer processed the case, such as its third-step
response and use of the fourth step, led the Union to believe it had waived
time lines. Article 25.01 is specific
in what does not constitute a waiver and the circumstances of this case are not
among those listed.
In any event,
this grievance was only a few weeks late, not a year late as in the case cited
by the Employer. Any flaw in the
grievance is simply a technicality and should not bar <PAGE NAME="6">hearing the merits of
the case because the entire purpose of the grievance procedure is to resolve
disagreements arising in the workplace.
The Union
concludes that because of the Employer waiver and a reasonable interpretation
of the term "designee," the case should be declared arbitrable and
heard on its merits.
Pertinent
Contract Provisions
ARTICLE 25 - GRIEVANCE PROCEDURE
25.01 -
Process
I. The receipt of a
grievance form or the numbering of a grievance does ot constitute a
waiver of a claim of a procedural defect.
25.02 -
Grievance Steps
Step 1 -
Immediate Supervisor
***
Suspension,
Discharge and Other Advance-Step Grievances
Certain issues
which by their nature cannot be settled at a preliminary step of the grievance
procedure or which would become moot due to the length of time necessary to
exhaust the grievance steps may by mutual agreement be filed at the appropriate
advance step where the action giving rise to the grievance was initiated. A grievance involving a suspension or a
discharge shall be initiated at Step Three of the grievance procedure within
fourteen (14) days of notification of such action.
Step 3 -
Agency Head or Designee
If the grievance
is still unresolved, a legible copy of the grievance form shall be presented by
the Union to the Agency Head or designee in writing....
ARTICLE 43 - DURATION
43.01 -
Duration of Agreement
....No verbal statements shall supersede any provisions of
this Agreement.
Opinion of
the Arbitrator
The entire point
of grievance procedures is the constructive resolution of workplace disputes
over the interpretation and application of the negotiated agreement. While 1, like many arbitrators, am inclined
to hear cases on their merits, I, like the parties, am bound by the terms of
their contract. In this case, the
parties negotiated a clear and unambiguous fixed time limit for the
filing of discharge grievances, and they agreed such grievances would be filed
with "the Agency Head or designee."
The circumstances that exist here are insufficient to overwhelm the very
clear time limit language. The
grievance was ultimately filed with the proper person, but it was several weeks
late due to it being initially sent to the wrong agency.
The Union argues
that the term "designee" is sufficiently ambiguous that the
Arbitrator can construe it to mean Mr. Thornton at OCB because the staff
representative relied on information obtained from an employee at that office. For me to do so would grant clerical
employees of one office authority to appoint Agency head designees. Nothing was offered to even suggest this
result was contemplated by the parties, and one cannot imagine either of the
parties intending such a result as it would create substantial ambiguity and
instability in grievance processing. As
Arbitrator Drotning put it in the case cited, "to find for the Union on
the grounds of a clerical error would be an injustice to both parties in their
negotiations which resulted in the Contract language....
In point of fact,
what occurred was a mistake. The staff
representative, recognizing the importance of timely filing of grievance, made
a good faith effort to beat the deadline.
But in his zeal to file on time, he did not wait to hear from his own
organization, nor did he call DRC (which was clearly named on the removal
notice), neither of which would have unduly delayed submission of the
grievance. He thus filed prematurely,
without reliable information. Although
his desire to assist members efficiently is laudable, such efforts must be
tempered by the necessity for care.
The Union's waiver
argument is also misplaced. The
Department clearly raised its procedural objection at the third-step meeting,
which was its first formal opportunity to do so. That it thereafter discussed the case on its merits does not
constitute a waiver. Indeed, discussion
of the merits was appropriate, as it prepared the parties for settlement or
arbitration should the arbitrability issue have been decided in favor of the
Union.
Award
The grievance is
dismissed as unarbitrable on account of being untimely filed.
Anna DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
August 8, 1995