ARBITRATION
DECISION NO.:
584
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Ohio Department of Rehabilitation & Corrections
DATE OF
ARBITRATION:
June 30, 1995
DATE OF
DECISION:
August 18, 1995
GRIEVANT:
William Montgomery
OCB
GRIEVANCE NO.:
27-21-(94-09-26)-1085-01-03
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Michael Hill, Advocate
Brenda Goheen, Second Chair
FOR THE
EMPLOYER:
Colleen Wise, Advocate
Georgia Brokaw, Second Chair
KEY WORDS:
Timeliness of filing Grievance
Registration
Arbitrability
Reliance
ARTICLES:
Article 1 - Recognition
§1.01 - Exclusive
Representation
Article 24 - Discipline
Article 25 - Grievance Procedure
§25.01 - Process
§25.02 -
Grievance Steps
FACTS:
On or about April
11, 1994, the grievant delivered his letter of resignation to the personnel
office of the Orient Corrections Institution.
The letter of resignation stated that the resignation was to take effect
"immediately." The grievant
subsequently applied for disability leave because of stress, rather than resign
his position. After Management received
grievant's application for disability leave, Management requested that the
grievant appear and meet with the warden.
The grievant agreed to attend the meeting but failed to attend either
the originally scheduled meeting or the re-scheduled meeting with the
warden. Subsequently, Management
accepted grievant's resignation on April 20, 1994 and confirmed the acceptance
with grievant. (The record is unclear
as to whether the confirmation took place by phone, letter, or both).
On September 26,
1994 a grievance was filed alleging that Article 24 of the Contract had been
violated. The grievance was denied on
the grounds that Grievant had no standing to file a grievance since he was a
non-employee at the time the grievance was filed and that the grievance was not
timely filed.
EMPLOYER'S
POSITION:
Management
contends that the grievance is not arbitrable because it was not timely filed
pursuant to Contract Article 25.02.
Additionally, Management argued that the grievant lacked standing to
file a grievance pursuant to the Contract because he voluntarily resigned in
April 1994, he was not an employee on September 26, 1994 and therefore was not
covered by the terms of the Contract.
On the merits,
Management contended that the grievant was not constructively discharged as his
resignation was completely voluntary and not coerced by Management. Management argued that the grievant's mental
capacity, anxiety and depression should not shield him from the consequences of
his actions, and therefore the resignation was effective.
UNION'S
POSITION:
The Union made
two arguments that the resignation was not effective. First, Management was aware that grievant rescinded his
resignation when the grievant applied for disability leave. Therefore, the resignation Management
accepted was not effective. Second, the
grievant relied on inaccurate information conveyed by Management as to the
proper forum for resolving the disability and resignation issues. Reliance on the misinformation led to the
delay in filing the grievance and the grievant should therefore be permitted a
hearing.
ARBITRATOR’S
OPINION:
Whether this case
is arbitrable depends on when the grievant became aware or should have become
aware of the event giving rise to the grievance. The time for filing this grievance began running on or about
April 27, 1994 when the grievant spoke with Management regarding his employment
status. The language of Contract
Article 25 clearly outlines the fixed time limits associated with filing a
grievance. The time limit must be
upheld except in cases of waiver or unusual circumstances. The detrimental reliance argument of the
grievant is not sufficiently supported by the record to constitute an
"unusual circumstance" and is insufficient to overcome the clear
language of the Contract. Therefore,
the grievance filed on September 26, 1994 was not filed in a timely manner and
is not arbitrable.
AWARD:
The grievance was
dismissed.
TEXT OF
THE OPINION:
<PAGE NAME="1">
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.
27-21-940926-1085-01-03
August 18,
1995
William
Montgomery, Grievant
Arbitrability
Appearances
For the
Ohio Civil Service Employees Association:
Michael
Hill, Advocate
Brenda
Goheen, Second Chair
William
Montgomery, Grievant
Pam
Montgomery, Witness
Pat Carty,
Chief Steward
For the
Ohio Department of Rehabilitation
and
Corrections:
Colleen
Wise,
Office of
Collective Bargaining; Advocate
Georgia
Brokaw,
Office of
Collective Bargaining; Second Chair
Bill
Blaney, Labor Relations Officer,
Orient
Correctional Institution
Kim Doyle,
Personal Officer,
Orient
Correctional Institution; Witness
Hearing
A hearing on this
matter was held at 9:00 a.m. on June 30, 1995 at the Office of Collective
Bargaining 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
Employer submitted a question of arbitrability and the parties jointly
submitted an issue on the merits, which are set forth below. 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 Employer's motion for a
bench decision on arbitrability was denied in order that the parties might file
written closing statements as requested by the Union. The oral hearing was concluded at 11:00 a.m. on June 30. Written closing statements were timely filed
on July 14 and received on July 18, whereupon the record was closed. This opinion and award is based solely on
the record as described herein.
Issues
Is the grievance
timely and therefore arbitrable?
Did William
Montgomery tender a written resignation in a voluntary quit, or was it a
constructive discharge, and, if so, what shall the remedy be?
Pertinent
Contract Provisions
ARTICLE I - RECOGNITION
1.01 -
Exclusive Representation
The Employer
recognizes the Union as the sole and exclusive bargaining representative in all
matters establishing and pertaining to wages, hours, and other terms and
conditions of employment for all full and part-time employees (excluding
temporary, interim, intermittent and seasonal employees, except bargaining unit
employees serving in an interim position) in the classifications included in
certifications of the State Employment Relations Board (SERB).
ARTICLE 25 - GRIEVANCE PROCEDURE
25.01 -
Process
A. A grievance is defined as any difference,
complaint or dispute between the Employer and the Union or any employee
regarding the application, meaning or interpretation of this Agreement.
25.02 -
Grievance Steps
Step 1 -
Immediate Supervisor
... All
grievances must be presented not later than ten (10) working days from the date
the evant 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. If being on approved paid
leave prevents a grievant from having knowledge of an occurrence, then the time
lines shall be extended by the number of days the employee was on such leave
except that in no case will the extension exceed sixty (60) days after the
event....
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.
Statement
of the Case
The Grievant,
William Montgomery, was employed by the State of Ohio in November 1978. At the time of his alleged resignation, he
was a Correctional Supervisor I (Sergeant) at the Orient Correctional
Institution. In April 1994, while he
was clinically depressed, the Grievant wrote a letter to the warden resigning
his position effective "immediately" (Joint Ex. 2). On or about April 11, his wife delivered the
letter to the personnel office at the institution where it was left on the
personnel officer's (Kim Doyle) desk during her absence. She also called Ms. Doyle at home and
discussed the situation with her. As a
result of this conversation, Mr. and Mrs. Montgomery decided he would apply for
stress disability leave rather than resign.
In another phone conversation, Mrs. Montgomery told Ms. Doyle their decision
and was informed that the warden, who had been given the letter addressed to
him, wanted to talk to the Grievant.
The disability application papers were mailed from the
institution and an appointment made with the warden for April 18. The Grievant did not keep either that
appointment or the rescheduled one on April 20 because of a conflicting
engagement and car problems. He and his
wife testified they thought the resignation had been rescinded by the personnel
officer as evidenced by having received the disability application. Mrs. Montgomery said she believed her
husband's appointment with the warden was to discuss management problems. In any event, the warden accepted the
resignation on April 20, wrote him a letter to that effect and confirmed it
when the Grievant telephoned him. The
resignation was subsequently processed and the Grievant was paid his leave balances
at the end of April.
The disability
claim was denied June 7 on the basis that he had resigned prior to expiration of
the waiting period. At some point--the
record is unclear when--Mrs. Montgomery
spoke to Dorothy Evener in the Department's personnel office. She testified Evener told her this was not a
union matter, but one that had to be appealed at the Department of
Administrative Services. The Grievant
then applied on June 14 for a refund of his accumulated contributions to PERS
and filed an appeal of the disability decision which he ultimately lost.
On September 26 a
grievance was filed alleging violation of Article 24 (Discipline) of the
Collective Bargaining Agreement. Said
grievance was denied at Step 4 on the grounds that the Grievant had no standing
(being a nonemployee at the time it was filed) and that it was untimely
filed. The case was then appealed to
arbitration where it presently resides for final and binding decision.
Arguments
of the Parties
Argument of the Employer
The Employer is
of the view that the grievance is not arbitrable because although the Grievant
was aware by the end of April that his resignation had been processed on April
20, 1994, he did not file a grievance until September 26, 1994, well outside
all contractual time limits set forth in Article 25.02. Arguing that the doctrine of laches applies,
the Employer says the Grievant slept on his rights, subjecting the Employer to
backpay liability. The negotiated time
limits should be upheld and the grievance found to be untimely and therefore
dismissed as not arbitrable.
Referring to
Articles 1.01 and 25.01, the Employer also argues that inasmuch as the Grievant
was not an employee on September 26 (having voluntarily resigned), he was not
covered by the terms of the Collective Bargaining Agreement. As he lacks standing to grieve, the case
should be dismissed as not arbitrable.
Turning to the
merits, the Employer contends that the evidence shows the Grievant voluntarily
quit his employment and was not, as the Union argues, constructively
discharged. No discipline was ever
issued in accordance with Article 24.
No coercion or demand that he resign was placed on the Grievant by
Management. He clearly voluntarily
resigned and his behavior of not coming to work, not calling off and not
responding to inquiries are indicative of that. The Employer cites Pepsi-Cola Bottling of Miami and United Steel
Workers, Local 7609, 70 LA 434 (Blackmar, 1978), on constructive discharges and
two panel arbitration decisions, Ellen Jenkins vs. Ohio Department of Youth
Services, OCB Award No. 539 (Rivera, 1991) and Franco Iulianelli vs. Ohio
Department of Taxation, OCB Award No. 781 (Cohen, 1992).
Regarding the
Grievant's mental capacity, anxiety and depression alone do not shield a person
from the consequences of their actions, says the State, citing Cedar Coal
Company, Denny Division and United Mine Workers of America, Local 1766, 79 LA
1029 (Dworkin, 1982), John Eilerman vs. Ohio Department of Rehabilitation and
Correction, OCB Award No, 463
(Dworkin, 1990), and Iulianelli.
The Employer goes
on to claim this case is distinguisable from the Eilerman and Davis v. Marion
County Engineer, 60 Ohio St.3d 53 (1991) cases relied on by the Union. In those cases, the affected employees
attempted to withdraw their resignations before they were acted upon. Here, the Grievant's resignation was
"effective immediately" and, unlike Davis, he did not continue to
work nor did he attempt to submit a letter of rescission after he was told his
resignation was in the hands of the warden.
The Employer
concludes that the Grievant resigned voluntarily with full knowledge of the
consequences of his actions and his conduct thereafter shows he intended to
quit. It therefore asks that the
grievance be denied in its entirety.
Argument of the Union
The Union makes
several points. First, that the
Grievant withdrew his resignation, Management was aware of this, and that
Management's actions led him to believe it had been withdrawn. Doyle, who directs the personnel program at
the institution, was put on notice that the Grievant did not want to pursue his
resignation; disability forms were mailed before any action was taken on the
resignation; and the warden knew the Grievant wanted to withdraw it before he
accepted it. In the Davis case, the Court held that it is not
necessary for a rescission to be in writing for it to be valid. Therefore, contends the Union, the
resignation the warden accepted did not exist.
Citing the Employer's failure to give consideration to the Grievant's
withdrawal and the Eilerman case, the
Union argues that the grievance should be sustained.
The Union also
claims the Grievant relied on poor information provided by the Department's
personnel director who told Mrs. Montgomery that the Department of
Administrative Services (DAS) was the proper forum for resolving the disability
and resignation issues. He followed
this bad advice and consistently maintained to DAS that his resignation had
been properly withdrawn. He did not
slumber on his rights, he relied on representatives of Management and ought not
now to suffer from it. The Union
contends these are unusual circumstances justifying hearing on the merits even
thought the grievance may have been untimely filed. It therefore asks that the Grievant be reinstated to his former
position with full back pay, benefits and seniority.
Opinion of
the Arbitrator
Whether this case
is arbitrable depends on when the Grievant became aware or should have become
aware of the event giving rise to the grievance. The event was the Employer's failure to accept the Grievant's
alleged withdrawal of his resignation, which occurred on April 20 when the
warden signed the letter informing the Grievant that his resignation was
accepted. Up until the point that the
Grievant received this letter, he may claim to have been under the impression
that he had successfully rescinded the resignation, but it is clear that once
he received it he was on notice that there was an issue of his employment
status. If he had any doubt, it had to
have been resolved when he spoke to the warden by phone on or about April
27. Thus, time began to toll in late
April. Counting from late April, there
is no grievance filing deadline in the Contract that is met by a grievance
filed on September 26.
The language of
Article 25 is clear in its specification of fixed time limits. Such language must be upheld except in the
case of waiver or unusual circumstances.
The Union claims that the Grievant was given misinformation and poor
advice by Management representatives and that this constitutes unusual circumstances
sufficient to overcome the clear Contract language. This theory of detrimental reliance is not supported by the
record. The conversations with Ms.
Doyle the Grievant and his wife said they relied upon took place before the
warden's letter was received.
Additionally, Ms. Doyle testified she informed Ms. Montgomery that the
case was out of her hands. The record
of what transpired between Mrs. Montgomery and Ms. Evener, Chief of Personnel
of the Department, is too ambiguous to be relied upon, consisting only of
hearsay evidence and lacking specification of when it occurred. On the other hand, the record does support
the Employer's claim that the Grievant knew to consult his Union, as he
testified to having tried to reach both a local steward and staff
representative. When this happened and
why he did not follow through until his attorney's recommendation remains
unexplained.
In sum, the
grievance was not filed within the time parameters of the Collective Bargaining
Agreement and the reasons for its untimeliness are insufficient to ovecome the
clear language of the Contract. It is
therefore not arbitrable and I lack authority to answer the question on the
merits.
Award
The grievance is
dismissed as not arbitrable on account of being untimely filed.
Anna DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
August 18, 1995