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y the grievant, would be compensable. The
Arbitrator found that the project work of
developing, testing, and implementing changes
to the processes and programs of registration
renewals was clearly outside the domain of the
Grievant’s normal work. Since the Union had
the burden to show by a preponderance of
evidence that the Grievant “normally performed
the work,” and/or the Arbitrator could only make
an educated guess, the grievance must be denied.
977
On April 24, 2006 the Agency posted a position
for an Environmental Specialist 1 (ES1). Later
the Agency withdrew that posting and applicants
were sent letters on or about May 26, 2006 that
the position would not be filled. Then the
agency posted for an Administrative Assistant 2,
with a job description which was essentially the
same as that of the ES1. That position was filled
on June 26, 2006. On July 6, 2006 the Union
filed a grievance arguing that assigning an
exempt employee to that position violated
Articles 1.05 and 17.05 of the CBA. The
Agency raised a timeliness objection. The Union
contended that the triggering event was the June
26 filling of the AA2 position with an exempt
employee and not the announced withdrawal of
the ES1 position. The Arbitrator held that the
Agency effectively waived its right to raise the
issue of procedural arbitrability by waiting until
the arbitration hearing to assert that issue. Each
Party has an obligation to scrutinize the
substantive and procedural aspects of a grievance
while processing it through the negotiated
grievance procedure and to raise relevant
procedural and/or substantive objections before
going to arbitration. When procedural objections
are not raised earlier in the grievance process,
there is a risk of losing relevant information or
losing opportunities to negotiate settlements.
The Arbitrator was persuaded that Article 25.03
does not impose a duty on the Union to establish
a prima facie case before arbitrating the merits of
a dispute. The Agency’s argument rests on their
own interpretation of that Article. However the
Arbitrator held that reasonable minds may differ
on their interpretations; consequently,
reinforcing the need for a review of the issues in
an arbitration. The Agency arguments also rest
on several assertions that have not been
established as facts in the dispute (e.g.
“bargaining unit work does not exist in the
ESS.”) These assertions are better left to an
arbitration. The Arbitrator held that because of
the special nature of collective bargaining
relationships, there is a heavy presumption in
favor of arbitration when disputes arise. 989
25.03 – Arbitration Procedures
Arbitrator authority. 152
Section 25.03 provides that questions of
arbitrability shall be decided by the arbitrator.
158
The arbitrator reads Section 25.03 as directing
the parties to attempt to stipulate to the facts and
issues in a submission to the arbitrator. By
implication the arbitrator will find the facts and
determine the issues that are in dispute, where
they cannot be agreed upon. That section does
not give the arbitrator jurisdiction over matters
beyond the scope of arbitration. 191A
While 25.03 gives the arbitrator the authority to
decide questions of arbitrability, in making such
decisions the arbitrator is bound by the following
scope of arbitration clause, found later in the
same section: “Only disputes involving the
interpretation, application or alleged violation of
a provision of the agreement shall be subject to
arbitration” Thus, even thought he parties have
authorized the arbitrator to interpret the
arbitrability provision, that authority does not
negate the limitations on arbitral jurisdiction
found in section 25.03. 191A
The rule disfavoring interpretations which lead
to harsh, absurd, or otherwise indefensible
results has been researched in depth by the
arbitrator. Without exception, every
pronouncement of the principle carefully
circumscribes it to ambiguous language. If the
parties intentionally negotiated something which
could bring about untoward consequences, an
arbitrator has no authority but to apply the
language as it was meant to be applied. The
arbitrator cannot rescue a party from a bad
bargain, improve the governing collective
bargaining agreement, or disregard any of its
written provisions. This precept has been
repeated time and again in arbitral opinions and
judicial rulings. More to the point, 25.03 sets
forth the principle as a restriction on arbitral
jurisdiction. 228
This is a decision dealing with the initial
arbitration of decision 252. The Union argued
that the employer should pay interest on the