by Contract Number (PDF) - OCSEA
by Contract Number (PDF) - OCSEA
by Contract Number (PDF) - OCSEA
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filed a grievance arguing that assigning an<br />
exempt employee to that position violated<br />
Articles 1.05 and 17.05 of the CBA. The<br />
Agency raised a timeliness objection. The Union<br />
contended that the triggering event was the June<br />
26 filling of the AA2 position with an exempt<br />
employee and not the announced withdrawal of<br />
the ES1 position. The Arbitrator held that the<br />
Agency effectively waived its right to raise the<br />
issue of procedural arbitrability <strong>by</strong> waiting until<br />
the arbitration hearing to assert that issue. Each<br />
Party has an obligation to scrutinize the<br />
substantive and procedural aspects of a grievance<br />
while processing it through the negotiated<br />
grievance procedure and to raise relevant<br />
procedural and/or substantive objections before<br />
going to arbitration. When procedural objections<br />
are not raised earlier in the grievance process,<br />
there is a risk of losing relevant information or<br />
losing opportunities to negotiate settlements.<br />
The Arbitrator was persuaded that Article 25.03<br />
does not impose a duty on the Union to establish<br />
a prima facie case before arbitrating the merits of<br />
a dispute. The Agency’s argument rests on their<br />
own interpretation of that Article. However the<br />
Arbitrator held that reasonable minds may differ<br />
on their interpretations; consequently,<br />
reinforcing the need for a review of the issues in<br />
an arbitration. The Agency arguments also rest<br />
on several assertions that have not been<br />
established as facts in the dispute (e.g.<br />
“bargaining unit work does not exist in the<br />
ESS.”) These assertions are better left to an<br />
arbitration. The Arbitrator held that because of<br />
the special nature of collective bargaining<br />
relationships, there is a heavy presumption in<br />
favor of arbitration when disputes arise. 989<br />
25.05 – Time Limits<br />
The relevant guiding intent of the parties is set<br />
up in the preamble, or purpose clause of the<br />
contract as “…the promotion of harmonious<br />
relations between the employer and the union;<br />
the establishment of an equitable and peaceful<br />
procedure for the resolution of differences.” To<br />
interpret section 25.05 as the union requests (if<br />
the employer is untimely, the grievance remains<br />
arbitrable regardless of when the union appeals it<br />
to arbitration and only ceases to be arbitrable if<br />
the union withdraws the grievance) would run<br />
counter to the purpose <strong>by</strong> indefinitely postponing<br />
the ultimate resolution of grievances and<br />
destroying the balance contractual scheme for<br />
meeting the expressly stated goal of the<br />
grievance procedure: “25.01”. 158<br />
Section 25.05 is rather a general provision which<br />
further explains and supplements the specific<br />
time limits imposed on both parties in section<br />
25.02. 158<br />
The first paragraph of 25.05 is not limited in its<br />
terms only to those grievances which have been<br />
favored with a timely written response from the<br />
employer. Rather, that paragraph serves to<br />
reconfirm the specific time limits imposed upon<br />
the union at steps 2, 3, and 4 of the grievance<br />
procedure. 158<br />
The second paragraph of 25.05 establishes that<br />
neither the time limits for the employer to<br />
respond nor the time limits for the union to<br />
perfect its appeal can be extended, absent the<br />
mutual agreement of the parties. 158<br />
The contract (25.05) provides that a grievance<br />
not appealed within the designated time limits is<br />
treated as withdrawn without any affirmative<br />
obligation of the union. It strains credulity to<br />
concluded that the parties intended that the union<br />
be required to affirmatively appeal a grievance<br />
in the event of a timely response while it is at the<br />
same time required to affirmatively withdraw a<br />
grievance when no answer or a late answer is<br />
forthcoming. 158<br />
The “forfeiture” complained of <strong>by</strong> the union was<br />
voluntarily agreed to when the contract was<br />
executed and represents a logical quid pro quo<br />
for the twenty one day requirement of the office<br />
of collective bargaining to respond or lose<br />
jurisdiction. 158<br />
The contract says that grievances not appealed<br />
within the designated time limits will be treated<br />
as withdrawn grievances (25.05). It would be<br />
injustice to both parties for the arbitrator to allow<br />
the language of the contract to be outweighed on<br />
the grounds of a clerical error <strong>by</strong> a temporary<br />
employee. 164<br />
Adherence to contractual time lines is critical<br />
and to move the grievance forward where time<br />
limits have not been met requires circumstances<br />
and considerations which overwhelm contract<br />
language. Failure of a temporary employee to<br />
carry out the task in an appropriate manner is<br />
simply not the basis to override contract<br />
language. 164