by Contract Number (PDF) - OCSEA

In this case the Union grieved that the State
violated Article 17 of the Agreement. The State
filled a position without posting the position. An
employee received a provisional appointment to
a supervisor position outside the bargaining unit.
The employee had to pass an exam to stay in that
position and failed. The State returned this
employee back to his old position in the
bargaining unit. The arbitrator found that
returning the employee to his old position was a
“vacancy” under Section 17.03 of the
Agreement. The arbitrator found in favor of the
Union. The State had to post the position and
identify the most senior employee eligible to bid
on that position. 297
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
The issue was previously found
arbitrable in Arbitration Decision 989.
The Arbitrator held that the evidence
did not demonstrate that the Agency
possessed the intent to erode the
bargaining unit. Nothing in the arbitral
record suggested that the Agency
exerted less than reasonable effort to
preserve the bargaining unit. The
Arbitrator also held that the record did
not demonstrate that the Agency
intended to withdraw the vacancy to
circumvent the agreement. Constructive
erosion occurs where a new position is
erroneously labeled exempt when it
should have been labeled nonexempt.
Constructive erosion restricts the future
size of a bargaining unit; direct erosion
reduces the present size of a bargaining
unit. The Arbitrator used the label
“hybrid” to explain the nature of the
contested position, reflecting the
presence of both exempt and nonexempt
duties in one position. Furthermore, he
posed that the fundamental issue of the
grievance was: Whether the contested
position was exempt or nonexempt?
Consequently, the Arbitrator proposed a
screening device for hybrid positions
that might be useful in resolving
subsequent classification disputes. This
screening test puts the focus on
essential duties (“Essence Test”):
whether exempt or nonexempt duties
are required in (essential to) daily job
performance. A hybrid position is
exempt if daily job performance entails
exempt duties; a hybrid position is
nonexempt if daily job performance
necessitates nonexempt duties. The
Arbitrator held that exempt duties do
not somehow become nonexempt
merely because bargaining-unit
employees have performed them; nor do
nonexempt duties become exempt
because supervisors perform them. The
Arbitrator’s application of the “Essence
Test” indicated that the contested