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work to the bargaining unit in perpetuity when
the duty was not included in the classification
specification. 817
The grievant bid on a Storekeeper 1 position. He
won the bid but was never placed in the position.
The arbitrator found that the State’s failure to
place the grievant into the position was
immediately apparent. “If the union believed
that the work was being done by others in
violation of the collective bargaining agreement,
it would have been obvious at that time and it
could not wait two and one-half years to file a
grievance.” The arbitrator found the grievance
to be filed in an untimely manner and did not
rule on its merits. 903
The Agency issued an announcement that an
employee in an Administrative Assistant 3
classified exempt position had been selected as
the EEO Officer for the Agency. A hearing was
waived and the parties presented written briefs
with largely undisputed facts. Then the arbitrator
had a telephone conference with representatives
from each party combined. To uphold the
fairness of the procedure, the Grievant submitted
a sworn affidavit waiving his right to have the
grievance heard in person. Classification
language was the first issue. The Agency’s
announcement that an exempt employee would
serve as EEO Officer does not constitute an
announcement that the employee is occupying a
class title belonging to the bargaining unit. The
duties assigned by the Agency were similar to
the EEO Manager class title, one of the four
exempt class titles that were within the DAS
classification Series 6913 entitled “EEO
Officer.” The second issue was a policy
consideration: Who should be the EEO
Officer—a bargaining unit member or an exempt
employee? The questions of who should
perform the duties and to whom they should be
assigned were beyond the scope of an arbitrator’s
duties. The contract limits the arbitrator to
“disputes involving the interpretation,
application or alleged violation of a provision of
the Agreement.” The contract does not give the
arbitrator the authority to consider and answer
questions that appeal only to the arbitrator’s
personal sense of what is fair or just. The third
issue was bargaining unit erosion. The part-time
duties of the EEO Officer at the Agency had
always been performed by management
personnel. Therefore, the assignment of duties to
an exempt employee as EEO Officer was the
same action that the Agency had taken over the
past several years. Since the amount of
bargaining unit work performed by supervisors
did not increase, the arbitrator found no basis for
the claim that the Agency took action for the
purpose of eroding bargaining unit work. The
grievance was denied. 963
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 Union filed separate grievances from
Guernsey, Fairfield, Licking, Knox, Perry, and