Arbitration summary and award log




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ARBITRATION SUMMARY AND AWARD LOG

OCB AWARD NUMBER: #1518


OCB GRIEVANCE NUMBER:

35-04-19990122-0285-01-03


GRIEVANT NAME:

Shelli Jackson


UNION:

OCSEA/AFSCME Local 11


DEPARTMENT:

Youth Services


ARBITRATOR:

Robert G. Stein


MANAGEMENT ADVOCATE:

Beth A. Lewis


2ND CHAIR:

Mike Duco


UNION ADVOCATE:

Herman S. Whitter


ARBITRATION DATE:

3/28/00, 5/12/00, 12/11/00, 12/14/00, 1/19/01, 3/12/01


DECISION DATE:

August 6, 2001


DECISION:

GRANTED


CONTRACT SECTIONS:

Article 24 - Discipline








HOLDING: The Grievant was terminated for seven different infractions. Before the arbitration concluded, the Grievant filed a Federal civil lawsuit against the Department of Youth Services. In settling the civil lawsuit, the parties agreed to put the Grievant back to work with $85,000 in back pay. The Arbitrator was instructed to only determine whether, in the future, the Department should be required to pay roll call as part of back-pay awards. The Arbitrator determined that roll call should be included in any back-pay award.

COST: $4,025.00



SUBJECT:

ARB SUMMARY #1518


TO:

ALL ADVOCATES


FROM:

MICHAEL P. DUCO


AGENCY:

Youth Services

UNION:

OCSEA/AFSCME Local

ARBITRATOR:

Robert G. Stein

STATE ADVOCATE:

Beth A. Lewis

UNION ADVOCATE:

Herman S. Whitter

BNA CODES:

118.01 – Discipline in General; 118.06 – Back Pay Awards

The Grievance was GRANTED.


The Grievant was terminated for seven different rule violations over a period of several months. Before Arbitration, the Grievant filed a Federal EEO suit. In resolving the federal lawsuit, the parties agreed to put the Grievant back to work with back pay. Therefore, the only issue which remained for the Arbitrator to decide was the general question of whether roll call pay should be awarded as part of a back pay award.
The Employer argued that the language of the parties’ Memorandum of Understanding (“MOU”) prohibited an award of roll call pay with any back-pay award. A Labor Relations Officer from DYS testified that the language of the MOU was included in order to avoid the payment of roll call. The Employer produced evidence of a past practice in which back-pay awards have not included roll call pay. The Employer also argued that if the testimony of both the Employer’s and Union’s witnesses was offsetting, then the Union’s interpretation must fail since it bore the burden of persuasion.
The Union argued that there have been some settlement agreements in which the Employer agreed to pay roll call as part of a back pay award. The Union also argued that if the Employer violated the just cause standard when disciplining an employee, the employee should receive all pay to which he/she is entitled. Finally, the Union argued that the Employer’s interpretation of the MOU was nonsensical.
The Arbitrator granted this portion of the grievance. He stated that attendance at roll call is a condition of employment for Juvenile Correction Officers and this contract provision is subject to the Article 24 disciplinary standards. He stated, “reason and contractual requirements dictate that any ‘actions taken under Article 24’ . . . must be able to withstand a just cause review through the grievance process.” If it is determined that discipline was imposed without just cause, then the discipline does not exist. The Arbitrator concluded, “It would be fundamentally unreasonable to deprive an employee of roll call pay based upon an employer’s action that is found to be without just cause.” For this reason, he granted this portion of the grievance.


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