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Title: State of Oregon, Department of Revenue and Oregon Public Employees Union
Date: February 3, 1996 
Arbitrator: Luella E. Nelson 
Citation: 1996 NAC 111

 

In the matter of arbitration between:


Oregon Public Employees Union,

                            and

State of Oregon, Department of Revenue

RE:       Grievance of Michael R. Kalberg, 

               GS 17594

LUELLA E. NELSON, Arbitrator

 

                                                                                            


ARBITRATOR'S
OPINION AND AWARD

This Arbitration arises pursuant to Agreement between Oregon Public Employees Union ("Union"), and State of Oregon, Department of Revenue ("Employer"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

Hearing was held on November 21, 1995, in Salem, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties filed post-hearing briefs on or about January 2, 1996.  The parties waived the time limits for issuance of the Arbitrator's Opinion and Award.

APPEARANCES:

On behalf of the Union:

Lynn-Marie Crider, Esquire, Oregon Public Employees Union, 1730 Commercial Street, SE, P. O. Box 12159, Salem, OR   97309-0159

On behalf of the Employer:

Gary Cordy, Esquire, Assistant Attorney General, Department of Justice, 100 Justice Building, Salem, OR   97310

ISSUE

Is the dismissal grievance properly before the Arbitrator pursuant to Article 21 of the 1993-95 collective bargaining agreement?

RELEVANT SECTIONS OF AGREEMENTS

1993-95 MASTER AGREEMENT

ARTICLE 21 - GRIEVANCE AND ARBITRATION PROCEDURE

...

Section 1. ...

Grievances shall be reduced to writing, ....  Once filed, the Union shall not expand upon the original elements and substance of the written grievance.

All grievances shall be processed in accordance with this Article and it shall be the sole and exclusive method of resolving grievances. ...

Section 2.  Time limits specified in this and the above-referenced Articles shall be strictly observed, unless either party requests a specific extension of time, which if agreed to, must be stipulated in writing and shall become part of the grievance record. ...  "Filed for purposes of Steps 3 and 4 shall mean actual receipt.  (See Section 5 for discharge, reduction, suspension or demotion grievance time lines.)

If at any step of the grievance procedure, the Employer fails to issue a response within the specified time limits, the grievance shall automatically advance to the next step of the grievance procedure unless withdrawn by the grievant or the Union.  If the grievant or Union fails to meet the specified time limits, the grievance will be considered withdrawn and it cannot be resubmitted.

Grievance steps referred to in this Article may be waived by mutual agreement in writing.  Such written agreements shall become part of the grievance file.

...

Section 5.  Grievances shall be processed as follows:

DISMISSAL GRIEVANCES:

Dismissal grievances for regular status employees shall be filed directly at the PLRD, Labor Relations Division, within fifteen (15) calendar days of the effective date of the discharge.  The grievance must be in writing and state the specific reasons for the grievance.  If the grievance is not resolved by PLRD, the Union shall (if it chooses to appeal) file for arbitration within fifteen (15) calendar days after the response from PLRD was due or received.

REDUCTION, SUSPENSION OR DEMOTION:

Reduction, Suspension with or without pay or Demotion grievances shall be filed directly with the Agency Head (Step 2 of this Article) within fifteen (15) calendar days from the effective date of the action.  The Agency Head shall respond in writing in accordance with the time limits of this Article.

Step 1.  The grievant(s), with or without Union representation, shall file the grievance except as otherwise noted to his/her immediate excluded supervisor, or, if the immediate excluded supervisor does not have the authority to resolve the grievance to the second level supervisor.  The supervisor shall respond in writing to the grievant(s) within fifteen (15) calendar days from the receipt of the grievance. ...

Step 2.  When the response at Step 1 does not resolve the grievance, the grievance must be filed by the Union within fifteen (15) calendar days after the Step 1 response is due or received.  The appeal shall be filed in writing to the Agency Head or his/her designee, who shall respond in writing within fifteen (15) calendar days after receipt of the Step 2 appeal.

...

Step 3.  Failing to settle the grievance in accordance with Step 2, the appeal, if pursued, must be filed by the Union and received by the Labor Relations Division of the Department of Administrative Services within fifteen (15) calendar days after the Step 2 response is due or received.  The Labor Relations Division shall respond in writing within fifteen (15) calendar days from receipt of the Step 3 appeal.  At this step the parties agree that a face-to-face meeting (or the equivalent by phone) will occur between the Union and Personnel and Labor Relations Division.

Step 4.  Grievances which are not satisfactorily resolved at Step 3 may be appealed to arbitration.  If the Union intends to appeal to arbitration, the appeal must be received by the Labor Relations Division of the Department of Administrative Services within forty-five (45) calendar days after the Step 3 response was due or received.

 

Section 6.  Arbitration Selection and Authority.

(a)  Within thirty (30) days of submitting a case to arbitration, the Union shall notify the American Arbitration Association (AAA) of the dispute and request a list of arbitrators, ...

....

LETTER OF AGREEMENT (Modified November 14, 1994)

...

Section 6.  Arbitration Selection and Authority

(a)  Arbitrations between the parties shall be presented to one of the following arbitrators:

...

(c)  Within 15 days of receiving an appeal of a grievance to arbitration, the Labor Relations Division shall notify OPEU which arbitrator is next on the list for selection, and shall simultane­ously notify the arbitrator selected.

...

LETTER OF AGREEMENT (Modified December 22, 1994)

...

Section 6.  Arbitration Selection and Authority

(a)  Arbitrations between the parties shall be presented to one of the following arbitrators:

...

(c)  Within 15 days of receiving an appeal of a grievance to arbitration, the Labor Relations Division shall assign the next arbitrator on the list for selection, and shall simultaneously notify the interested Parties of such assignment.

...

PROCEDURES FOR IMPLEMENTATION OF LETTER OF AGREEMENT

1.             In accordance with Article 21 the Union will send the Labor Relations Division an intent to arbitrate notice, pending the completion of its internal screening process.

 

2.             The Union shall then send the Labor Relations Division the "Letter Requesting Scheduling" for those cases approved for arbitration.

 

3.             Within 15 days of receipt of the "Letter Requesting Scheduling" the Labor Relations Division will send the "Letter Assigning Arbitrator" along with a "Request for Dates."  The scheduling process will be the responsibility of the Parties involved.

 

4.             It is the intent of the Parties to expedite the scheduling of grievances and also avoid scheduling arbitrators for cases that may not proceed to arbitration.

FACTS

The arbitrability dispute in this case revolves around the process by which the Union moved the grievance to the arbitration process.  Some aspects of the process are documented and undisputed.

Grievant was discharged effective September 1, 1994.  The Union filed the grievance with the Employer's Personnel & Labor Relations Division ("PLRD") at Step 3 by certified letter dated September 6, 1994.  That letter was received in the PLRD on September 7.

In the ordinary course of grievance handling, the Employer's response would have been due on or about September 20.  By a letter hand-delivered on October 3, 1994, the Union notified the PLRD it was appealing the grievance to arbitration.  In the ordinary course of grievance handling, the Union would have been obligated to request a panel from the American Arbitration Association ("AAA") by November 1.  The Employer sent out a grievance response on October 6, which the Union received on October 10.

This grievance went through the Union's internal screening process.  Although that process initially led to a decision not to pursue the matter to arbitration, that decision was reversed at higher levels of the process.  While the screening process was going on, the screening committee directed Organizer Roger Bouch to try to work out a settle­ment.  On February 2, 1995, Bouch proposed a settlement to Grievant, which Grievant ultimately rejected.[1]  On June 27, 1995, the Union requested that arbitration be scheduled.

Meanwhile, the parties were negotiating a Letter of Agreement moving from the AAA process to a per­ma­nent panel of arbitrators.  The parties agreed to suspend notifications to AAA in the interim, but left all other timelines intact.

THE EMPLOYER'S CASE

The Employer's Labor Relations Manager, Cathy Schuh, testified she and Bouch generally pend the response date on grievances until they have a chance to meet, then agree on a definite response date and confirm the agreement in writ­ing.  She testified the letter confirming the extension of time generally is not prepared until after the meeting, because until then there is no fixed response date.

Schuh testified she met with Bouch on September 8, 1994, regarding this grievance.  Schuh ques­tioned whether the parties needed to meet over this grievance, since she had already been involved in prior discipline grievances involving Grievant.  Bouch agreed to discuss with Grievant whether there was addi­tional information to be presented.  Bouch mentioned Grievant was out fighting fires, and that Bouch had a vacation coming up.  Schuh testified the two agreed informally to let the matter remain pending until Bouch had a chance to get back to her.

Schuh testified she called Bouch on September 29 because she had not heard back from him.  Bouch told her he had not had a chance to consult with Grievant.  On October 3, Bouch called Schuh to tell her Grievant did not want to meet, so she could go ahead and respond.  He agreed she had until October 6 to respond.  Schuh testified the conversation was very routine.  She testified she did not see the October 3 appeal until October 5, and that Bouch did not mention it in their October 3 conversation.

Schuh testified she angrily called Bouch on October 5 to ask why he had sent the October 3 appeal.  He admitted it had been issued by mistake and agreed to rescind it.  Schuh suggested she just line through the letter and send it back to him with a note memorializing their conversation; Bouch agreed.  She wrote on the letter, "Per discussion w/Roger B. 10/5 letter withdrawn due to prior agreement to extend my timeline for response to Thurs 10/6.  Copy Roger same date 10/5."  She made a copy of the altered letter for her files, a copy of which was introduced in evidence.  She hand-addressed an envelope to Bouch and placed it with the letter in her out-basket to be sent out.  She understood that rescinding the appeal would require the Union to send a second appeal letter if it still wished to pursue the grievance.

Schuh closed her file on this case on October 28, noting "No timely appeal by Union."  She tes­ti­fied she was not surprised the Union did not send another appeal, since the Union had declined to take earlier discipline cases involving Grievant to arbitration.  She testified Bouch told her on November 2 that the Union was recommending not to proceed to arbitration, but that Grievant was ap­peal­ing.  She re­sponded by saying she had closed the case; she testified Bouch had nothing to further to say.

After the November 1994 Letter of Agreement, Schuh met with Julie Kettler, who was then a secretary on the Union's staff, to discuss pend­ing cases.  In that process, they discovered problems with the lang­uage of the Letter of Agreement, which led to the December revisions.  The two matched their respective lists of pending cases.  Schuh testified this case was not on the Employer's list; she does not believe it was on the Union's list because she would have noticed it.

Schuh testified Gary Cordy called her on December 13 for an update on this case.  Her notes reflect that she told him the grievance had been withdrawn.  On January 24, Bouch called to tell her the Union was taking the case to arbitration pursuant to the October 3 appeal.  She responded "No way," and reminded him of the events of October 5 and 6.  She testified Bouch did not deny receiving the October 5 note or ask for a copy.  He then asked whether the Employer would agree to purge Grievant's file.  She de­clined because the file was already closed, but suggested he try to work out an agreeable job reference with the Department.  Schuh later learned Bouch had contacted the Department for this purpose.

On July 10, Schuh learned Union attorney Lynn-Marie Crider had contacted the Department regarding arbitra­tion of this case.  She called Crider to update her on the case, and agreed to send a copy of her notes.  Crider later informed Schuh she wanted to schedule the case for arbitration.

THE UNION'S RESPONSE

Bouch testified he has sometimes orally agreed to extensions of time for a response.  When he does so, he follows up with written confirmation or gets one from the Employer.  He acknowledged there could be situations where there was no follow-up letter.  However, he denied ever letting a grievance float without a definite date for a response.  In his view, permitting the Employer to have an unconfirmed dead­line for response would cause the Union to miss its timeline with no way to verify that the extension of time had been granted.  Bouch has sometimes received untimely Employer responses to grievances.  If the case has already been moved to arbitration, the response simply goes in the file.  Other than this case, he did not recall Schuh ever being late with a response without having secured an extension of time.

Bouch testified he initially sought to set up a meeting with Schuh to discuss this grievance.  He recalled there was a period when Grievant was unavailable because of service in the National Guard or the Army Reserve.  Bouch took vacation for the weeks of September 17 and 24.  He testified that, at some point, Schuh told him that "in the interest of time" she was going to uphold the dismissal.  After checking with Grievant, he agreed to skip the meeting and proceed to arbitration or to the internal screening process.  He later told Schuh he was recommending withdrawing the grievance, but that Grievant would appeal.

Bouch did not recall agreeing to an extension of time for Schuh's response.  He recalled Schuh ex­pressing surprise at the October 3 appeal.  Within a month after the appeal, and again after the internal screening process, Schuh told Bouch she believed the grievance was dead.  He re­sponded the Union had followed the timelines and was proceeding forward.  He testified Schuh offered nothing in writing to support her claim that the grievance was properly closed.  He did not recall her men­tion­ing any agreement to withdraw the October 3 appeal.  He testified he tried to settle the case, but had little settlement leverage once the internal screening process led to an initial decision not to pursue the case.

Barbara Dumas, who served as secretary to the organizers, testified organizers have sometimes notified her orally of extensions of time for an employer response; in those instances, they followed up with a letter or FAX confirming the extension and asking for a signature confirming the extension.  On occasion, she has received a letter from the Employer documenting an extension of time and re­quest­ing a confirming signature from the Union.  In either event, she puts the written memori­al­ization in the file.  No such letter is in the file for this case.  Dumas processes the mail for organizers and reviews all correspondence dealing with grievances.  She testified she has no recollec­tion of receiving a letter regarding an extension of time on this matter.  Dumas testified she was adamant that organizers were to document extensions of time, and she was unaware of any instance in which she learned of an extension of time and did not get written documentation.

Organizer Greg Schneider testified he trains new organizers to make sure they have a confirming memo for any extension of time.  Such a memo could confirm a specific date, or confirm that the case would remain pending until a meeting had been held.  He testified meetings on grievances often happen more than 15 days after the grievance has gone to Step 3.  The Union's policy is that the case file should contain a written confirmation of an extension of time; however, he cannot be sure that each case file contains such a memo.  He is unaware of any specific case in which the case file did not have a written confirmation and the Employer asserted a timeliness defect.

The Union's then-Assistant Executive Secretary, Tim Nesbitt, testified that, after the Letter of Agreement had been finalized, he directed Kettler to meet with Schuh and reach an understanding on the status of the cases that were still in the pipeline.  Although the Union maintained and updated a weekly list of pending cases, Nesbitt was unaware of any mutually-prepared list.  This case appeared on the Union's weekly lists of pending grievances, copies of which were introduced in evidence.

POSITION OF EMPLOYER

The Union has not properly pursued this grievance to arbitration because a demand to arbitrate was not timely filed.  The October 3 appeal was a nullity because Schuh had specifically sought and received approval to respond by October 6.  Bouch acknowledged the October 3 appeal was a mistake and withdrew it consistent with their agree­ment.  Thereafter, the matter was not properly appealed to arbi­tra­tion under Article 21 or the Letter of Agreement.

The Arbitrator should credit Schuh.  She had contemporaneous notes of her conversations with Bouch, whereas Bouch had no notes and in many regards had either vague recollections or no recollection of conversations.  Bouch falsely told Schuh on January 24, 1995, that the Union was going forward with arbitration.  At that time, the Union arbitration screening had not approved arbitration, as Bouch notified Grievant.  Bouch did not explain this false statement during his testimony.  Further, Bouch falsely repre­sented to Grievant that he had worked out a settlement.  Bouch's lack of documentation has left him vulnerable to mistaken recollection, and has also allowed for the manipulation of events.  The evidence strongly supports Schuh's testimony.

The Arbitrator should apply the presumption that a letter duly directed and mailed was received in the regular course of the mail.  This presumption is bolstered by Schuh's testimony and the copies of the October 3 appeal retained in the Employer's files.  Thus, the best evidence is consistent with the State's position that an oral extension of time was agreed to and the Union was required to meet the 15-day ap­peal deadline thereafter.  Otherwise, receipt of the October 6 grievance response should have caused Dumas to ask why the State sent a response if the matter was already going to arbi­tration.

The Arbitrator should credit Schuh's testimony that Bouch acknowledged the October 3 appeal was an error.  An acknowledged error results in a nullity.  No further action is required to rescind or withdraw the error.  However, Schuh did make a written record.  The oral agreement of October 5 is en­force­able.  That agreement was an acknowledgement that the appeal was a mistake and was withdrawn.

The Union is bound by Bouch's acts.  Schuh had no reason to believe Bouch did not have au­thor­ity to extend the response date or withdraw the October 3 appeal.

Dismissal is equitable.  The Union took a cookie cutter approach to this case, and Bouch never ful­filled his end of the deal with Schuh.  Even if the Union did not receive the lined-out October 3 appeal from Schuh, it received her October 6 response, but gave it no effect.  Bouch and Dumas were on notice some­thing was amiss by October 10, when that response arrived.  At no time did Bouch ask for a copy of the lined-out appeal letter or tell Schuh he disagreed with her assertion.  Bouch expected the Union and the Grievant not to pursue the case to arbitration.  He was sloppy in processing the grievance.  That sloppiness should not now be rewarded.  He also should not be re­warded for his substantial misstatement in late January 1995, when he told Schuh the matter was going forward to arbitration.

No substantial injustice would be done to Grievant by finding this case not arbitrable.  Each Union person who looked at his claim found it to be non-meritorious.  The Union agreed to arbitrate the case without being advised by Bouch that the State was asserting an arbitrability defense.

Schuh assured compliance with the contractual requirements.  She made written records of her agree­ments with Bouch in her grievance file.  She returned the October 3 appeal to Bouch with notations of those agreements.  She also made a written response on October 6, as she said she would.  Thus, her processing of the grievance was in accordance with the Agreement and the parties' practice.

The grievance should be dismissed.

POSITION OF THE UNION

The Agreement requires the parties to process grievances within the timelines established by the Agreement unless they are varied by mutual agreement, stipulated in writing and placed in the grievance record.  Those timelines cannot be orally varied.  The Union processed the grievance according to the time­lines in the Agreement.

Assuming arguendo that an agreement to extend the response deadline was made, it was never reduced to writing.  It therefore was ineffective under the clear terms of the Agreement.  Therefore, the October 3 appeal was timely, and there can be no contention it was premature or otherwise ineffective.

Assuming arguendo that Bouch said he would withdraw the October 3 appeal in deference to Schuh's desire to submit an untimely response, nothing in the Agreement allows a Union representative to nullify a completed step of the grievance procedure by making an oral statement that an appeal is withdrawn, much less by an oral representation of his intent to do so in the future.

The Agreement requires that all essential procedural aspects of the grievance process be in writing.  This includes the grievance, the response, the appeal to arbitration, any extension of time, and any waiver of a step in the process.  The provision demonstrates an intent not to permit critical elements of the grievance process to be done without written agreement.  The parties had good reason for this intent.  If changes in timelines and procedures could be done orally, disputes such as this one would be more common.  Any oral representation that the grievance or the appeal would be withdrawn was meaningless.

It is preferable for disputes such as this to be resolved on the merits rather than sidestepped based on procedural concerns.  The matter should go forward on the merits unless the evidence clearly estab­lishes that the grievance is not properly before the Arbitrator.

The Employer cannot hide behind the claim that the Union should have appealed to arbitration twice.  Its position depends on extensions and variances from the established procedure, but it did nothing in writing.  It should not be permitted to rely on supposed oral agreements to defeat the grievance.

The Union timely filed the grievance with the PLRD.  When the Employer did not timely respond, the grievance advanced automatically to the next step.  The late response was a nullity, and the Union was obliged to file for arbitration within 15 days of the date the response was due.  The Union did so.

The Union disputes Schuh's claim of an alleged practice of oral extensions followed by written confirmation.  However, even if such a practice existed, in this case, there was never a written agreement either confirming an extension or setting a new date for the response.  Finally, past practice can only be used to clarify ambiguous contract language; it does not justify a departure from clear and unambiguous language.  The requirement that extensions be by mutual agreement, in writing, is clear and unambiguous.

It appears Schuh misunderstood the transaction with Bouch regarding withdrawal of the October 3 appeal.  Bouch has no recollection of such an agreement, and he did not notify Dumas of any such agree­­ment.  One should therefore infer that he made no agreement to withdraw the appeal.  In any event, the Agreement does not permit an oral withdrawal.  No provision specifically prohibits oral withdrawal, but allowing that to occur would be inconsistent with the contract's evident purpose to avoid disputes over the procedural viability of a grievance.

Schuh's lined-out copy of the October 3 appeal cannot substitute for a written communication from the Union withdrawing the appeal.  It does not satisfy Article 21's demand for clarity.  Had she asked Bouch to sign to indicate his assent, and had Bouch signed it, it would be a different matter.  Such a procedure would have paralleled the way the parties have historically confirmed agreements extending timelines.  It also would have documented an agreed-upon requirement that the Union re-file the appeal.  Schuh's failure to get written assent to withdrawal precludes an argument that the Union gave up its right to arbitrate this grievance by failing to engage in the redundant exercise of sending a new appeal letter.

The grievance was timely processed under the Agreement, and should be heard on the merits.

OPINION

Lack of arbitrability is an affirmative defense as to which the Employer bears the burden of proof.  Procedural provisions are as enforceable as any other contract term.  However, the parties include grievance and arbitration procedures in their contracts as a means of resolving disputes.  Doubts regarding such pro­cedural defenses therefore are resolved against forfeiture.  In considering whether a party has met its procedural obligations, arbitrators are bound by the clear language of the Agreement, and must avoid interpretations which render a pro­vi­sion meaningless or ineffective.

The Agreement is clear and unambiguous.  At every step of the grievance process, it requires written documentation of the steps taken or waived.  All waivers must be "by mutual agreement in writing," and become part of the case file.  It may well be that, in practice, some Employer and Union representatives have "covered" for each other by writing retroactive waivers of timelines in the interest of good labor relations.  However, where such a mutually-beneficial accommodation does not occur in a particular case, the clear contractual language regulates grievance processing.

Thus, the pivotal question here is not whether Bouch orally agreed to an extension of time for an Employer response, as Schuh testified.  Such an extension, by itself, would have no major substantive ef­fect.  The Union had the burden of moving the case forward even if the Employer missed the deadline.  The Union met that burden by sending the October 3 appeal, and cannot be faulted for adhering to the contractual time limits at a time when no written confirmation existed of any agreement to extend the Employer's response time.  The central question is whether the events of October 5 and 6 nullified the appeal, and thereby required the Union to re-issue the appeal in order to move the case forward.

The purpose of requiring written grievances, responses, appeals, and waivers, is to provide a clear and undisputed record of grievance processing.  This purpose would be defeated if a party could orally negate documented case processing steps.  Under the clear language of the Agreement, neither Bouch nor Schuh could make a bind­ing oral waiver of the deadline for an Employer response or an appeal.  It fol­lows that neither could orally nullify a properly-completed grievance step.  Schuh's nota­tions on the October 3 appeal letter do not substitute for the mutually-agreed documentation required by the Agreement.  She neither sought nor obtained Bouch's written assent to withdrawing the appeal.  It is therefore unnecessary to decide the scope of Bouch's actual or apparent authority as an agent of the Union, or to resolve the credibility disputes in this case.

Finally, it is unnecessary to determine where the "equities" lie in this case.  The parties have fine-tuned their grievance procedure, providing quite explicitly each party's obligations and the consequences of failing to meet those obligations.  The Arbitrator is without authority to re-write their agreement.

For all the above reasons, it is concluded that the grievance is properly before the Arbitrator.

AWARD

The dismissal grievance is properly before the Arbitrator pursuant to Article 21 of the 1993-95 collective bargaining agreement.

DATED:  February 3, 1996

                                                                                            

LUELLA E. NELSON - Arbitrator

 


[1]           The Employer denies ever offering a settlement, but acknowledges some discussions occurred regarding what form of reference the Employer would give for Grievant.

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