of Oregon, Department of Revenue
Public Employees Union
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
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.
behalf of the Union:
Lynn-Marie Crider, Esquire, Oregon Public Employees Union, 1730
Commercial Street, SE, P. O. Box 12159, Salem, OR 97309-0159
behalf of the Employer:
Gary Cordy, Esquire, Assistant Attorney General, Department of Justice,
100 Justice Building, Salem, OR 97310
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
21 - GRIEVANCE AND ARBITRATION PROCEDURE
Section 1. ...
shall be reduced to writing, .... Once
filed, the Union shall not expand upon the original elements and substance of
the written grievance.
grievances shall be processed in accordance with this Article and it shall be
the sole and exclusive method of resolving grievances. ...
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.)
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the next step of the grievance procedure unless withdrawn by the grievant or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considered withdrawn and it cannot be resubmitted.
steps referred to in this Article may be waived by mutual agreement in
writing. Such written agreements
shall become part of the grievance file.
Grievances shall be processed as follows:
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.
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.
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. ...
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.
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
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.
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
Arbitrations between the parties shall be presented to one of the
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
Arbitrations between the parties shall be presented to one of the
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
PROCEDURES FOR IMPLEMENTATION OF LETTER OF AGREEMENT
In accordance with Article 21 the Union will send the Labor Relations
Division an intent to arbitrate notice, pending the completion of its internal
The Union shall then send the Labor Relations Division the "Letter
Requesting Scheduling" for those cases approved for arbitration.
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
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.
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.
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.
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.
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
On June 27, 1995, the Union requested that arbitration be scheduled.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
grievance should be dismissed.
POSITION OF THE UNION
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
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.
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.
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
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.
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.
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.
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.
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.
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.
grievance was timely processed under the Agreement, and should be heard on the
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
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
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.
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.
The dismissal grievance is properly before the Arbitrator pursuant to
Article 21 of the 1993-95 collective bargaining agreement.
February 3, 1996
LUELLA E. NELSON - Arbitrator
The Employer denies ever offering a settlement, but acknowledges some
discussions occurred regarding what form of reference the Employer would
give for Grievant.