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A
7026-1918-03 - Genesee County Drain Commission
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| Issue: | Discharge - absent without leave |
| Result: | The
grievant, with nearly two years seniority, was absent three consecutive
working days without notifying the employer. The employer notified him that
he was considered a voluntary quit/termination. The Union grieved. In arbitration, the employer challenged the timeliness of the grievance and challenges that the arbitrator is without jurisdiction to consider the merits of the case because the request for arbitration was not timely made. The Union responded that the intent to arbitrate was timely requested within 15 calendar days. The Local President testified that he personally delivered the letter of intent to the post office timely. The arbitrator sustained the Union's argument on the timeliness issue stating: 1. "The well established rule places the burden on the challenger to prove that a grievance is not arbitrable. See, Miami Industries, 50 LA 973-,84 (Howlett, 1968). In the Miami Industries case, Arbitrator Robert Howlett reasoned that challenging timeliness constitutes an affirmative defense that must be proven by the charging party. 2. "My conclusion that the Union's request to arbitrate rests primarily on the reading of the language in Step 4 (A), which is clear and unambiguous. The language requires the Union to "request arbitration" within 15 calendar days after receipt of the employer's Step 3 answer. Plain and simple, this language means the request must be made within the deadline. The language does not mandate a deadline for receipt of the request by the employer. "Had I found the Union's request to be untimely under Step 4 (A) of the Agreement, I would have no choice but to strictly enforce what the parties agreed would be the consequence of an untimely request - the grievance would be considered settled based on the employer's Step 3 answer. In such a case, the grievance would be declared non-arbitrable and dismissed." The arbitrator concluded the grievance is arbitrable. The employer argued that this case involves a voluntary quit termination pursuant to the contract. The parties negotiated and agreed upon an automatic outcome or penalty should certain conditions exist. Under such provisions, arbitrators have far less discretion in general and no discretion to consider the reasonableness of the penalty. In Muskegon-Oceana, Arbitrator Block concluded that factors normally considered in a just cause analysis, such as the grievant's work record, length of service, due process, and overall reasonableness of the employer's action, are not taken into account when analyzing the application of an automatic termination provision. "The arbitrator's role when analyzing an automatic termination provision has been described as follows: It is not, then, for the arbitrator to determine whether there is fairness or justice involved; the parties have already negotiated the result. The only thing an arbitrator may do is to review facts and determine whether they meet the criteria set forth in a contract to trigger the termination of an employee. Hastings Manufacturing CO., 90 LA 617, 619 (Daniel, 1988). There is little room in this case to apply notions of equity in the interpretation of a governing collective bargaining agreement. This is not a case in which the criteria for termination under the agreement are expressed only generally and specific termination criteria appear in unilaterally implemented company rules. Here, the applicable criteria for termination are spelled out in the agreement. The union and the company have mutually agreed to the three day notice provision. . . Budd Antle, Inc., 109 LA 129 (Alleyne, 1997." The arbitrator concluded that the employer did not properly terminate the grievant as a voluntary quit under the contract for being absent three consecutive working days without notifying the employer. "Although the grievant was absent for three consecutive working days, he notified the employer during the third day. The doctor's note indicates that he had a legitimate reason for his absence, although he was lax in failing to submit the note earlier. . . The plain language of the contract does not indicate that 'working days' is synonymous with an individual employee's shift and there is no evidence employees have been so advised." The decision was to reinstate on a conditional basis. The grievant was required to submit medical documentation that he is currently able to work. Back pay was ordered for all time the employee was not on medical exclusion. |
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