WWA states: Employees’ department seniority shall
govern in laying off and reemployment of employees. Employees so laid off
because of lack of work shall be returned in the inverse order in which they
were laid off, as the need for their classification, or classification
of work permits.
A
Determination letter dated 7/25/2011 denying Grievance #8098, stated in part…
·
“The
grievance is not timely as it is more than 30 days since the employees were
laid off.
·
“The
Schedule Writer 1’s were laid off on August 22, 2010 by classification for
fiscal reasons not “lack of work” as described in the WWA Article 1, Section
14, Paragraph 1 Layoff.”
·
Prior
to the SW1’s being appointed in 2007, the SW2’s and other staff had a past
practice of performing field work and making operator contacts. The work has
not been exclusive to the SW1’s.
My position…
The Grievance
is “timely.” Our contract states 30-days, “or from the first date the grievant
could reasonably be assumed to be known by the employee, whichever is later.”
·
I
am not a Bus Operator; nor have I been back to Powell garage since my lay-off. Therefore I cannot see or know if the Schedule
Writer 2’s (SW2) were (are) going to the garages and doing my job. I was told by two
reliable sources that they believed the Schedule Writer’s were doing what ‘you
used to do.” I was also told “planners” were doing my work. I met with Bruce
Duncan as soon as I could, which was at a union meeting. I asked him to confirm
what I had heard. He confirmed a planning manager did bus counts (was unaware of any
other planners), and that
Schedule Writers were going to the garages. I filed a grievance less than
30-days after confirming.
·
At
the time of lay-off, I was told the company could get rid of any “position”
they want to. Though this made little sense to me as a union worker, I trusted
what I was told by union officials and fellow union schedule dept. employees;
and did not grieve it.
o
I
later found out through a Union Steward’s book that “positions” are mandatory
bargaining subjects. Even with this
said, I believed that as long as my work was not being done by anybody else; I
was not being “harmed” as to constitute a grievance.
(Reference: “The Legal
Rights of Union Stewards”)
“The Schedule
Writer 1’s were laid off on August 22, 2010 by classification for fiscal
reasons not “lack of work” as described in the WWA Article 1, Section 14,
Paragraph 1 Layoff.”
·
In
Ohio, an arbitrator reinstated all full time dispatchers, where the entire unit
was
furloughed
for fiscal reasons, but only two police officers and two firefighters were laid
off. Because the officers assigned to replace the dispatchers earned more,
there was no financial justification for singling out the dispatchers for
furlough.
An
arbitrator rejected the ploy, finding that the city violated the bargaining
agreement. He ordered the city, prospectively and retroactively, to pay to the
replacement firefighters the same pay and benefits given to Reno firefighters,
and to require those firefighters to join.
(Reference AFF
Local 731. City of Reno and IAFF Local 731, 101 LA (BNA) 126 (1993).
The above
example shows past practice does not allow for an actual contract to be broken.
·
Like
these firefighters, I plan on amending my grievance to include back pay and
benefits (paid
holidays unable to take off as an Operator, etc), from the time the grievance was first
denied.
“Prior to the
SW1’s being appointed in 2007, the SW2’s and other staff had a past practice of
performing field work and making operator contacts. The work has not been
exclusive to the SW1’s.”
·
As
I stated in the pre-filing. I have a written job description that supersedes
“past practice.” The lower seniority SW2 was not in the department prior to all
three of the SW’1s being hired. Again, having non-union members doing laid off
union members work, is unacceptable as well.
A Definition of Past Practice….
·
Past
Practice- A consistent action or behaviors with respect to an issue over time
such that employees, the union and the employer come to recognize the practice
as the standard. A past practice,
however, cannot supersede clear contract language regarding the issue.
Past practice is used by arbitrators to interpret ambiguous contract language.
I would be amazed
to know if you found any Operators who would remember SW2’s and/or scheduling
dept. coming into the garages or seeing them out in the field on a regular
basis; prior to the SW1’s being hired. They may remember one specific
schedule writer, but not any of the current ones (prior to 2007).
I contend that my job description is very
clear. In the case(s) it is not….past practice will present
itself as well (day
to day work for SW1’s).
If the work
in that job description needs to be done, then Schedule Writer 1’s need to be
returned to work ‘as the need for their classification….permits.’
As long as
there are lower seniority employees in the Planning/Scheduling Dept….all three
SW1’s would have to be returned. As that would be “in order.”
The arbitrator noted:
“A lack of funds was the very reason for the reduction in force
... [and] any reasonable interpretation of ‘lack of funds’ must include a
fiscal crisis of the type in the within proceedings. ... The City’s contention
that [the contract] permits patrol officers to sit [at a] desk as long as no
one officer does so for over four hours, is also without merit. ...“Job
security is an inherent element of the labor contract, a part of its very
being. ...
The transfer of work
customarily performed by employees in the bargaining unit to others outside the
unit must therefore be regarded as an attack on the job security of the
employees whom the agreement covers and therefore on one of the contract’s
basic purposes.
“Moreover,
while layoffs were necessitated by the City’s fiscal crisis, the
decimation
of the Dispatcher Bargaining Unit, under the pretext of saving money, is
questionable. Patrol Officers, by and large, are paid more than Dispatchers.”
(Reference:
City of Fostoria, Ohio and Ohio PBA Dispatchers Unit, 117 LA (BNA) 1093,
AAA Case #53-L-390-001712 (Lalka, 2002).
The
above Arbitrated case is much like this grievance in several ways.
·
To
claim that SW1’s laid off strictly because of fiscal reasons, and not for “lack
of work,” as the contract requires, makes little to no sense if they are paying
a lower seniority SW2 more money to do the same work of a SW1. As stated in
pre-filing conference….SW1’s could be trained to write simple schedules (and
would make less money doing so).
·
Showing
that SW2’s and other staff have past practice of doing a SW1’s work is much
like the above company showing that even the contract allowed the police
officers to do desk duty. The Arbitrator stated that this was without merit because ...“Job security is
an inherent element of the labor contract, a part of its very being. ...
·
When
the above case states “the transfer of work customarily performed in the
bargaining union to others outside the unit must therefore be regarded as an
attack on the job security”…likewise, non-union members (i.e. planners) should
definitely not be doing the work of SW1’s.
Other
Arbitrated case examples comparing to Grievance #8098….
·
An
arbitrator ruled that a county violated the bargaining agreement, by assigning
207
bargaining-unit work to a non-unit employee in order to lay off two unit
employees, and redistributing those job duties to non-unit employees. (Example: planning
mgt. possibly planners)
(Reference: Lawrence County and C-8,AFSCME
L-3319, FMCS #00/14501 & 00/14499, 115 LA (BNA) 789 (Imundo, 2001).
·
An
Ohio arbitrator ordered a sheriff to rehire three deputies who were laid-off
for financial reasons. The county commissioners failed to justify a budget cut,
and sheriff was using special deputies to perform the work of laid off
bargaining unit members.
(Reference: Jackson Co.Sheriff and FOP, FMCS
Case #01/16348, 116 LA (BNA) 1753 (Kindig, 2002).
·
The
City of Reno, Nev. removed a fire company from station 7 and replaced it with
an engine company from a neighboring fire protection district. None of the
replacement firefighters were members of the city’s IAFF local and the
arrangement was unilaterally imposed during the term of the existing contract.
Members of the fire district company were also required to respond to calls
within the city limits. The city
attempted to justify the change by citing a preexisting emergency aid agreement
with the fire district.
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