October 2004 Legal Update

COUNSEL'S CORNER
By: Louis D. Stober, Esq.
CSEA REGIONAL ATTORNEY

LIGHTENING STRIKES TWICE!

Recently, I brought to your attention an important arbitration decision finding that a long time part time employee in the Sheriff's Department who was terminated without affording him any rights under Section 10 of the CSEA/County Collective Bargaining Agreement.

The employee immediately filed a grievance and the case went to arbitration.

The arbitrator held: "The County admitted that it did not follow the provisions of Section 10 because it claimed that doing so was unnecessary since the Grievant had not been disciplined but had been laid off and, therefore, there were no charges to serve him with… There is no evidence to support the County's contention that the Grievant was laid off and not terminated. In fact, if the County had intended to lay off the Grievant, it has failed to comply with the contractual requirements for the layoff of an employee as outlined in Section 14 of the Parties' CBA…The County violated the terms of the Parties' CBA, specifically, Section 10, when it terminated the part-time employment of the Grievant … The Grievant shall be reinstated and reimbursed all back pay and any benefits lost from the date of the termination of his part-time employment … to the date of his reinstatement."

Now, just four months later, a second arbitrator, Howard Edelman, hearing a nearly identical case in the Department of Social Services has re-confirmed the fact that employees cannot be terminated without affording them Section 10 rights.

In sustaining the grievance, Arbitrator Edelman held: "The facts of this case fall squarely within the case decided by Arbitrator Germano, I find. A different result here would be harmful to sound labor relations and encourage arbitrator shopping. Such a result is to be avoided.

Nor can it be said that Arbitrator Germano's determination was so palpably erroneous that it should be ignored. To the contrary, the reasoning therein makes perfect sense and should be followed here. I am convinced.

Given this determination, it is clear that the Union's grievance must be sustained."

With this decision the County has been put on notice not once but twice that terminations of CSEA members without following the requirements of Section 10 will not be tolerated by the Arbitrators on our panel.

In this case, like the prior case, the County is going to owe the employee nearly two years' worth of back pay because they failed or refused to follow the procedures in the Collective Bargaining Agreement.

Your disciplinary rights are there for a reason. Make sure your rights are adhered to whenever the County seeks to take action against you.