August 2004 Legal Update

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

STOBER VICTORIES HIGHLIGHT NEED TO KNOW CBA

This month, let's take a look at a recent arbitration decision that once again emphasizes the protections that CSEA members have under the Collective Bargaining Agreement. In this particular case, a long term part time employee of the Sheriff's Department was called into the Deputy Undersheriff's office and told that he was terminated. At the meeting the employee was given a letter clearly stating that he was terminated. In fact, every communication prepared by the County stated that the employee was terminated.

The employee then immediately filed a grievance alleging that the County had violated his rights under Section 10 of the Collective Bargaining Agreement in that he was never served with disciplinary charges and that he could only be terminated for misconduct or incompetence, neither of which occurred in his case.

At the step two hearing the Director of Labor Relations claimed, for the very first time, that the employee had been laid off instead of terminated. The employee then amended his grievance to allege the County violated Section 14, the layoff section as well in that the County did not follow the procedures called for prior to a layoff.

The case then went to arbitration. At the Arbitration the County could not offer any evidence to show that the employee's termination was a layoff. It was also uncontroverted that the employee was never served with disciplinary charges.

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.

This decision once again confirmed what should have been obvious, that is, that employees covered by the CSEA contract who have disciplinary protection cannot be terminated without following the procedures of the CBA.

In this case, the County is going to owe the employee over a year's worth of back pay because they failed or refused to follow the procedures in the Collective Bargaining Agreement.

Therefore, an employee who should not have been terminated and did not deserve to be terminated has been reinstated by an arbitrator on the panel and the County now faces a substantial back pay obligation.

The point to remember is that anyone who is notified that they are being terminated needs to immediately contact the CSEA because if, as in this case, the County violates your rights, vindication will be had.