OPINION AND AWARD

In the matter of Arbitration

Between 

Scioto County Joint Vocational School Teachers Association (OEA/NEA)
And
Scioto County Joint Vocational School Board of Education

Regarding

Charity Crabtree, Grievant
AAA Case Number 390 00440 04

 

APPEARANCES:

FOR THE BOARD:

Donald C. Scriven, Esq.
Scott, Scriven & Wahoff LLP
50 West Broad Street
Columbus, Ohio 43215-5914

FOR THE GRIEVANT:

Jerry L. Buckler, Esq.
Buckler, Tieman & Sayre
531 6^th Street
Portsmouth, Ohio 45662

Jane A. Currey
Labor Relations Consultant
Ohio Education Association
14074 US 23 North
Waverly, Ohio 45690

            An arbitration hearing was conducted on October 20, 2004 and December 17, 2004 at The Ramada Inn, Portsmouth Ohio. A record of the proceedings was prepared by Armstrong and Oakley Inc., Columbus, Ohio.

            The matter came to arbitration as the result of a grievance filed by Charity Crabree regarding the non-renewal of her limited teaching contract.  In that grievance Mrs. Crabtree asserts (a) “violation ‘misintrepetation’ (sp), or misapplication of Article 6 Fair Dismissal Policy and any other relevant provisions of the collective bargaining agreement between the parties.”

            The relief sought was: “That the grievant be reinstated to her position of Cosmetology Instructor, that the grievant be awarded a five year contract pursuant to article #36 Teacher Contracts; that the grievant be awarded all monies still owed for any classes that have been required to achieve this five year contract.  The grievant be reimbursed for premiums paid for any and all health, life, dental, prescription and vision care.  That she be reinstated at the proper salary step and column and receive back pay, that all sick leave be reinstated and in addition to any sick leave and personal leave that she should have accrued while not employed at the Scioto County Joint Vocational School, that she receive back pay for sick leave or personal leave that accrued dealing with January 8, 2004.  That the grievant be made whole for all contributions to the State Teachers Retirement System and that the Scioto County Joint Vocational School Board of Education pay both her contribution and their contribution to the State Teachers Retirement System, that the grievant be reimbursed for all attorney fees, that the grievant be permitted to attend all Skills-USA, SOC Staff meetings and conferences as professional leave, and that the grievant receive all emolument and benefits as to be made whole.”

            The parties presented two issues for determination.  While the parties did not joint stipulate the issues, the arbitrator states them in the follow manner: 

            The first is stated: Was the grievance timely filed at step 3? 

            If the arbitrator finds the grievance to be timely, then the issue might be stated as: Was the non-renewal of the grievant’s limited contract a violation of Article 6 of the Collective Bargaining Agreement?  If so, what shall the remedy be?

            During the course of the two day hearing the Arbitrator heard from a total of fourteen witnesses.  Both parties were given full opportunity examine and cross examine witnesses, offer documentary evidence and argue their respective positions verbally and in writing.  This opinion and award is based solely on the evidence presented, a review of the five hundred fifty pages of transcript and the briefs of the respective parties.

Relevant Provisions of the Collective Bargaining Agreement

ARTICLE 6 FAIR DISMISSAL POLICY

6.1  Termination of Contract

Termination of Bargaining Unit Member's contract shall be according to Section 3319.16 and related provisions of the Ohio Revised Code.

6.2 Non-Renewal of Regular Limited Contract

1.  Non-renewal of a Bargaining Unit Member's regular limited contract, if the Bargaining Unit Member has more than three (3) years of service in the District, shall be for just cause and be due to a Bargaining Unit Member's lack of ability or low degree of professional competency as determined from formal evaluation under the evaluation procedure appearing in Article 8 of this Agreement. A challenge to such non-renewal may be made exclusively under the terms of the grievance procedure appearing in Article 7 of this Agreement, and the procedures appearing in Section 3319,11 (G) of the Ohio Revised Code shall not apply.

2.  Non-renewal of a Bargaining Unit Member's regular limited contract, if the Bargaining Unit Member is completing his/her first, second, or third years in the District, shall be in accordance with Sections 3319.11 and 3319.111 of the Ohio Revised Code using the evaluation procedure appearing in Article 8 of this Agreement.  A challenge to such non-renewal may be made exclusively under the terms of Sections 3319.11(0} and 3319.111 of the Revised Code, and the terms of the grievance procedure appearing in Article 7 of this Agreement shall not apply.

3.  For purposes of Paragraphs 1 and 2 above, a "year of service" means a school year in which the Bargaining Unit Member works at least one hundred twenty (120) days under a regular limited contract.

4.  Reasons for non-renewal of a Bargaining Unit Member's contract shall be clearly stated and given, in writing, to the Bargaining Unit Member by the Associate Director-Secondary or Superintendent.

6.3  Fair Dismissal Procedure

1.  A full written record of evaluation of a Bargaining Unit Member's professional service shall be maintained (prior to any action or dismissal or reprimand or discipline). Copies of such information shall be available to the Bargaining Unit Member upon written request.

2.  Formal reprimand or discipline of a Bargaining Unit

Member by an administrator for alleged violation of Board regulations or regarding professional performance or conduct shall, upon request of the Bargaining Unit Member, be in the presence of a member representative of the Association and shall be for just cause.

3.  Grounds for dismissal shall be clearly defined and given to the Bargaining Unit Member in writing with notification of the Board's intent.

4.  Termination notice shall be in accordance with ORC 3319.16.

5.  A Bargaining Unit Member so notified shall have the opportunity to appear before the Board to respond to the allegations prior to official Board action.  This meeting shall be in executive session or public at the Bargaining Unit Member's discretion.  The Bargaining Unit Member may have a representative of his/her choice to help represent him/her at this meeting with the Board.

ARTICLE 7 GRIEVANCE PROCEDURE

7.1  The Board recognizes that in the interest of effective personnel management a procedure is necessary whereby its Bargaining Unit Members can be assured of a prompt, impartial, and fair hearing on their grievances.

Such procedures shall be available to all Bargaining Unit Members and no reprisals of any kind shall be taken against any Bargaining Unit Member initiating or participating in the grievance procedure.

The primary purpose of this procedure shall be to obtain, at the lowest administrative level and in the shortest period of time, equitable solutions

to grievances which may arise from time to time. Both the Board and the Association agree that grievance proceedings shall be handled in a confidential manner.

A grievance is an alleged violation, misinterpretation, or misapplication of (1) this Agreement; (2) individual employee contracts; and (3) established Board policy.

7.2  General Provisions

1.  An individual grievance shall be initiated by the person aggrieved.

2.  A group grievance may be initiated by the Association on an alleged violation that effects one (I) or more Bargaining Unit Members.

3.  An alleged violation should be first discussed informally with the appropriate administrator prior to initiation of the grievance procedure.

4.  A grievance shall be reduced to writing and include:  (a) the alleged violation, (b) relief sought; and (c) date of initiating the procedure.  This form shall be presented to the Grievance Committee of the Association for discussion before going to Level I,

5.  The Association shall be available to assist any Bargaining Unit Member in preparing the information necessary to expedite the procedure.

6.  Time limits given shall be considered as maximum unless extended by mutual written agreement.

7.  Failure of the aggrieved to proceed within the specified time limits to the next level of the procedure shall mean the grievance has been resolved by the recommendations stated in the previous level.

8.  A day shall be a school day during the regular school year.  A day shall be a weekday (Monday through Friday) during summer vacation.

9.  Failure of the Administration or Superintendent to respond in the time limit stated (5 days) at Level I, Level II or Level III shall mean the grievance will automatically move to the next higher level.  If there is no response within seven (7) days, the grievance will be granted, with the understanding that any dispute over the appropriateness of the requested remedy will be promptly submitted to arbitration under Level IV of the grievance procedure for resolution.

10. When it has been determined by the supervisor that the subject is not within his realm of responsibility or control, the grievance may be initiated at Level II.  The supervisor who makes this determination shall make written notice to the aggrieved and to the Superintendent within the allowable time limits of Level I, stating that the subject is not within his realm of responsibility or control.

11.  Resolution of a grievance at any level shall apply to the stated grievance and shall in no way infringe on the statutory obligation or other policy of the Board.

12.  Nothing contained in this procedure shall be construed as limiting the individual rights of a Bargaining Unit Member having a complaint or problem to discuss the matter informally with members of the Administration through normal channels of communication.

13.  Nothing contained in this procedure shall be construed as limiting the rights of a Bargaining Unit Member from using other professional or legal rights in resolving a complaint or problem.

14.  The Association shall represent the aggrieved (unless the aggrieved chooses not to be represented in accordance with Section 4117.03 of the Ohio Revised Code) and shall be present at all grievance meetings.

15.  The Superintendent may at his/her discretion issue a waiver of levels if he/she determines that the level of authority is beyond Level I or II.

16.  The grievance procedure shall accelerate to Level IV whenever a grievance is filed pertaining to reasons for a Reduction in Force.

7.3  Level I - Administration

A copy of the written grievance shall be submitted to the supervisor within twenty-five (25) days of becoming aware of the alleged violation.

A meeting shall be mutually agreed upon between the aggrieved and the supervisor within five (5) days of the filing of the grievance.  Either the aggrieved or the supervisor may have present such people who may provide information related to the grievance.  Discussion at this meeting shall be confined to the issues as stated in the grievance and the relief sought.

Within five (5) days of the meeting, the supervisor shall provide the aggrieved with a written response stating his/her position and suggestion(s) for resolution of the grievance.

7.4  Level II - Superintendent

If the aggrieved is not satisfied with the response in Level I, he/she may within five (5) days of receipt of the response, submit the grievance to the Superintendent and request a meeting to discuss the grievance.  The meeting shall be within five (5) days of the request. The meeting shall be conducted in a manner as stated in Level I.  Within five (5) days of the meeting, the Superintendent shall provide the aggrieved with a written response stating his/her position.

7.5  Level III - Board

If the aggrieved is not satisfied with the response in Level II, he/she may, within five (5) days of receipt of the response, submit the grievance to the Board Treasurer and request a meeting to discuss the grievance.

The meeting with the Board shall be held no later than the next regular Board meeting, or the aggrieved may request and be granted a special board meeting.  Such grievance meeting shall be held in executive session, but the grievance shall be acted upon only in public session. The Board Treasurer shall make written notification (by hand delivery or certified mail) to the aggrieved of the time and place of this meeting with the Board as soon as possible.  Within five (5) days of this meeting the Board President shall provide the aggrieved with a written response stating the Board's position.

7.6 Level IV - Arbitration

If the aggrieved is not satisfied with the response in Level III, he/she may within five (5) days of receipt of such written response make written request to the Board and the Association that the grievance be submitted to arbitration.

If the Association agrees that the grievance should be arbitrated, the arbitrator shall be selected from the American Arbitration Association according to its Voluntary Labor Arbitration Rules.

The ruling of the arbitrator shall be final to the limit of the grievance as stated.

Cost of the arbitrator shall be shared equally by the Association and the Board.

BACKGROUND

            The Scioto County Joint Vocational School serves junior and senior level high school students from  Scioto County, Ohio.  The grievant has been employed at the school for approximately five years as a cosmetology instructor.

            During her period of employment she received good evaluations from her immediate supervisor.  During her years as an instructor she was involved in a student organization called VICA. [1] 

            In late 2003 she requested professional leave to attend a VICA meeting Columbus on January 8 & 9, 2004.   Her leave was not approved.  She attended on January 8 and 9 (January 9 turned out to be a day in which school was closed due to a snow emergency). 

            Her two year limited contract was not renewed due in large measure to the interactions surrounding the investigation of the circumstances relating to this leave.

POSITION OF THE BOARD

            It is the position of the Board of Education that this grievance is not arbitrable.  The Collective Bargaining Agreement is very clear.  Article 7 states: : “If the aggrieved is not satisfied with the response in Level II, he/she may, within five (5) days of receipt of the response, submit the grievance to the Board Treasurer and request a meeting to discuss the grievance.”

            The grievance was filed on the sixth day, In the Board’s post hearing brief it is noted that the negotiators of the Collective Bargaining Agreement “took special pains to be crystal-clear as to how seriously these timelines must be taken.”

            The language of this agreement provides for extensions by mutual written agreement but otherwise the time limes are considered as maximum.

            The Board notes that the agreement provides significant consequences if the Board or its agents, violate their time restrictions.  Section 7.2, paragraph 9 states such action will “automatically take the grievance to the next level except that, if the response is more than two days late, the grievance will be granted.”

            The Board consistently maintained its position that the grievance was not timely filed.

            The Board notes that the grievant has not addressed this asserted procedural flaw until the beginning of the arbitration hearing.

            While the Board believes the grievance is not timely filed and therefore this grievance is not arbitrable, they also believe there is more than enough evidence to support just cause for the non-renewal of Mrs. Crabtree’s limited contract.

            The Board notes that the grievant requested Professional Leave for January 8 and 9, 2004 to attend the annual 2-day planning conference for VICA in Columbus by having her immediate supervisor Ralph Madden fill out a form in late December requesting professional leave.

            The Board notes that there is a four part approval process for professional leave.  In addition to the immediate supervisor, the form must be approved by the Secondary Associate Director, the Vocational Director and the Superintendent.  They note the leave is not approved until all four officials have approved it.

            The Board acknowledges that Mrs. Crabtree had attended similar planning meetings in the past but notes that she, nor any other employee, has any vested right to continuing approval.

            The Board notes a number of reasons why the leave for 2004 was not approved.  These include the fact Mrs. Crabtree’s attendance at the conference was not required and that another teacher from the district was present.  They note the difficulty in securing substitute cosmetology instructors and the ongoing absenteeism of the second cosmetology instructor due to illness.

            It was the view of three of the four administrators involved that it was more important for Mrs. Crabtree to be in the classroom instructing students.

            The Board contends the grievant was “specifically informed on Tuesday, January 6, that her request for leave was disapproved.” (Board of Education Post Hearing Brief, page 9).

            The Board offered testimony through Director Denning that he informed her of the denial in conjunction with a faculty meeting on January 6.  Supervisor Madden testified that he had confirmed the disapproval twice on January 6.

            The Board recites what they believe to be a pattern of lying on the part of the grievant regarding her actions on January 7, 8 and 9.

            Lisa Thompson, secretary in the Student Services office, who coordinated the securing of substitute teachers, testified that the grievant called her to inform her of the need for a substitute.  During that conversation the grievant indicated she did not know if her professional leave was approved but if it was not she would go to her Doctor and get an excuse.

            Next, Ohio SkillsUSA (formerly VICA) Director Michael Cowels testified that Mrs. Crabtree was present in Columbus on both January 8 & 9

            Supervisor Madden testified that he played his voice mail on January 8 and found a message from the grievant indicating she was “sick” but did not indicate where she was when she called.  He went on to testify that on January 9 he went to his office even though school had been cancelled due to snow.  While there he received a live phone call from the grievant asking him to fill out a personal leave form for the previous day.

            Superintendent Wells learned that the grievant had called in sick on January 8 and was in Columbus at the VICA Conference.  He called her in for a conference, along with her association representative, on January 20.  At that meeting the Superintendent testified that he asked Mrs. Crabtree to substantiate her claim of illness.

            Mrs. Crabtree later provided a note dates January 21 signed by Dr. Mynes that read “Please excuse Mrs. Crabtree 1/8/04.  She was ill and under our care.”

            Mr. Wells telephoned the Doctor who indicated that he had not personally seen the grievant on January 8 or 9.

            The Board notes that during the testimony of Dr. Mynes, he admitted that he did not see the grievant on either of the days in question and that he did not know she was in Columbus attending a conference on those days.

            The Board argues that the superintendent determined to non-renew the grievant rather than outright termination “as a favor to the grievant. He (Superintendent Wells) was very much aware that non-renewal carries less of a stain and stigma with respect to the person’s future career.” (Board’s brief, page 17).

            The Board notes that the decision to non-renew Mrs. Crabtree was not based on any claim of incompetence in her teaching. Rather she was non-renewed based on serious lapses in professional competence.

            The Board also notes that the standard for non-renewal of a person of Mrs. Crabtree’s service is the same just cause standard as would have been used in outright termination.

            The Board concludes by arguing that this employee, because of what they view as her ongoing dishonesty, could not resume an effective working relationship if she were reinstated.  They cite numerous prior arbitration cases wherein arbitrators have fashioned a remedy other than reinstatement if they found that just cause did not exist to support the action.

POSITION OF THE GRIEVANT

            Not surprisingly, the grievant, through her counsel, views the situation from a very different perspective.

            They note the grievant was “highly touted by her immediate supervisor” (Grievant’s brief, page 2) and supported that claim by submitting numerous performance evaluations that included various positive comments and observations about her work.

            The grievant notes that on December 19 she requested professional leave to attend the VICA State Planning Meeting in Columbus.  Because the grievant had never been denied professional leave previously, she assumed this request would be granted.

            As the grievant tells the story she approached Jeff Denning on January 7 and did not receive a formal response to her request.

            The grievant testified that she called her immediate supervisor, Ralph Madden and left a voice mail that she was going to use a personal day.  She also testified that she began feeling ill about the same time.

            She testified that on January 8 she called the Lucasville Family Medical Practice and was not able to reach her Doctor.  She says she talked to the nurse.  She also testified that she had a prescription called in.

            Mrs. Crabtree recalls the meeting with Superintendent Wells on January 20 differently as well.  She says she stated she was at the State Planning Meeting and that she had requested a personal day.  Superintendent Wells, according to Mrs. Crabtree, said he understood she was sick on January 8.  Mr. Wells then wanted her to get confirmation regarding her illness on January 8. 

            On January 22, Mrs. Crabtree testified that she was advised she needed additional information regarding her illness.  She turned in a note from Dr. Mynes which stated: “Please excuse Mrs. Crabtree 1/8/04 she was ill and under our care.”  She testified that Mr. Wells still wanted additional information.

            The grievant also argued that Ralph Madden was originally assigned by the Superintendent to evaluate Mrs. Crabtree, but on February 24, Mr. Denning entered Mrs. Crabtree’s classroom to conduct her formal evaluation. The grievant notes Mr. Denning’s evaluation was very different from those she had received from Mr. Madden in the past.

            The grievant, through her counsel, argues that the reasons given for non-renewal are not valid.  They believe Mr. Denning was assigned to evaluate Mrs. Crabtree in order to support her non-renewal.

            The grievant notes that Mr. Denning did, under cross examination, admit to several positive attributes of the grievant which were not reflected in her evalution, such as working with another teacher, Mr. Holbrook to realign their curriculum and Mrs. Crabtree had worked with the administration to assist during the illness of the second cosmetology teacher, Mrs. Spittle.

            They noted that Mrs. Crabtree had worked with Mrs. Kay Lucas’s class to assist with a challenged student.  In the view of the grievant, these admissions contradict Mr. Denning’s evaluation of Mrs. Crabtree.

            The grievant argues that Mr. Wells “failure to properly approve or deny a professional leave request … caused this problem to surface.” (Grievant’s brief page 10).

            The grievant argues that Mr. Well’s admitted he denied the professional leave request “after the fact.”  They refer the arbitrator to Transcript 1, page 165 and 166.

            It is the position and argument of the grievant that the March 29 evaluation should not be considered because it is not in compliance with the terms of the Collective Bargaining agreement.  The argument is that the Teacher Evaluation Log Form must be completed and it was not.

            The grievant argues that even if the evaluation stands, no time was provided to Mrs. Crabtree to obtain assistance and to make improvements to correct her performance.

            Further the grievant argues that Mrs. Crabtree has already been administratively punished with the docking of her pay and therefore non-renewal is double jeopardy.

            In conclusion, the Post Hearing Brief of the grievant addresses the timeliness issue.  It is their argument that Mrs. Crabtree fulfilled the requirements of Section 7.5, by Mrs. Crabtree’s testimony that, within the time period, she had notified the Treasurer’s office personnel of her intent to submit the grievance.  Mrs. Crabtree stated that Mr. Butler (the Treasurer) was unavailable and that she would hand deliver the document to him.

            The grievant argues that the telephone system often did not work properly and that would account for the fact that Mr. Butler had no memory of a call from the grievant informing him that she had attempted to deliver the grievance.

            In conclusion the grievant and her representatives argue that Charity Crabtree was an excellent instructor and that she did not lie regarding these events. 

DISCUSSION OF THE THRESHOLD ISSUE

            The parties submitted to the arbitrator the determination of the arbitrability of the grievance.  Therefore let us examine this issue before any consideration of the merits of the case.

            Superintendent Steve Wells denied the grievance at Level II on June 3, 2004.  The record indicates that the grievant received a copy of that response and denial on June 3 at approximately 9:50 a.m. by hand delivery of Board employees Jason McIlhenny and Crystal Chamberlain.

            The appeal to level III was submitted on Friday, June 11, 2004.

            Article 7, Section 7.2, paragraph 8 of the Collective Bargaining Agreement defines a “day” as “a school day during the regular school year.”  The period in question was during a regular school year. 

            Article 7, Section 7.5 states “If the aggrieved is not satisfied with the response in Level II, he/she may, within five days of receipt of the response, submit the grievance to the Board Treasurer and request a meeting to discuss the grievance.”

            Thus, the Board has established a prima face showing that this language was not complied with.

            The burden then shifts to the grievant to prove why the arbitrator should, (or can) find the grievant to be timely and procedurally adequate to proceed to the merits.

            Most arbitrators, this one included, are inclined to be lenient in applying timelines in the desire to decide cases on their merits especially where failure to do so may lead to harsh results. 

            Therefore numerous justifications can be considered when “looking the other way” regarding strict application of timelines.  Some of the most noted that can be raised by a grievant or representative are listed and considered in the context of this case.

            Arbitrators tend to find grievances to arbitrable even though timelines have not been strictly applied in the following situations.

1.       The violation is of a continuing nature.  (see 120 LA 999)  This is clearly not the situation in this matter.

2.       The timelines are listed in a non specific contract provision. ( see 119 LA 42)   The Collective Bargaining agreement in this situation is very specific.

3.       The opposing party does not raise an objection to timeliness until the matter reaches arbitration.  (See 118 LA 1419)  The Board Treasurer noted the belief that the grievance was not timely filed immediately and the Board retained that argument in all future communications.

4.       Both parties fail in their obligations to strictly abide by the timelines and accompanying requirements. (See 116 LA 288).  This arbitrator in 118 LA 1764 (Elkart County Transportation Department) found the grievance arbitrable when management failed to properly document service and delayed in responding to the Union regarding efforts to fulfill a mediation section of the agreement.  In this case there is no evidence that management failed to fulfill their timeliness requirements.

5.       The parties have established a pattern of ignoring timelines. (see 108 LA 333)  In such cases it is incumbent on the grievant and her representative to provide evidence that there have been other cases where timelines have been ignored.  No such claim or evidence was advanced in this case.

6.       The employer’s representative verbally waives the timeline requirements. (See 100 LA 866).  No such claim has been advanced in this case.

7.       The grievant or representative are somehow prevented from timely filing. (see 114 LA 1196)

            Grievant Crabtree would have this arbitrator believe that she attempted to deliver her

       grievance to the Treasurer on June 10 and that she left a voice mail on the Treasurer’s telephone on the evening of the tenth. 

                        The Treasurer testified that he received no such voice mail.

      The grievant’s explanation is that the telephone system often malfunctioned.

                        The determination regarding this assertion then comes to a judgment on the credibility of the grievant’s testimony and, if that testimony is found to be credible, is that adequate to waive the timeliness requirement.

                        While the merits of the grievance are not under discussion at this time, an examination of the total record in this case is instructive to the arbitrator in determining credibility.

                        In weighing credibility this arbitrator looks for inconsistencies, contractions and differences from the testimony of other witnesses. 

                        To believe all of Mrs. Crabtree’s testimony in this matter, this arbitrator would have to disbelieve parts of the testimony of four or five other witnesses.

                        Thus, I have great difficulty believing that Mrs. Crabtree was totally accurate in her recitation of the facts surrounding her efforts to timely file her grievance with the Treasurer or even her attempts to contact him.

                        Even if her version is totally accurate, nothing prohibited her from filing the grievance with the Treasurer prior to the last minute or with another person in the Treasurer’s office.

                        Arbitrator Lawrence Oberdank was faced with a similar situation in a Painesville (Ohio) Township case.  He wrote these very instructive words:  “The procedural issue raised by the employer must be addressed before any consideration is given to the merits of the dispute.  Arbitrators are reluctant to dismiss disputes on procedural grounds but, as I have said in the past, time limits are a fact of life in industrial relations and strengthen the bargaining relationship between the parties by encouraging disputes to be brought forward when they occur and processed in an expeditious fashion.  They add finality to the collective bargaining process by ensuring that the parties will not have to waste time or financial resources on stale claims.  As much as the Arbitrator may want to decide the issues on the merits, he must refrain from doing so when the dispute is not timely.  The language of step three of the grievance procedure is clear and unambiguous in my judgment and lends itself to only one interpretation.” [2]

                        Arbitrator Lionel Richmond in a UCLA case holds to the same principle when he states: “The Grievance and Arbitration Provisions of the Collective Bargaining Agreement show a carefully crafted, multi-step procedure for the hearing of Grievances, their resolution, and appeals to arbitration.  While there is some decisional law which indicates that timeliness defenses are not favored, since they involve a forfeiture, this Arbitrator joins those who find the time limits, set forth in a collective bargaining agreement for the processing for Grievances, are entitled to the same respect as any other provision of any contract.” [3]

                        Arbitrator Richmond goes on to cite Arbitrator Herbert in Textile Paper Products, Inc. (51 LA 384) where he states: “despite the general arbitral view favoring resolution on the merits, specific time limits clearly set forth, and adhered to by the parties in the past, cannot be ignored, regardless of the harsh result.”

                        In a very difficult case, Arbitrator Martin Soll found that he lacked authority to hear a grievance on its merits even when the failure of timely filing rested with the Postal Service.  He concluded: “Without doubt, AFSCME did everything reasonably possible to timely submit H’s appeal of his reprimand to Step 3.  Indeed, its return to the Union’s offices on April 14 for postage due was clearly extraordinary and unforeseen by all.  Nonetheless, the grievance must be denied because the undersigned has no authority to grant the relief requested.” [4]

                        The authority of an Arbitrator rests in the Collective Bargaining Agreement.  Great deference must be given to its terms.  To do less weakens confidence in the collective bargaining process.   

                        For whatever reason, the grievant did not file her step 3 appeal within the timelines specified in the collective bargaining agreement, and failed to establish a justifiable reason that would allow consideration of the grievance on its merits. 

                        Under such circumstances I do not have authority under this Collective Bargaining Agreement to consider this case on its merits.

DECISION AND AWARD

                        Because this grievance was untimely filed, the grievance is denied.

Issued this 29^th day of March, 2005 at London, Ohio

_____________________________ 
N. Eugene Brundige, Arbitrator

---