Commonwealth of Pennsylvania and AFSCME Council

1. In the Lesson 13 folder are selected provisions from the 2007-2011 contract between the Commonwealth of Pennsylvania and AFSCME Council 13. To help you become familiar with the layout and wording of a typical public sector labor agreement, answer the following questions:

a. Does this contract have a union-security clause? If so, what type (give the Article and Section number)? Yes, Article 3 Section 1 Agency Shop or Fair Share

b. How long is the meal period granted to each employee (give the Article and Section number)? The meal hour granted to each employee shall not exceed 1 hour, Article 8 Section 1

c. Is Easter a recognized holiday in this contract? No. Article 10 Section 1

d. How much does an employee covered by the contract get paid for working on a recognized holiday (give the Article and Section number)? If a permanent full‑time employee works on any of the holidays set forth in Section 1 of this Article, except the day after Thanksgiving, the employee shall be compensated at one and one‑half times the employee's regular hourly rate of pay for all hours worked on said holiday. The employee shall receive paid time off for all hours worked on a holiday up to a full shift. Article 10, Section 6

e. Does an employee need a note from a doctor for two days consecutive absence due to illness (give the Article and Section number)? . For absences of less than three days, a doctor's certificate may be required where the Employer has reason to believe that the employee has been abusing the sick leave privilege. Article 14 Section 3

f. How many days of vacation does an employee with ten years of seniority working a 40-hour week receive? 15 days Article 13 Section 1

g. How much above the normal pay rate does an employee covered by the contract get for working a 3-11 p.m. shift (give the Article and Section number)? An employee whose work shift consisting of 7 1/2 or 8 work hours on a scheduled work day begins before 6:00 a.m. or at or after 12:00 noon will be paid a shift differential of $1.00 per hour for all such hours worked on that shift. Article 21, Section 1

h. In what part of the contract does it state that employees can only be disciplined for just cause (give the Article and Section number)? Article 28 Section 1

i. How are arbitrators chosen under this contract?

The arbitrator is to be selected by the parties jointly within seven working days after the notice has been given. If the parties fail to agree on an arbitrator, either party may request the Bureau of Mediation to submit a list of seven possible arbitrators. Article 37 Section 2 Step V

j. List the management representative involved at each of the first four steps of the grievance procedure. Step I Immediate Supervisor, Step II head of the employee's division, bureau, institution, or equivalent organizational unit, Step III The agency head, or designee, Step IV the agency head or the appropriate designee

2. After reading the arbitration decision in the Lesson 13 folder, answer these questions in a two to three page essay:

a. What is the issue upon which the arbitrator must decide? Did the City violate the provisions of the collective bargaining agreement between the parties when it discharged a police officer on April 6, 2007”? If so what shall be the appropriate remedy therefore?

b. What was the arbitrator's decision?

The city did violate the provisions of the collective bargaining agreement between the parties when it discharged the police officer on April 6, 2000. The City is ordered to reinstate the grievant as of April 6, 2000, and make him whole again, with full back pay and allowances, minus any earned income received since that date, minus any Unemployment Compensation received while off work. Any records held by the City, in regard, or respect to the incident with which the Grievant has been charged, shall be stricken from the Personnel Records of the City. And of the Grievant. The Grievant personnel record shall be cleared of any information that would be derogatory to his time with the Department, and no allegation made by the City should ever be used against the Grievant at any subsequent hearing.

c. Do you agree with the arbitrator's decision? Cite your reasons as to why you agree or why you do not.

Yes, I believe that I would have to agree with the decision handed down by the arbitrator. First and foremost the arbitrator clarified the standard which the employer must meet when undertaking an adverse personnel action, such as a termination as was the case here, for employees covered by a collective bargaining agreement. The City argues for a variety of reasons that its termination action was justified as being “for the good of the service.” The arbitrator clearly stipulates that this standard would apply to “at will employees”, who in essence serve at the pleasure of the City Manager; however, employees covered by a collective bargaining agreement are not “at will” employees but are now employees with a property right in their job, or employment. These property rights are protected by applicable State law and cannot be taken from them without due process of law, which requires that the employer have just cause for the discharge of a covered employee. In examining all aspects of the record looking for the tenets of just cause the search of the arbiter was wanting. In examining an exhaustive listing of “Statements of Fact”, the arbiter concluded these were more mere Statement of Conclusions or Opinions of the City. Of significance was the determination of the existence or absence of any actual duty on the part of the grievant. The arbiter here made reference to the decision of the arbiter in the case of the other officer whose conduct the grievant was in the eyes of the City obliged to report. The arbiter here noted that arbitration decision of the other officer resulted in a finding of no excessive force being used in a particular altercation. The arbiter here concludes that if the other officer did not use excessive force in his efforts to subdue a prisoner, then the grievant cannot be held to have acted improperly by failing to have interceded to stop what was not excessive force , or of being guilty of any wrongdoing by not reporting the use of excessive force. Indeed the arbiter concluded that Grievant had no reason to become in the other altercation, in which excessive force was alleged, but rather was limited perhaps to assisting another officer in subduing an apparently out of control prisoner. The arbiter clearly though that the actions of the City were premature and should have been deferred until the full outcome of the other arbitration proceeding had been concluded. The City also argued that the officer was “grossly negligent and untrustworthy” for causing the video tape surveillance of the beating to go missing. In reality, the arbiter flound that grievant was working on his paperwork of the report of this incident on the night in question, that he was in the office of the Police Department a place that he should have been able to leave his work in progress and find it untouched and awaiting his return to complete it. It is unknown who might have taken the tape off of the desk of the grievant, but there is no evidence that it was actually him. The Grievant had no way of knowing that the tape could be missing in the station the next morning after the incident. In this regard the arbiter found testimony of a dispatcher not to be credible. The arbiter concluded that there was no evidence that the grievant was grossly negligent, guilty of ordinary negligence, or of even having lost the video. Finally, the City alleged that there were a series of lies from the grievant that lended credence to the City's belief that the grievant was not trustworthy. The arbiter found these allegations without substantive merit. In sum, I must agree with the finding of the arbiter sustaining the grievance, determining that the City lacked due cause to undertake the termination action, and awarding the remedy described above.

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