Guild UFCW News
July 19, 2000
Arbitrator Rules that Discharged Guild Member Has Contract Protection Under OPEIU Local 2
In a July 10 arbitration decision, Arbitrator Nicholas Zumas ruled that a Guild member promoted from a Local 2 position into a Guild position retained Local 2 contractual rights when UFCW "reached back" into alleged misconduct in her Local 2 position job as a basis for termination from UFCW employment.
The grievant, continuously employed by UFCW since August 1997, was promoted from a GOC III position to a Guild Secretary Grade 2 position in October 1999. In November 1999, UFCW terminated her to the street, as though she were a new UFCW employee on probation.
Both the Guild and Local 2 filed grievances, but the UFCW informed the Guild that the grievant was terminated during a probationary period and had no recourse under either union's contract. Eventually, UFCW agreed to allow an arbitrator to determine under which contract, if any, the grievant retained contractual rights.
During the May 15th arbitration, the Guild argued that the employee was not a "new" employee within the meaning of Article 5 (Probationary Period and Discipline). Seniority is defined as continuous and uninterrupted service with the UFCW (Article 4) and the grievant brought with her to her Guild position all benefits and rights due to an employee at her seniority level.
UFCW did not tell the grievant during the job bidding process that she would lose those (or any other) seniority driven benefits, or that she would be considered a new "at will" employee-subject to termination to the street-during her three months probationary or trial period (UFCW uses the words interchangeably, though the Guild contract differentiates between them).
The Guild argued that the grievant was in a "trial" period, as described in Article 6 (Filling of Vacancies), section 6. An employee who fails the trial period is returned to his or her prior (or comparable) position without penalty. The grievant was not charged by UFCW with any misconduct in her Guild position, and did not fail the trial period. UFCW did not have an unlimited right to discharge.
UFCW argued that the grievant voluntarily left her position in the Local 2 unit, and lost any rights under that contract. She became a "new administrative and support employee" and was, therefore, on probation, and subject to discharge without recourse to grievance and arbitration.
Arbitrator Zumas concluded that the grievant, continuously employed at UFCW, had no reason to believe she would be stripped of all job protections when promoted into the Guild unit.
"The fact that an employee is no longer employed under a collective bargaining agreement does not result in a forfeiture of the employee's vested or accrued right under that agreement. Once grievant completed the probationary period under the Local 2 Agreement, she had a vested right to job security protections under that agreement."
And, once she filed a grievance over her discharge, she triggered those rights under the Local 2 contract. The grievant, now, will have her grievance heard on the merits at an arbitration hearing under the Local 2 just cause provisions.
The decision assures that Local 2 unit members who promote into Guild positions will not be considered as "new" employees if they have served their Local 2 probation.
Newspaper Guild, Local 32035 TNG-CWA, AFL-CIO/ 1100 15th St., NW, Suite
350 Washington, DC 20005/ 202-785-3650 /Fax: 202-785-3659
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