Stronger Together
Emergency Pay Arbitration
Full Opening Statement of SEIU District 1199 WV/KY/OH
Arbitration William Miller
February 7, 2023
“Employees not designated essential may be required to work during an emergency. When an emergency, other than a weather emergency, is declared by the Governor or designee and Administrative leave with pay is granted for employees not required to work during the declared emergency, such leave is to be incident specific and only used only in circumstances where the health or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected. Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above.”
JX-1 Article 35.01 B.
On March 2, 2020, Ohio Governor Mike DeWine declared a state of Emergency for all of Ohio. On June 8, 2021, Ohio Governor Mike DeWine rescinded this State of Emergency declaration. The time period from March 2, 2020, through June 8, 2021, was the period of time during which the declared emergency was in effect. Also, during that time, all members of the SEIU District 1199 bargaining units 11 and 12, both essential and non-essential employees of the State of Ohio, continued to work. No members were laid off. No state agency started the process of initiating a layoff. As a matter of fact, all state employees continued to work, except for those who were placed on administrative leave or some other type of contractually approved leave of absence. They worked. The language is explicitly clear, and the intent is just as obvious.
Mr. Arbitrator, the State wants you to believe that the parties contemplated that emergency pay would only be granted to any and all members working during an emergency IF one employee or multiple employees? (no one is sure) working somewhere in the state is not required to work during that emergency and is paid administrative leave to stay home. Then magically, that one instance triggers the pay for everyone working during the emergency to get paid emergency pay.
Or you could believe that the intent is to pay employees working during emergencies, emergency pay. What the State is asking you to believe is that not a single individual in the entire state workforce of 30,000 people, not one of these folks who worked during the largest pandemic our planet has ever seen, not one single person was entitled to Emergency Pay under the State’s allegation of the meaning of this language, despite Governor DeWine, and every Governor in every state declaring some sort of emergency.
This case is ridiculously simple. “Employees not designated essential may be required to work during an emergency.” This language simply permits the employer to require the employees who they had not designated as essential to work during an emergency. The State chose to exercise this right. The State has stipulated to this fact.
The Governor Declared an Emergency. The declared Emergency was for “other than weather”. The state has stipulated to this fact.
(Employees not designated essential may be required to work during an emergency… Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above.) All members of 1199 bargaining units 11 and 12 worked during the entire period of the declared other than weather Emergency, the State has stipulated to this fact as well, and pursuant to Article 35, all members should be compensated the $8 an hour stipend. It really is that clear and unambiguous. The plain, clear, simple language of the CBA does not require in depth interpretation and exploration of possible nuance and newfound “intent” from the State’s perspective. The deal was, if employees WORK during a declared non-weather Emergency, which the State has stipulated this was, then those who work would receive an additional $8 per hour for each and every hour that they worked. The State enjoyed their part of the bargain and are now asking you to relieve them of their obligation that was made in exchange for that work. “Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above.” Article 35.01 (A) above mentions ONLY a stipend of $8 an hour for all hours worked during the period of the declared Emergency. “In addition, employees who work during a weather emergency declared under this section shall receive a stipend of eight dollars ($8) per hour worked.” This is unquestionably the payment that is subsequently referred to in 35.01 B.
The State appears to be alleging 2 things-
1. That the Governor can negate the clear terms of the collective bargaining agreement even though there is express language contained in the agreement stating that he cannot.
2. The requirement to pay workers that work during an emergency the $8 per hour in emergency pay requires that the state make the unilateral determination that some employee somewhere is placed on administrative leave for not working during the emergency.
This argument is just as non-sensical as their first argument. The parties agreed to 3 ways to treat employees during an other than weather emergency. 1 is that the employees could be laid off, due to lack of work during the emergency, this provision exists in Article 29 of the CBA and the language of 35 in no way restricts that process. This did not happen. #2, the state could place employees on administrative leave with pay. This does not infer, require or in any way state that this is a prerequisite for the payment of the stipend, it simply gives the state the authority to do so, without having to go through the aforementioned layoff process. This is because layoffs take time, have required notices, under the ORC and also contain other contractual and bureaucratic red tape. To avoid this the State requested, and the Union agreed, to provide the state with the ability to avoid this process as long as the members who were placed on administrative leave were paid as if they were still working and suffered no loss. And lastly, is the option that the State exercised, the right to have the employees to continue to provide the service or the “work” if you will, that was bargained for. That’s it. There are no triggers, no reference to the Governor being permitted to avoid this option by stating his intent contrary to the parties in his Executive Order declaring the Emergency, nothing else. That was the deal, the agreement, the rules, the bargain if you will, that was struck, and that both parties consented to.
The Union will introduce, despite the State’s objections, the new language that replaced the language in place during the time period of the declared Emergency in question. The specific and deliberate changes, proposed, introduced and written by the State show explicitly the reasons why the language in effect at the time of the instant grievance does not mean what the State now claims it meant back then. There is well accepted practice that language from a successor agreement can be relied upon to determine the meaning and application of previous language. The State seeks to avoid this because this new language unmistakably demonstrates exactly that and shows that the language in the 2018-2021 contract did not have the same intent, reading or meaning as the language in the 2021-2024 contract.
The State will also attempt to introduce prior arbitration decisions on this subject that they believe should carry the day. They do not. The OCSEA and Unit 2 decisions have different language, different fact patterns, and OCSEA and Unit 2 were bound by ground rules and other nuances, stipulations and facts that are not present in any fashion in the case before you. 1199 will introduce different exhibits, facts and arguments that were not made in the other two cases. Not to mention the fact that the decision of Arbitrator Szuter, on which the state is attempting to rely, is currently before the Franklin County courts and no determination has yet been made as whether or not to vacate his award and decision. There is no stare decisis in arbitration. The Arbitrator is not bound to accept, follow or in any way give weight to these prior decisions. The Arbitrator is free to arrive at a completely contrary decision based on the facts and evidence presented to him and is in no way required to explain the other decisions or his disagreement with them.
While there is some deference given to arbitration awards and the precedential value they may provide, in the instant case, neither the Szuter Award nor the Cole award, or the Washington award can be so relied on. The facts are drastically different. The other Unions executed ground rules during bargaining that prevent them from introducing subsequently bargained language to show clarity and intent of prior language. SEIU is not bound by such commitments. The other Unions had different arguments and addressed the issue in a manner inconsistent with what SEIU believes the issue before the Arbitrator is, and therefore the prior decisions are in no way precedential or applicable and should be given no weight or consideration whatsoever. The members of the SEIU bargaining units have not had their opportunity for an impartial third party to determine if their contract was violated and therefore the previous decisions should be given no weight whatsoever.
The Union is asking the Arbitrator, what is more reasonable, what is more probable, and what is most likely to be the true intent of the parties given the plain clear reading of the language in question. The answer is just as clear. The parties undoubtedly intended for anyone who worked during a declared emergency to be compensated an additional $8 per hour. The Union is asking the Arbitrator to determine that the state of Ohio did in fact violate the contract when they failed to pay the individuals who worked during the declared period of emergency the agreed upon $8 per hour. The Union is asking the Arbitrator to issue a made whole decision in this instance, sustain the grievance in its entirety and hold the state accountable for the commitments they made to their employees.
Respectfully submitted,
Joshua D. Norris
Executive Vice President
SEIU District 1199 WV/KY/OH
Union Advocate
SEIU 1199’s Full Closing Statement
In the Matter of Arbitration Between:
The State of Ohio, EMPLOYER, and SEIU District 1199 WV/KY/OH, UNION.
Case No. SEI-2020-00848
Arbitrator: William Miller Jr.
Hearing Date: February 7, 2023
Grievant: Hanlon (Class Action)
Jointly Stipulated Issue
Did the State of Ohio violate article 35 of the collective bargaining agreement, and if so, what shall the remedy be?
POST ARBITRATION BRIEF OF SEIU DISTRICT 1199
The SEIU District 1199 Union hereby submits the following as their closing
arguments in the instant case.
APPEARANCES
For the Employer: For the Union:
Sean McCarthy Assistant Director OVH Gisela Sattler Case Manager ODRC
Venita White LRO 3 DODD Lt. Denise Henry ODRC
Chris Lambert ODRC Chief Inspector Geoff Davies Coordinator SEIU 1199
Laurie Spolarich LRA 3 ODMHAS Kristie Branch Director SEIU 1199
Chris Lambert ODRC Chief Inspector Victor Dandridge OCB (as if on cross)
Kristen Rankin Deputy Director Office of Collective Bargaining
STATEMENTS OF FACT
The grievance is properly before the Arbitrator and there are no procedural objections. State of Ohio Governor Mike DeWine declared a State of emergency on March 09, 2020, via Executive Order 2020-01D. State of Ohio Governor Mike DeWine rescinded the declared emergency on June 18, 2021, via Executive Order 2021-08D. No 1199 members were laid off during this period of the declared emergency from March 09, 2020 – June 18, 2021. No layoff process was instigated at any agency in which SEIU District 1199 represents members during the period of declared emergency from March 09, 2020 – June 18, 2021. Covid-19 was not a weather emergency. Both essential and non-essential State of Ohio employees were required to work during the period of the declared emergency from March 09, 2020 – June 18, 2021. Some members worked at home (teleworked), and some worked at their designated report in location during the period of declared emergency. SEIU District 1199 WV/KY/OH is the recognized exclusive bargaining agent for all bargaining unit members in bargaining units 11 and 12. The Ohio Rainy Day Fund balance is currently nearly $3.5 billion. The State of Ohio utilized The Ohio National guard and the Ohio State Highway Patrol to work in the institutional facilities during the period of the declared emergency. SEIU District 1199 did not execute ground rules for negotiations in 2021. OCSEA and
Unit 2 did execute ground rules for negotiations in 2021. These ground rules executed by OCSEA and Unit 2 precluded them from introducing subsequent language into the arbitration hearings in question. Neither the State nor any Arbitrator had previously heard or contemplated the arguments presented by SEIU District 1199 at hearing. There is no stare decisis in arbitration. The stipend in question is identified in the parties CBA as $8 per hour worked for all hours worked during the period of the declared emergency. No less than forty-five (45) members of SEIU District 1199 were placed on administrative leave with pay during the period of the declared emergency. Policy does not supersede contract language.
Discussion and Argument
There is no policy or mechanism to enact the stipend under the State’s theory. Again, the State claims that in order for emergency pay to be “triggered” the State would have to have put some employee, somewhere on the alleged specific kind of administrative leave set forth in Article 35. If the State believed that to be the interpretation of the language, then it would be financially prudent, if not absolutely necessary, for the State to create processes and procedures regarding the payment of emergency pay. Otherwise, the State could potentially owe workers hundreds of thousands or, in the instant matter, millions of dollars if the language means what the State says it means. Not only would one expect the State to create policies and procedures surrounding the implementation of emergency pay if triggered by the granting of this alleged specific type of administrative leave, but also that the State would have answered a few basic questions:
- How many workers would have to go on this specific type of leave before the emergency pay was triggered?
- Would one worker in the entire State be enough to trigger this provision?
a. Would it have to be work in a bargaining unit?
b. In one of the SEIU bargaining units?
c. If a worker in one of the SEIU bargaining units went on this administrative leave, would workers in the other bargaining unit get emergency pay? - Would the emergency pay be triggered for the duration of the emergency or only during the time the specific employee received this alleged specific administrative leave?
- Who would be able to approve this type of leave?
However, none of these questions can be answered by the State. In fact, it appears that the State never even contemplated these questions. When asked how many members had to be placed on administrative leave with pay before the stipend was “owed, Mr. Dandridge said that there “wasn’t a number.” Mr. Dandridge finally arrived at the speculative conclusion of ONE. Further, Mr. Dandridge, who was the lead advocate in two (2) of the emergency pay arbitration cases with other bargaining units, testified that there is no policy, practice or mechanism in place to monitor or notify anyone of if and when this supposed trigger (placement of someone on administrative leave for this specific purpose) has been pulled. Ms. Rankin testified that DAS, OCB, nor anyone in capacity to do so, provided ANY guidance or requirements in any fashion regarding this leave type, or what agencies within State government were
to do since the Governor declared an emergency.
Simply, according to their theory, the State has no idea what would actually trigger emergency pay and if it was triggered, they would have no way to know. The same Employer, who fought tooth and nail over the reimbursement of bargaining unit member’s internet services during the pandemic would have the
Arbitrator believe that it never provided guidance to agencies regarding the specific type of administrative leave that it knew would trigger a multi-million dollar obligation. The reason this does not make sense is because none of the State’s allegations are truthful. The language in Article 35.01(B) was never intended to be interpreted this way. The State’s defense is an afterthought, a convenient “out” if you will. Mr. Dandridge testified to that fact. When questioned as to when he determined that someone being placed on administrative leave was a requirement of the language, Mr. Dandridge testified that it was six to nine months ago when he read the language after he had been assigned to the emergency pay case for another bargaining unit. Mr. Dandridge did NOT testify that – this had been the understanding all along – or that he had researched the history of the language and met and discussed with the parties to arrive at his revelation.
This is merely the interpretation of an advocate assigned to win a very important case. And credit must be given to Mr. Dandridge for coming up with this brand-new interpretation. It gave something for panel arbitrators to hold on to so they did not have to find against the State, costing the State millions of dollars and likely their panel appointment. It is a convenient escape, not a true representation
of what the language says, means or what it was intended to do.
This Arbitrator is asked to choose between two possibilities: (1) that emergency pay should be paid because members worked during an emergency/pandemic that no one expected to last as long as it did OR (2) that no emergency pay is due because no worker was paid a specific type of administrative leave AND the State failed to safeguard Ohioan’s tax dollars by doing anything to prevent this potential multi million dollar encumbrance and just lucked out by not having to pay it.
The State maintains that the parties bargained and developed language for emergency pay in their collective bargaining agreement that would: ONLY apply when the Governor declared an emergency that either specifically included or did not deliberately exclude implementation of policy HRD-11, and if the first requirement is met, emergency pay for those that work during an emergency can only be triggered if one employee, somewhere in the State, is placed on an alleged specific type of administrative leave with pay. These contentions are problematic for the State for a host of reasons. First, the Governor cannot negate the requirements of an existing contract by Executive Order. And regardless of the constitutional implications that will be addressed in detail below, the existing contract has clear language stating “the provisions of this Agreement shall automatically modify or supersede: (1) conflicting rules, regulations and interpretive letters of the Department of Administrative Services pertaining to wages, hours and conditions of employment; and (2) conflicting rules, regulations, practices, policies and agreements of or within departments/Agencie pertaining to terms and conditions of employment; and (3) conflicting sections of the Ohio Revised Code except those incorporated in Chapter 4117 or referred to therein.” (JX-1 Article 1)
Further, the second requirement proposed by the State- that emergency pay can only be triggered if an employee somewhere is placed on an alleged specific type of administrative leave- is nonsensical and their alleged adherence to this interpretation of the language is disingenuous. The Union showed through testimony elicited from State employees that there was there was no guidance given to any of the State’s 40+ agencies related to approval of administrative leave during the emergency, that there was no manner in which to track such leave, no payroll trigger, and absolutely no other preparation for this interpretation of the collective bargaining agreement. This is easily explained, because as OCB Staff member Dandridge–, stated on the stand- this was all his own personal interpretation in the first place. When questioned as to WHEN he developed this theory of the language Mr. Dandridge stated “When I studied the language in preparation for the case. I felt it required both elements and I shared with my boss. I was successful in proving that.” This testimony establishes clearly that the State had no prior reliance on this allegation or “trigger” if you will, being a part of the requirement of this language, it was, as Mr. Dandridge testified, an afterthought, produced only AFTER the situation had occurred and he
had been assigned the case some “6-9 months” prior.
The State provided no prohibition of or direction regarding placing any of the State’s over 40,000 employees on administrative leave during the time of the declared emergency. And according to the interpretation put forward by the state, by placing one employee on administrative leave with pay, one single state entity would trigger emergency pay for the entire bargaining unit. Of course, this is not normal administrative Leave with pay as it is defined by the CBA or the ORC or OAC; not the type of administrative leave referred to in the State’s own data dictionary, but a very niche and specific kind of administrative leave, a secret leave that could not be defined by any of the state’s witnesses. There was no direction to any of the agencies about the existence of this type of leave or the consequences of what would have if it were implemented. But THEN if that were to miraculously happen, instantaneously, as if by magic, all members of the state workforce, or at least those covered by the collective bargaining agreement for the bargaining unit(s) in which the person who was placed on this secret leave was from, THEN all the other individuals who work under THAT collective bargaining agreement, according to the supposal of Witness Dandridge, would begin making an additional $8 an hour immediately. And we are being asked to believe that despite the obvious complexities, requirements and communication and process that something of this magnitude would require, the State, an entity that lives and dies by policies and procedures, and whose very existence is due to the creation of policies and procedures, did not bother to take the obvious requisite step of writing down HOW any of this would happen or create any mechanism making sure that it did not. Because according to policy- you need a receipt for the State to reimburse you for a $40 tank of gas, but one bureaucrat sitting at one of its many agencies could trigger a multi-million-dollar payment from the State with not a single policy, procedure, email or footnote giving that individual any direction at all.
There was no testimony or evidence presented to show the mechanism by which the $8 an hour stipend being in effect would be communicated to anyone in Human Resources, payroll or anyone who would actually input the data to make the requisite change to reflect the payment being made to the individuals who deserved it. Nothing. The Union questioned witness Dandridge as to the specifics
and mechanism to corroborate this wild allegation and he was not able to offer any guidance whatsoever. The State also had ample opportunity to ask Witness Rankin, the Deputy Director of the Office of Collective Bargaining, to elaborate and explain the lack of clarity provided by Witness Dandridge’s testimony. Rankin offered no guidance or clarity, let alone rebuttal of Mr. Dandridge’s supposals on the issue whatsoever.
The State is asking the Arbitrator to believe that they have policies and procedures for where to take a state vehicle and which locations are approved to use when getting a $10 car wash or a $50 oil change, but in matters of the entire workforce or some selection thereof earning an additional $8 per hour, they didn’t bother to capture this process or the mechanics by which notification to agencies and enactment of the stipend would happen in any way at all. An entity that is constitutionally obligated to balance their budget and who, on their own website, claim to “DAS takes great pride in its work to meet the needs of our customer agencies and Ohio citizens while pursuing innovation and keeping costs in check.
Our team of dedicated professionals is committed to delivering quality service through our wide range of programs.” (https://das.ohio.gov/about/about-us) In order to “keep costs in check” one would imagine that a mechanism and process would have been developed to facilitate the process by which the state
would potentially increase spending on its workforce by $256,000 per 8-hour day just for 1/10 of its workforce. ($8 an hour times 8 hours in a day = $64 an hour times 4000 workers = $256,000 per 8-hour shift). But apparently, spending an additional quarter of a million dollars a day on 1/10 of its workforce is something that the state does from memory or some other mysterious and elusive mechanism, as they introduced no such instructions or explanations of HOW his would work at hearing. The only thing that Mr. Dandridge could proffer was that there “was no number” when questioned how many people it took under his theory of the language, to “trigger” if you will, the stipend. Mr. Dandridge eventually arrived at
ONE. One single solitary person in a workforce (in the 1199 bargaining units? in a specific agency? It was obvious that this was the first time ANYONE asked or even pondered this very basic yet extremely obvious and crucial question) of forty thousand, can be responsible for the state providing an additional $2,560,000 PER DAY in compensation to their workforce, and no one has the rules or process by
which this would happen. That is inconceivable. Arbitrators avoid nonsensical results for a reason. They are nonsensical and cannot be supported by logic, explanation, or reason. They are by definition absent any sense or reasonableness by which they can be measured. Nonsensical results are to be avoided by Arbitrators. The State’s theory would lead you ONLY to a nonsensical and unreasonable outcome. No entity, let alone one as sophisticated as the State of Ohio would so encumber itself with a burden of such significance and then connect it to a “trigger” that is not measured, observed, captured, or repo
HOW would the State KNOW if someone went on admin leave and the “trigger” was pulled. The State offered absolutely no proof that this language is to be read, interpreted or believed in that fashion, as the complete absence of any policy, process or mechanism that would monitor such an important and significant expenditure was provided, or even known of by Mr. Dandridge when questioned by the Union. Mr. Dandridge had conducted no less than two arbitration hearings as first chair on this issue with other Unions, and testified, under oath, that he “Had NEVER heard that argument before.” How then can the previous Arbitration decisions be relied on as precedential as the State would like? They cannot, because for whatever reason, those Arbitrators did not contemplate the same set of facts, the same questions of authenticity of the argument, the subsequently proposed language that clearly shows the intent and clear meaning of the language before this Arbitrator.
The Union, nonetheless, did produce evidence and testimony from the Ohio Department of Rehabilitation and Correction, The Ohio Veterans Home, The Department of Developmental Disabilities and the Ohio Department of Mental Health and Addiction Services that no less than forty-five (45) employees, who were members of the 1199 bargaining units, were in fact placed in administrative leave with pay during the period of declared emergency. This harsh reality forced the state to scurry further down the rabbit hole and claim that this was Administrative Leave with pay, but not the right kind of administrative leave with pay. The states’ argument is absurd.
Union Exhibit 15 provides the legal definition of administrative leave with pay, and that language is mirrored in the parties’ language in Article 35. Mr. Dandridge affirmed at hearing that the two pieces of language are identical. There is no right kind or wrong kind of administrative leave with pay, there is ONLY administrative leave with pay. The Agreement does not require implementation of Policy HRD11
The State is also arguing that the absence of the implementation of policy HRD-11 is another reason that this language has not been violated. This is just as nonsensical, as policies are not bargained, and no policy can supersede contract language. The decision to implement a policy lies with the employer and to incorporate the enactment of a policy to contractual language would extend to the State latitude not bargained nor provided in or intended by this language. The parties have taken precautions against the interference of policies with the contractually negotiated language. The parties, in Article 1 deliberately agreed “It is the purpose of this Agreement to provide for the wages, hours and terms and
conditions of employment of the employees covered by this Agreement; and to provide an orderly, prompt, peaceful and equitable procedure for the resolution of differences between employees and the Employer. Upon ratification, the provisions of this Agreement shall automatically modify or supersede: (1)
conflicting rules, regulations and interpretive letters of the Department of Administrative Services pertaining to wages, hours and conditions of employment; and (2) conflicting rules, regulations, practices, policies and agreements of or within departments/Agencies pertaining to terms and
conditions of employment; and (3) conflicting sections of the Ohio Revised Code except those incorporated in Chapter 4117 or referred to therein.” (JX-1 bold underline added) This language establishes that anything within policy HRD-11 is not applicable to the plain language of the parties CBA and cannot supersede, conflict with, or modify the language of Article 35. Policy HRD-11 may be utilized by the State, or it may NOT be utilized by the State, but the decision to implement it or not and its contents and intent are of absolutely zero consequence to the language in the parties’ contract and have absolutely zero effect on the question before the Arbitrator. Management Advocate Dandridge testified affirmatively that the State completely agrees that policy does NOT supersede contractual language.
This is something the State is well aware of and has acquiesced to for many decades. What good would contract language be if the employer could simply escape its’ requirements and obligations by writing a policy or clarification letter that contradicted it or added additional requirements and “triggers” that were not negotiated between the parties?
The parties create and agree on the exact language in a contract for a reason, deliberately and purposefully. Nothing appears in the CBA by accident or unintentionally. If the parties had wanted a policy implementation to be a trigger for the stipend to be paid, they would have bargained such language, Article 35.01 would have read: “Other Than Weather Emergency – Employees not designated
essential may be required to work during an emergency. When an emergency, other than a weather emergency, is declared by the Governor or designee, PURSUANT TO DAS POLICY, and Administrative leave with pay is granted for employees not required to work during the declared emergency, such leave is to be incident specific and only used only in circumstances where the health or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected. Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above.” (Article 35.01 B with RED BOLD LANGUAGE ADDED) The language does not require the implementation of any policy for the stipend to be paid. This was not the intent of the parties, and the plain language of the contract does not mention the policy, therefore, to introduce it as a requirement at this point would be beyond the scope of the Arbitrators authority, as the Arbitrator is prohibited from adding anything to the parties agreement. “E. Arbitrator Limitations 1. Only disputes involving the interpretation, application or alleged violation of a provision of this Agreement shall be subject to arbitration. The arbitrator shall have no power to add to, subtract from, or modify any of the terms of this Agreement, nor shall he/she impose on either party a limitation or obligation not specifically required by the express language of this Agreement.” (JX-1 Article 7)
The parties know how to create triggers and incorporate policy into the contract. Absent such an agreement, policy HRD-11 has no impact on the language of the parties CBA, let alone in application of Article 35. To prove this, the following are just a few examples of where the parties have chosen to include policy in the contract. “26.11 Adoption/Childbirth Leave Eligibility requirements, leave benefits, and waiting period for Adoption/Childbirth Leave shall be determined pursuant to State policy. Employees may elect to take two thousand ($2,000) dollars for adoption expenses in lieu of taking time off for Adoption/Childbirth Leave.” (JX-1 Article 26.11) “The parties acknowledge that the Employer retains the right to establish a fair and reasonable drug policy. Such policy shall not be arbitrary or capricious and shall not conflict with the provisions of this contract. The policy is set forth in Appendix D.” (JX-1 Article 49- Drug Testing) Just as the parties did with the drug testing policy language above, the
parties could have negotiated language to allow DAS to develop and incorporate a policy to address other than weather emergencies, they did NOT. Therefore, HRD11 has no bearing on this case.
“9. The agreement does not alter the terms and conditions of appointment, including salary, benefits, individual rights, or obligations. All pay, leave, overtime requests, and travel entitlement shall be based on provisions of the collective bargaining agreement and Agency policy.” (JX-1 Appendix E Alternative Work Locations) “32.11 Working Alone In the institutions of the Department of Rehabilitation and Correction,
working alone shall be governed by the Agency policy.” (JX-1 Article 32.11) “APPENDIX D – DRUG-FREE WORKPLACE POLICY” (JX-1 Appendix D) “XVI. Working Alone In all locations of OhioMHAS and within ODRC
institutions for Recovery Service Coordinators the current OhioMHAS Policy shallapply.” (JX-1 DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES Agency Specific Language) “When an emergency exists, in the sole and exclusive opinion of the Employer, all leaves including vacations may be canceled. If an employee is called to work from a scheduled vacation leave period, the employee will have the right to take the vacation leave at a later time and will be paid at time and one-half for the time the employee is in on-duty status. The employee shall also be reimbursed for any cost incurred as a result of canceling or returning from his/her vacation upon submission of appropriate evidence.” (JX-1 Article 10.03) “People commonly use general language without a clear consciousness of its full scope and without awareness that an exception should be made. Attention and understanding are likely to be in better focus when language is specific or exact, and in case of conflict the specific or exact term is more likely to express the meaning of the parties with respect to the situation than the general language.” (Elkouri and Elkouri 8th Ed. Pg. 469)
This language establishes that the employer, in certain circumstances, has retained the right to determine when an emergency exists. The language in Article 35 does not provide the State with that authority. The parties have agreed that an emergency exists, for the purposes of Article 35, when it is declared by the Governor or his designee. The Governor declared an emergency. (Joint Stipulation
2) “Delegates/organizers of the Union shall be allowed reasonable contact with employees of the bargaining unit during normal working hours. The organizer shall notify the designated Agency representative before conducting Union business on the Agency’s premises and shall adhere to the Agency’s reasonable policy regarding access.” (JX-1 Article 3.01)
Clearly the parties did not intend nor negotiate that policy HRD-11 or any other policy or directive be required for the language of Article 35 to be recognized and applied and that no policy or directive can conflict with or supersede the plain language. What would the point be of negotiating language that the employer retained the authority to negate with policy? Also of import is the language in article 1 that clearly states that the employer only retains the right to modify benefits that are not codified in the agreement.
“1.03 Total Agreement
This Agreement represents the entire agreement between the Employer and the Union and unless specifically and expressly set forth in the express written provisions of this Agreement, all rules, regulations, practices and benefits previously and presently in effect, may be modified, or discontinued at the sole discretion of the Employer. This Section alone shall not operate to void any existing or future ORC statutes or rules of the OAC and applicable Federal law. This Agreement may be amended only by written agreement between the Employer and the Union.” (JX-1 Article 1.03) The benefit of the stipend must be maintained unless it is modified by the parties, and it was not. “Sections or portions cannot be isolated from the rest of the agreement and given construction independently of the purpose and agreement of the parties as evidenced by the entire document. …The meaning of each paragraph and each sentence must be determined in relation to the contract as a whole.” (Elkouri and Elkouri 8th Ed. Pg.
463)
Distinction from Other Arbitration Awards
The State suggests that this Arbitrator must follow the earlier arbitration decision in the emergency pay cases filed and arbitrated by other unions. However, there is no issue preclusion in this matter specifically and no stare decisis in arbitration generally. Though the decisions of Arbitrators Szuter and Cole deal
with similar language in contracts between the State and other unions, this grievance brought by the Union in this matter is obviously different for a number of reasons: (1) the judgment in the previous cases are not final; (2) District 1199 brought forth theories and arguments of the case that had never been brought up in prior arbitrations; (3) other unions has restrictions on the evidence they were able
to present at arbitration- restriction which District 1199 did not have; (4) the parties in other arbitration stipulated to a different set of facts; (5) the language is not identical: and (6) the prior decisions were by panel arbitrators and not selected from a random FMCS panel. “The extent to which an arbitrator is bound by the decision of a predecessor “can be determined only by reference to the agreement as a whole,”151 and, where the agreement is silent, the “arbitrator may decline to follow arbitral precedent when his judgment is that earlier decisions are erroneous.” (Elkouri and Elkouri 8th Ed. Pg. 583)
The Awards of both Cole and Szuter have been challenged by the respective Unions via properly filed motions to vacate these decisions in court. Witnesses for the State confirmed this during the hearing. This matter has not yet been adjudicated in Franklin County Court. Arbitration decisions have very rarely been contested by the union representing state workers. However, in these situations, it is obvious that the Arbitrators exceed their authority as the Awards failed to draw their essence from the collective bargaining agreement. It is obvious when reading these prior decisions that the Arbitrators’ Awards added requirements not found in the plain language of the parties’ agreement. Rendering their decision in such a way as to maintain that the granting of administrative leave with pay would be a prerequisite of the stipend being paid, the Arbitrators have added something to the parties CBA’s that was not there prior to the decisions being written and issued, thus overstepping their arbitral authority and effectively modifying the parties agreements. “One of the most often cited explanations for a court’s refusal to uphold an award is that the arbitrator’s award violates the clear language of the agreement (the “plain meaning” standard of contract interpretation).” (Elkouri and Elkouri 8th Ed. Pg. 48)
The Union has also made arguments in this arbitration that were not made in previous arbitrations. The State recognized and testified that many of the arguments presented by SEIU were never heard before in either of the previous hearings. Further, the State admitted that the other unions had stipulated to issues and facts not stipulated to by SEIU. In some cases the prior stipulations were contrary to the stipulations of the parties in the other two cases. Mr. Dandridge’s stated under oath: “I have never heard that argument before” when he was challenged regarding the State’s interpretation of the prerequisite requirement of administrative leave. The arguments, evidence, facts and stipulations, not to mention the language, theory of the language and history are different enough to require that the prior decisions be completely abandoned in this Arbitration- as it is obviously not the same as any prior arbitration. It is also highly significant that the State and Union witnesses affirmed that no ground rules were signed by SEIU but that both OCSEA and Unit 2 had signed ground rules that would preclude them from introducing subsequent language that would have undoubtedly altered the decisions of Arbitrators Cole and Szuter, given how revealing and specifically relevant the new language is to the issue at hand. Further, both Arbitrator Cole and Arbitrator Szuter are panel arbitrators between Bargaining Unit 2 and OCSEA respectively. This means that not only do these arbitrators receive frequent and regular work from the parties, but either party, the State or the Union may remove them from the panel at any time. The
Union is not alleging in any way that either of these Arbitrators is not trustworthy and capable, but the SEIU and the State of Ohio deliberately negotiated a provision in their CBA, article 7, that would allow an Arbitrator to be selected via FMCS strike method in light of the perception that a panel Arbitrator may be perceived by one side or the other, to have a desire to avoid significant decisions that may cause
either side to choose to rescind their appointment in light of such a decision. For example, a case that would award union members millions of dollars from the State.
In addition to the absence of any precedential requirement for the parties or the Arbitrator to adhere to, the other Arbitrators were not privy to facts, evidence, and argument that the Arbitrator in the instant case is. The outcome would have undoubtedly been starkly different had Arbitrators Cole and Szuter been made aware of the additional information, evidence and arguments. They were not; therefore, their decisions were based on only the evidence, arguments, and facts that they believed to exist, not a full picture of the situation. This alone is enough to mitigate any reference to or inference drawn from either of their awards to the grievance between SEIU and the State. The reasoning, logic and arbitral
application of any previous decisions or awards cannot be relied on in the instant case.
The State is also hoping that the Arbitrator will give weight to a decision written by Arbitrator Washington. This decision is no more on point or applicable than either of the others, and is completely flawed when attempting to compare it to the fact pattern at hand. A significant distinction is that the emergency declaration of Governor Strickland, maintained a significantly different declaration, the declaration of Governor Strickland stated “This Determination of Emergency is not a Weather (Public Safety) Emergency. This emergency declaration does not implement the Department of Administrative Services Directive 08-03 or the EMA “Weather Emergency Procedure” (revised February 12, 2007) and does not include a declaration of an all state emergency pursuant to the collective bargaining agreements. Accordingly, all state employees’ obligation to travel to and from work is not limited as a result of this emergency declaration.” (UX-6) Absent from Governor DeWine’s declaration is any reference to the collective bargaining agreements, and the statement regarding an all state emergency. Arbitrator Washington seems to have indicated that the emergency declared by Governor Strickland was NOT for Public Safety purposes. The same cannot be said of Governor DeWine’s declaration: “1. A state of emergency is declared for the entire State to protect the well-being of the citizens of the Ohio
from the dangerous effects of COVID-19, to justify the authorization of personnel of State departments and agencies as are necessary, to coordinate the State response to COVID-19, and to assist in protecting the lives, safety, and health of the citizens of Ohio. 6. This Proclamation does not require the implementation of the Department of Administrative Services Directive HR-D-11. Accordingly, State
employees’ obligations to travel to and from work is not to be limited as a result of this proclamation.” (JX-3) Also of high import is the fact that in the State’s brief in the Washington case, the State did NOT argue that the placement of someone on Administrative Leave with pay was the “qualifying event” that they now claim it is, despite the language being identical. This further proves that the allegation of
the leave being a triggering event was imagined by the State only AFTER they began preparations for the hearings on this matter, and not when the language was originally drafted, proposed, negotiated, and ratified.
The State seems hung-up on WHY the Governor declared an emergency rather than focusing on the requirement of the language, which is simply that the Governor DID declare an emergency. There is no requirement that the Governor’s declaration of emergency be for a specific purpose other than that it be for an Emergency of some sort.
Also of great magnitude is the difference between the SEIU language and the OCSEA language. The OCSEA language does not specify WHO can declare an emergency. The OCSEA language states “When an emergency, other than weather emergency is declared and leave is granted, such leave is to be used in
circumstances where the health and safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected.” The language in question before the Arbitrator is the SEIU language which states “When an emergency, other than a weather emergency, is declared by the
Governor or designee and Administrative leave with pay is granted for employees not required to work during the declared emergency, such leave is to be incident specific and only used only in circumstances where the health or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected.” (JX-1 Article 35)
The SEIU and the State negotiated language starkly different is this regard and identified the individual who is empowered to declare the emergency referenced in the article. OCSEA and the State did NOT identify the person so empowered. The SEIU language also is more specific in the type of leave that the State has the authority to grant in an “other than weather emergency” and placed further restrictions on the State’s discretion than OCSEA did.
Plain meaning of the language
The language clearly states that the intent of the parties was to address employer concerns not addressed in Article 35.01(A) and established the parameters for handling an emergency situation that was not due to weather. Any possible emergency whatsoever that is NOT a weather emergency is, by definition, an “other than weather emergency”. The emergency could be a terrorist attack, pandemic, a chemical spill, or a nuclear threat. Literally, it could be any emergency as long as it is not a weather related emergency. Covid-19 was not a weather emergency. (Joint Stipulation #6)
During the pendency of the contract, tenured State employees cannot be locked out of work. See Article 45.04 (JX-1). The only way that State employees can be lawfully forced to not work is in one of the following ways:
Resignation that has been accepted by the State
termination (for just cause)
layoff
Death
disability separation
Retirement.
In “other than weather” emergencies, the State had to have another way to direct post probationary employees and/or require employees to not report to work that is not one of the actions identified above. The “other than weather” emergency language was created to grant the State authority and ability they did not otherwise have under the contract- to place employees on a specific type of paid
administrative leave during an “other than weather” emergency.
“B. Other Than Weather Emergency
Employees not designated essential may be required to work during an emergency. When an emergency, other than a weather emergency, is declared by the Governor or designee and Administrative leave with pay is granted for employees not required to work during the declared emergency, such (of the type previously mentioned)(Dictionary.com) leave is to be incident specific and only used only in circumstances where the health or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected.
Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above..” (JX-1 Art. 35.01 B “such” definition added)
Language
Employees not designated essential may be required to work during an emergency.
Meaning
This allows the state to require nonessential employees to work during an emergency.
Language
When an emergency, other than a weather emergency, is declared by the Governor or designee.
Meaning
This simply outlines an event occurring or taking place, identifying the time for which something subsequent is to apply, as the word “WHEN” governs the entirety of the language that follows it in the sentence, and indicates who has the authority to declare an emergency
Language
and Administrative leave with pay is granted for employees not required to work during the declared emergency, such leave is to be incident specific and only used only in circumstances where the health or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected.
Meaning
Administrative leave can only be used if there is a specific incident giving rise to the necessity for the leave- outlines an event occurring or taking place, identifying the time for which something subsequent is to apply “such leave” means the leave that was previously mentioned “Administrative leave with pay” – this language is a limitation on the State on when and how they can use the leave and the burden they must prove if they do choose to exercise their negotiated ability to place someone on administrative leave with pay during an emergency if the Union would challenge the action
Language
Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above.
Meaning
This language is clear that any employee, essential or non-essential, who works during an “other than weather emergency” is to be paid in accordance with 35.01 (A) above, which is undisputedly the $8 an hour stipend.
Admittedly, this language is not the most artfully crafted, which the State
acknowledge with its proposals in the subsequent CBA. However, the nuance that the state is claiming should govern this language does not exist. There are three different actions that are taken (or may be taken) in an emergency other than a weather emergency. Each action is its own sentence in the subsection below:
- Employees not designated essential may be required to work during an emergency.
- Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above.
- When an emergency, other than a weather emergency, is declared by the Governor or designee and Administrative leave with pay is granted for employees not required to work during the declared
emergency, such leave is to be incident specific and only used only in circumstances where the health or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected.
The only action that has any precondition is the third. And that precondition is only that IF administrative leave is given THEN it must be incident specific. The State is hoping that because the language has the word “and” in it before “Administrative Leave with Pay is granted” that this somehow creates a symbiotic
relationship within the context of the paragraph. It does not, the leave is not a precondition of anything else happening, it is not a trigger or a requirement of the language. If the State were correct and that sentence could somehow create a precondition on other sentences in the paragraph, then why was the State allowed to make non-essential employees work during the emergency if no incident specific administrative leave was granted? Because that, is just as non-sensical as the State’s current claim related to the emergency pay.
The incident-specific administrative leave is an option negotiated between the parties that the state may choose to exercise to avoid other contractual requirements. This is because the parties conditioned the leave with further deliberate verbiage, “Such leave shall be incident specific” This applies a
condition to the administrative leave and is the reason for the necessity of the inclusion of the word “and” in the sentence. The word “and” is not added to marry the two actions into one requirement, but rather to indicate that there is more than one condition on the state placing someone on the leave. If the parties wished to condition the payment of the stipend on the placing of someone on leave, they would have written it that way. The ONLY condition placed on the payment of the stipend is that there is an emergency other than a weather emergency and that the bargaining unit employee WORKED. This is evidenced by the language at the end of the paragraph, “Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above.” This language unequivocally demonstrates that the exchange for the payment of the stipend was the WORK. This sentence stands alone to explain and define the instance in which the stipend will be paid.
In creating this language, the employer desired the latitude to address the possibility that it may not have designated all employees that it may need during an other than weather emergency as “essential employees” and that, during an emergency, the state may need to require employees, who they had not designated as essential, to perform work. An ability that the State would have otherwise forfeited if they did not designate certain individuals as essential. The Union granted the state this latitude in exchange for the guarantee that ANYONE who WORKED during the period of the declared emergency, weather or other than weather, any emergency at all, would be compensated the additional $8 an hour prescribed in 35.01(A) above.
Not only did the state receive this latitude regarding nonessential workers in exchange for the $8 per hour in emergency pay, but the language also saves the state the trouble, time and bureaucratic red tape associated with having to enact and effectuate a layoff under the agreement, which would be the only other contractually appropriate option to NOT having the employees work during the emergency. Otherwise, the State would effectuate a lockout, which is clearly prohibited by the Contract.
The state seemed to place emphasis on the fact that the Governor’s declaration and executive order did not explicitly impede state employees’ obligation to travel to and from work. Of course, it did not. If the Governor issued an executive order to this effect, stating that state employees were NOT permitted to travel to and from work, The Governor would be locking these employees out and violating the contract. “45.04 Employer Prohibition – The Employer agrees that it shall not lock-out any employees.” (JX-1) Also telling is that the Governor’s declaration does not say the state employee’s “ability” to travel to and from work but rather the declaration stated, “State employees’ obligations to travel to and from work is not to be limited as a result of this proclamation.” (JX-3) This declaration identifies the employee’s “obligation” to work- an obligation that does not conflict with the terms of the collective bargaining agreement which allows the State to require all employees to continue to work during an “other than weather”
emergency.
Also included in this declaration is the language that the employer stipulated to, which satisfies the requirement of an emergency being declared, the Governor’s emergency declaration itself. “WHEREAS, on March 09, 2020, the Ohio Emergency Management Agency activated the Emergency Operations Center; and WHEREAS, in accordance with Ohio Revised Code section 5502.22, this Executive Order is necessary to authorize previously-alerted state departments and agencies to prepare to respond to this public health emergency as needed;
NOW THEREFORE, I, Mike DeWine, Governor of the State of Ohio, by virtue of the authority vested in me by the Constitution, the laws of this State and in accordance with Section 5502.22 of the Ohio Revised Code do hereby order and direct that: 1. A state of emergency is declared for the entire State to protect the well-being of the citizens of the Ohio from the dangerous effects of COVID-19” (JX-3 bold and underline added) “2. State of Ohio Governor Mike DeWine declared a State of emergency on March 09, 2020, via Executive Order 2020- 01D.” (Joint Stipulation 2)
The allegation that administrative leave with pay is a requirement of the state paying the stipend is utterly ridiculous and not founded in any logic whatsoever. This allegation is a disingenuous afterthought and has never been suggested by the State prior to the instant period of Emergency. This claim is
intellectually dishonest. The Union will address this allegation in other parts of their brief as well. This is undeniably NOT AT ALL what the language says or means. The language grants the state permissions they did not otherwise have, to place someone, with whom they entered an employment contract with, on administrative leave with pay even though that person is not the subject of an investigation, as would be the only other situation under which administrative leave with pay would be permissible under the ORC/OAC or the CBA. This was supported by several of the State’s own witnesses. The State introduced zero evidence to support their allegations that placing someone on administrative leave was required under this language. OCB Deputy Director Rankin offered only an anecdotal recollection of a time when she thought emergency pay might have been paid. This recollection was not supported by any corroboration or evidence of any kind. And while the burden may be on the Union in an issue case to show that the language in question was violated, the State has an equal obligation to support their
claims, if they are to be relied on by the Arbitrator in any fashion whatsoever. In this case, these claims are nothing more than that, disingenuous, unsupported claims.
At hearing the state manufactured a “new” term for this type of administrative leave with pay and referred to it as “administrative leave for standard business reasons” or some other such nonsense. A term that appears nowhere in the OAC/ORC, the parties CBA nor the State’s own data dictionary of
leave types. The state obtained this latitude from the Union through the bargaining process, to be used in ONLY specific instances where the health and/or safety of the employee or someone entrusted to the employee’s care could be negatively affected. This was a restriction placed on the state’s ability to use the leave, not a prerequisite for the stipend. There is no legitimate way to read this language and come to that conclusion. The leave is permissive and gives the state options to exercise. The agreement must be read and interpreted as a whole. During an emergency does the state want to enact a layoff, require even those that they have not deemed essential to work, or do they want to place them on administrative leave with pay? These are the limited options the state has negotiated in this situation. The state chose to exercise the option of having the individuals work but ignored the obligation to pay the required stipend. The payment for hours worked during an emergency is NOT permissive, as the parties clearly established that payment for hours worked during such a period of emergency SHALL be paid according to 35.01 A above. The State stipulated that ALL members of the SEIU 1199 bargaining units did in fact WORK during the period of declared emergency (Joint Stipulation 7)
The use of administrative leave with pay is permissive, as was determined by Arbitrator Fitts. It is not a requirement that the state SHALL place these individuals on Administrative Leave with pay. The determination of the state to continue to have employees perform the work is also permissive, as the state bargained the ability to avoid the contractual obligation of providing the employees with work, by placing the impacted employees on administrative leave with pay. The state CHOSE not to do so. The PAYMENT of the stipend is MANDATORY, as it is clearly stated, “Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above..” (JX-1 Art. 35.01 B) These choices and actions have consequences. The consequence of choosing to have all state workers continue to work during a period of declared emergency is the payment that was bargained for.
“Meaning is inevitably dependent on context. A word changes meaning when it becomes part of a sentence, the sentence when it becomes part of a paragraph. A longer writing similarly affects the paragraph. …Where the whole can be read to give significance to each part, that reading is preferred.” (Elkouri and Elkouri 8th Ed. Pgs. 462-463)
The History of the language proves the Union’s contention
The State of Ohio and SEIU District 1199 negotiated their first collective bargaining agreement in 1986, (JX-5), shortly after collective bargaining for public employees was codified into law under ORC Chapter 4117. In the initial agreement, the parties contemplated ONLY weather emergencies in Article 33. It specified that anyone who worked during a declared emergency would receive an additional hour of pay or an hour of compensatory time for each hour worked. Employees, who were identified as “essential”, were required to work during an emergency. For that work, the employees would essentially receive double time for all hours worked during a declared emergency. The parties also agreed to allow any such emergency to be declared by locality. Under this language, non-essential employees would NOT be required to work and would be compensated at their normal rate of pay. The quid pro quo for the work being done during an emergency is the increased payment..
1989-1992 Contract (JX-6)
ARTICLE 35 – WEATHER EMERGENCIES The Employer retains the right to declare a weather emergency and to designate as essential those employees who are required to report to work during weather
emergencies. The Employer agrees to furnish the Union with a list of essential employees and to notify all employees designated essential. When a weather emergency is declared, non-essential employees will not have to report to work and shall be paid at their regular rate. Essential employees shall report, and shall be paid for all hours worked. In addition, an essential employee shall receive one (1) hour’s pay or
one (1) hour’s compensatory time for each hour worked. When a weather emergency has been declared pursuant to this article, the Employer may compensate essential employees who make every reasonable effort to come to work and are unable to do so. Compensation shall be at the regular rate of pay. Legitimate and adequate proof may be required by the Employer. (JX-6)
This language was moved in 1989 to Article 35, and changes were bargained that included changing the declaration of emergency to be made by the employer and not a locality. It also allowed individuals, who were essential and attempted to get to work, but were unable to, to be paid, so long as they could provide ample proof of their attempt to attend work. Essential individuals, who worked, still received the equivalent of double time for all hours worked during the emergency. Those not designated essential would still not be required to work during a declared emergency and would be compensated at their normal rate of pay, meaning that they would suffer no loss. Even in this version, the This was most likely so the State could avoid processing a layoff and then turn around and recall the non-essential employees after the emergency subsided. The Employer got that ability and the Union received protection in the form of continued pay and employment for the bargaining unit members.
During negotiations in 1992, 1994, 1997, and 2000, the parties left this language unchanged. (JX-7, JX-8, & JX-9)
2000-2003 Agreement (JX-10)
ARTICLE 35 – EMERGENCIES Employees directed not to report to work or sent home due to weather conditions or another emergency shall be granted leave with pay at regular rate for their scheduled work hours during the duration of the emergency. Employees required to report to work or required to stay at work during such emergency shall receive pay at time and one-half (1 1/2) for hours worked during the emergency. Any overtime worked during an emergency shall be paid at double time. An emergency shall be considered to exist when declared by the Employer, for the county, area or facility where an employee lives or works. For the purpose of this Section, an emergency shall not be considered to be an occurrence which is normal or reasonably foreseeable to the place of employment and/or position description of the employee. Essential employees shall be required to work during emergencies. Essential employees who do not report as required during an emergency must show cause that they were prevented from reporting because of the emergency.” (JX – 10)
2003-2006 Agreement (JX-11)
In 2003, the parties negotiated several changes to the language in Article 35. The parties reduced the rate of pay for hours worked during an emergency to time and one-half and established that overtime worked during an emergency would be paid at double time. The employer narrowed the scope of the area for which they could declare an emergency. The language maintained payment for non-essential
employees and, as established from the initial language, that these individuals were not required to work during an emergency but would still receive their normal pay. The parties also modified the language requiring those essential employees who did not report to work to show cause that they were prevented from reporting because of the emergency. This was the extent of the changes to this language. What is clear and undeniable is that the parties intended for non-essential employees to remain off work and be paid as if they were working and that anyone who did work during an emergency would receive a recognized benefit, initially double time and now time and one half. There were no other requirements for this payment to be made.
2006-2009 Annotated Agreement (JX-12)
ARTICLE 35 – EMERGENCIES 35.01 Emergency Leave A. Weather Emergency Employees directed not to report to work or sent home due to a weather emergency as declared by the Director of the Department of Public Safety, conditions or another emergency shall be granted leave with pay at regular rate for their scheduled work hours during the duration of the weather emergency. The Director of the Department of Public Safety is the Governor’s designee to declare a weather emergency which affects the obligation of State employees to travel to and from work. Employees required to report to work or required to stay at work during such weather emergency shall receive pay at time and one-half (1 1/2) for hours their total rate of pay for hours worked during the weather emergency. In addition, employees who work during a weather emergency declared under this section shall receive a stipend of eight dollars ($8.00) per hour worked. Any overtime worked during an emergency shall be paid at double time. An emergency shall be considered to exist when declared by the Employer, for the county, area or facility where an employee lives or works. For the purpose of this Section, an emergency shall not be considered to be an occurrence which is normal or reasonably foreseeable to the place of employment and/or position description of the employee. Essential employees shall be required to work during emergencies. Each year, by the first day of October, all agencies must create and maintain a list of essential employees. Essential employees are those employees whose presence at the work site is critical to maintaining operations during any weather emergency. Essential employees normally consist of a skeletal crew of employees necessary to maintain essential office functions, such as those State employees who are essential to maintaining security, health and safety, and critical office operations. Employees who are designated as essential employees shall be advised of the designation and provided appropriate documentation. Essential employees shall be advised that they should expect to work during weather emergencies unless otherwise advised. However, they are not guaranteed work. Nothing in this section prevents an appointing authority from using his or her discretion in sending essential employees home or instructing them not to report for work once a weather emergency has been declared. Essential employees who do not report as when required during an emergency must show cause that they were prevented from reporting because of the emergency. Employees not designated essential may be required to work during a weather emergency. During the year, extreme weather conditions may exist and roadway emergencies may be declared by local sheriffs in certain counties, yet no formal weather emergency is declared by the Governor or designee and State public offices remain open. Should this situation occur, agency directors and department heads are encouraged to exercise their judgment and discretion to permit non-essential employees to use any accrued vacation, personal or compensatory leave, if such employees choose not to come to work due to extenuating circumstances caused by extreme weather conditions. Non-essential employees with no or inadequate accrued leave may be granted leave without pay. Nothing in this section prevents an appointing authority from using his/her
discretion to temporarily reassign non-essential employees to indoor job duties, consistent with their job classification, so that such employees are not performing unnecessary road- or travel-related duties during days or shifts of especially inclement weather.
B. Other Than Weather Emergency
Employees not designated essential may be required to work during an emergency. When an emergency, other than a weather emergency, is declared by the Governor or designee and Administrative leave with pay is granted for employees not required to work during the declared emergency, such leave is to be incident specific and only used only in circumstances where the health
or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected. Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above. (JX-12) In 2006, the parties negotiated significant changes to the language
regarding emergencies. This was the first time that the State included nonweather related emergencies. It is also the first historical contract for which annotations, created exclusively by the State, were available and provided to the public. The annotations provide significant insight into what the State believed was bargained, and, although the annotations are not reviewed, bargained, or agreed to by the
Union, they do show that the argument that the State has put forward in the instant case is disingenuous and false. It is evident that the parties did NOT intend for the granting of administrative leave with pay to be the “trigger” that the state now claims it was. The intent was to allow the employer to require non-essential employees to utilize their own leave in situations or emergency or place them on administrative leave with pay. The intent and “explanation” provided by the state demonstrates that they understand and know that there is no requirement for administrative leave with pay to be granted for the $8 an hour stipend to be owed.
In the State’s own words: The parties also modified the payment for hours worked during an emergency, “Employees required to report to work or required to stay at work during such weather emergency shall receive pay at time and one-half (1 1/2) for hours their total rate of pay for hours worked during the weather emergency. In addition, employees who work during a weather emergency declared under this section shall receive a stipend of eight dollars ($8.00) per hour worked. Any overtime worked during an emergency shall be paid at double time.” This language also applied to 35.01 B, as it was identified in that language as well. “Payment for hours worked for other than weather emergencies shall be
pursuant to Section 35.01(A) above.” (JX-12) The allegation that the leave is tied to the stipend is in no way supported by this language nor is it supported by the state’s own annotated agreement. The leave is permissive, and the payment is mandatory.
2009-2012 Agreement (JX-13)
The parties did not make any changes to this language in this agreement.
The annotated “explanation” written by the state follows:
“Explanation: Only the Governor, or the Governor’s designee may declare an emergency, weather or otherwise. Employees working during a declared emergency shall receive an $8.00 per hour stipend for hours worked in addition to their total rate of pay for hours worked. Agencies must, no later than October 1st of each year designate a list of essential employees. Employees so designated are to be informed and provided with appropriate documentation.
During extreme weather conditions when a weather emergency is not declared, an Agency may use its discretion and exercise judgment in allowing use of accrued personal, vacation or comp time by employees unable to report to work due to extreme weather conditions, allow employees with no accrued time to be granted leave without pay, or reassign non-essential employees consistent with their job classification. During declared emergencies, other than weather emergencies, Agencies may grant Administrative Leave with pay to employees not required to work during the declared emergency. Any leave granted must be incident specific and only used in health and safety circumstances.” (JX-13)
2012-2015 Agreement (JX-14)
The parties did not change this language in this agreement. The state republished the same “explanation” in the annotated agreement from this year for article 35.
2015-2018 Agreement (JX-15)
The parties made no changes to the language in Article 35 for this agreement. The state did not write annotations for this contract.
2018-2021 Agreement (JX-1)
This is the collective bargaining agreement at issue herein.
2021-2024 Agreement
See the arguments and analysis under the heading “Language that replaced current Article 35 in subsequent CBA” in the Union’s closing. The administrative leave is permissive, as was affirmed by the Fitts decision, and the payment is mandatory, as affirmed by the language, testimony, and annotated CBA’s. The ONLY requirement for the payment of the additional monies, as it remains in the language at issue before the Arbitrator, is the performance of the work, and the State has stipulated that ALL members of SEIU 1199 worked during the period of the declared emergency. (Joint Stipulation-7)
Why declare an emergency at all if the State were going to claim ex post facto that it didn’t need to? Why have language that provides the state the necessary latitude but recognizes no benefit to employees when the latitude is utilized? Why negotiate language that allows the State to require non-essential employees to work during an “other than weather emergency” if they already had that autonomy? Does anyone seriously believe that the State of Ohio would tie a multi-million-dollar benefit to such an uncontrolled and unmonitored trigger? It would be like securing the nuclear launch codes of The United States in an old cigar box or setting the security passcode on the vault at Fort Knox to 12345. Also absent from the State’s case, in the SEIU matter, is any affirmation that the Union had participated in any training similar to that which OCSEA participated in that would have in any way shown Union acquiescence to the state’s allegations of policy HRD-11 having been necessary to indicate an emergency under the language or that it was controlling or relevant in any fashion at all. The State somehow thinks that an annotated contract, written solely by the employer containing requirements and references not contained in the parties CBA are sufficient to support their argument, they are not. There is zero evidence, (because it did not happen), that SEIU took part in any training, or had even read the annotated contracts prior to preparing for the instant hearing, as they have no bearing on the language in question.
“Explanation: Only the Governor, or the Governor’s designee may declare an emergency, weather or otherwise. Employees working during a declared emergency shall receive an $8.00 per hour stipend for hours worked in addition to their total rate of pay for hours worked. Agencies must, no later than October 1st of each year designate a list of essential employees. Employees so designated are to be informed and provided with appropriate documentation. During extreme weather conditions when a weather emergency is not declared, an Agency may use its discretion and exercise judgment in allowing use of accrued personal, vacation or comp time by employees unable to report to work due to extreme weather conditions, allow employees with no accrued time to be granted leave without pay, or reassign nonessential employees consistent with their job classification. During declared emergencies, other than weather emergencies, Agencies may grant Administrative Leave with pay to employees not required to work during the declared emergency. Any leave granted must be incident specific and only used in
health and safety circumstances.
Instructions: Emergencies shall be declared only pursuant to DAS directive 6-03 or its successor. In addition, OCB will issue additional information and instructions during any declared emergency.
35.02 List of Essential Employees The State or the individual Agencies shall provide to the Union a list of essential employees.
Explanation: The Union desired a list of essential employees so that they could inform members as to what duties and obligations they have in a declared weather emergency. 08/2006 1199 Annotated Article 35” (JX-12) Explanations and instructions are listed separately and even though they are
not binding on the parties it is telling that they are provided as just that, explanations for the agencies, which by definition are “explanations: statements or accounts that make something clear.” (dictionary.com) This is allegedly relied on by agency heads, supervisors and management employees to get a more generalized and less legal-ease version of the language. The annotations are not bargained with the Union and are in no way binding on the parties. Language that replaced current Article 35 in subsequent CBA “The State reserves the right to add to, amend, delete from or otherwise alter, amend or modify in whole or in part its proposals during the course of negotiations at any time.
ARTICLE 35 – EMERGENCIES
35.01 Emergency Leave
A. Weather Emergency
Employees directed not to work (e.g. directed not to report to work or sent home from work and not directed to telework) due to a weather emergency as declared by the Director of the Department of Public Safety, shall be granted leave with pay at regular rate for their scheduled work hours during the duration of the weather emergency. The Director of the Department of Public Safety is the Governor’s designee to declare a weather emergency which affects the obligation of State employees to travel to and from work. Employees required to work at the location of the declared emergency (when others are not required to work) report to work or required to stay at work during such weather emergency shall receive their total rate of pay for hours worked during the weather emergency. In addition, employees who are required to work at the location of the declared emergency (when others are not required to work) during a weather emergency declared under this section shall receive a stipend of eight dollars ($8) per hour worked. Employees (essential or non-essential) who are teleworking, directed to telework, or directed to work at an alternative work location shall not be entitled to payment under this Section.
An emergency shall be considered to exist when declared by the Employer Director of the Department of Public Safety, for the county, area or facility where an employee lives or works.
For the purpose of this Section, an emergency shall not be considered to be an occurrence which is normal or reasonably foreseeable to the place of employment and/or position description of the employee.
Each year, by the first day of October, all Agencies must create and maintain a list of essential employees. Essential employees are those employees whose presence at the work site is critical to maintaining operations during any weather emergency. Essential employees normally consist of a skeletal crew of
employees necessary to maintain essential office functions, such as those State employees who are essential to maintaining security, health and safety, and critical office operations.
Employees who are designated as essential employees shall be advised of the designation and provided appropriate documentation. Essential employees shall be advised that they should expect to work during weather emergencies unless otherwise advised. However, they are not guaranteed work. Nothing in this
Section prevents an appointing authority from using his or her discretion in directing sending essential employees home or instructing them not to report for work or sending them home (on leave or to telework) once a weather emergency has been declared. Essential employees who do not report when required during an emergency must show cause that they were prevented from reporting because of the emergency. Employees not designated essential may be required to work during a declared weather emergency.
During the year, extreme weather conditions may exist and roadway emergencies may be declared by local sheriffs in certain counties, yet no formal weather emergency is declared by the Director of the Department of Public Safety Governor or designee and State public offices remain open. Should this
situation occur, Agency directors and department heads are encouraged to exercise their judgment and discretion to permit non-essential employees to use any accrued vacation, personal or compensatory leave, if such employees choose not to come to work due to extenuating circumstances caused by extreme weather conditions. Non-essential employees with no or inadequate accrued leave may be granted leave without pay. Nothing in this Section prevents an appointing authority from using his/her discretion to temporarily reassign non-essential employees to indoor job duties, consistent with their job classification, or to an alternative location so that such employees are not performing unnecessary road- or travel-related duties during days or shifts of especially inclement weather.
B. Other Than Weather Emergency
Employees not designated essential may be required to work during an emergency. When an emergency, other than a weather emergency, is declared by the Director of the Department of Public Safety Governor or designee and Administrative leave with pay is granted for employees not required to work during the declared emergency, such declaration may be for leave is to be incident specific and only used only in circumstances where the health or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected. Payment for hours worked for other than weather
emergencies for employees required to work at the location of the declared emergency (when others are not required to work), shall be pursuant to Section 35.01(A) above. shall be their total rate of pay, as well as an additional stipend of eight dollars ($8.00) per hour worked. Employees (essential or non-essential) who are teleworking, directed to telework, or directed to work at an alternative work location shall not be entitled to payment under this Section. 35.02 List of Essential Employees The State or the individual Agencies shall provide to the Union a list of essential employees.” (UX-2, UX-3)
This is the language that the State both proposed during bargaining in 2021 and what the parties signed as a tentative agreement and ultimately became the new language in the successor agreement. When the parties entered into negotiations in 2021, the State had the benefit of hindsight, having gone through the pandemic and the period of declared emergency, the State was able to craft language and propose changes that exactly reflected the manner, specifics, and ways that the members of the bargaining units were treated during the emergency. The new language is revealing as it captures all of the specifics and latitude that the state claims existed under the language of the 2018-2021 agreement. If the interpretation put forth by the State in this arbitration was truthful, then why would the State find it necessary to propose and secure such significant changes? Significant are the changes which include a new definition of “work” –in the article, which includes now recognizing teleworking as “work”, that was not in this language previously. The State made significant changes to the location(s) of where work can be performed that would not qualify for the $8 an hour stipend, more specifically adding the location of the declared emergency and specifying that others have to be “not required to work” as a new qualifier that does not exist in the language in question. This change proves without any doubt that the 2018-2021 language did not include a requirement that anyone “not work” during the emergency in order for the stipend to be owed. If the stipend is not owed to employees who teleworked under the new language, it MUST HAVE been owed to employees who teleworked under the old language.
Perhaps the most damning part of the new language for the State is the following: “Payment for hours worked for other than weather emergencies for employees required to work at the location of the declared emergency (when others are not required to work), shall be pursuant to Section 35.01(A) above. shall be their total rate of pay, as well as an additional stipend of eight dollars ($8.00) per hour worked. Employees (essential or non-essential) who are teleworking, directed to telework, or directed to work at an alternative work location shall not be entitled to payment under this Section.” (UX-2) The State is arguing that the new language (above), AND this previous language (below) mean the exact same thing. “
B. Other Than Weather Emergency
Employees not designated essential may be required to work during an emergency. When an emergency, other than a weather emergency, is declared by the Governor or designee and Administrative leave with pay is granted for employees not required to work during the declared emergency, such leave is to be incident specific and only used only in circumstances where the health or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected. Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above.” (JX-1)
These two pieces of language DO NOT mean the same thing. They CAN NOT mean the same thing. That is NOT how language works. The two pieces of language are starkly and intentionally different. Why, if the State has the latitude that they claim exists in the 2018-2021 CBA language did they propose such significant changes for the 2021-2024 agreement? Why did they believe they needed to identify that “others” not be required to work for the stipend to be enacted? Why would they choose to exclude from the stipend those who teleworked, were directed to telework, or those who were directed to work at an
alternative location, if the existing language already did so? Why would the State define employees (essential and non-essential) as being excluded from the $8 an hour stipend for working during an “other than weather” emergency if the existing language already provided these specific things? Why would the state secure language that exactly captures the way things worked and were done during the emergency under the 2018-2021 contract in the 2021-2024 contract if their theories and arguments under the 2018-2021 contract are truthful? The honest answer is, they would not, there would be no need to do this, as the then current language would have sufficed, but it clearly did not. The 2018-2021
language and the 2021-2024 language are not the same and prove the Union’s case in chief. The State owes the stipend for all hours worked during the period of declared emergency.
The State Can Afford The Liability That They Owe the Employees
Testimony and exhibits presented at hearing unmistakably demonstrate that the State of Ohio is flush. The fact that they have not only met their financial obligations over the last several years but have been able to amass a savings of nearly $3.5 billion in Ohio’s rainy-day fund shows that the State is fully capable of paying the proper remedy and satisfying the obligation that they committed to in the language of Article 35. Even if the State were unable to pay the proper remedy, the remedy would not become any less proper, it may become an issue of how they would satisfy the obligation, but as is the case, the State can easily satisfy the obligation and still maintain more cash on hand than is required. The State is not required to maintain any cash balance whatsoever, only to run a balanced biennium budget, which they have done and now have the liquidity to honor their contractual obligations without having to dip into the general revenue fund or any other source that could potentially impact other state operations. The
State wrote the check for these funds, the payment is past due on this debt. The State can afford the payment of the obligation they encumbered through this language. The size of the award or the monetary relief owed cannot be a reason for denying the grievance. The remedy is not absurd or out of line. If the state believed that they could not somehow honor a contractual obligation, they should have
approached the Union, or presented some type of argument to that effect at hearing. They did not.
Constitutional Prohibition
The State’s theory that the Governor can negate sections of the Contract through an Executive Order would be a violation of the Ohio Constitution’s Contracts Clause. Section 28, Article II of the Ohio Constitution states, in pertinent part: “The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts.” The United States Constitution also contains a similar prohibition in Article 1, Section 10. Stated simply, the government cannot pass a law that would invalidate an existing contract or part of an existing contract. It may alter obligations of contract in the future but may not do so retroactively.
See generally, Kiser v. Coleman, 28 Ohio St.3d 259, 263 (1986) (Coleman bought land from Kiser that included a forfeiture of the land’s title if Coleman ever defaulted on payment. After the contract was signed, an Ohio Revised Code. 5313.07 and 5313.08 were passed which allowed buyers to keep the title of the land in such situations. The Ohio Supreme Court found application of these laws to a previously formed contract violated the Contracts Provision).
An Executive Order has less force than legislation passed by both the legislative and the executive branch through the lawmaking process. If the legislature and the governor working together are prohibited from passing a law impairing existing contracts, then surely the governor, through and executive order cannot violate the Constitution on his own. Just as legislation could not impair an existing contract, nor can governmental reach solely through the executive branch. The collective bargaining agreement was in existence on March 9, 2020, the date of the Governor’s Executive Order 2020-01D. The language set forth in the emergency pay clause was in existence at the time of the Executive Order. The Governor simply does not have the ability within the bounds of the U.S. or Ohio Constitutions to unilaterally alter the parties’ agreement- especially when he is a party to it.
The state of Ohio, by refusing to recognize the benefit conveyed by the language of Article 35.01 B of the Contract between SEIU District 1199 and the State of Ohio violates the Ohio Constitution’s Contracts Clause. Ohio’s Contracts Clause is directly applicable, and more protective of contractual rights and
obligations than that of the federal constitution. Section 28, Article II of the Ohio Constitution states, in pertinent part, as follows: “The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts. The prohibition against laws that “impair the obligations of contracts” is deeply rooted in Ohio history, extending all of the way back to the Northwest Ordinance.1 Since at least 1875, the Ohio Supreme Court has stressed that, pursuant to this clause, “any change in the law which impairs the rights of either party, or amounts to a denial or obstruction of the rights accruing by contract, is repugnant to the Constitution.”2 In particular, Ohio Courts have always held that “Section 28, Article II, of the Ohio Constitution prohibits laws impairing existing contractual obligations.” 3 In the 1998 case of Ross v. Farmer’s Insurance Group, the Ohio Supreme Court outlined the strict limitations on the legislature’s capacity to pass legislation that alters existing contracts.4 And in Kiser v. Coleman, the Court concluded that “the retroactive application of R.C. 5313.07 and 5313.08 to land installment contracts which were in existence at the time of the enactment of these statutes is violative of Section 28, Article II of the Ohio Constitution which prohibits the enactment of retroactive laws or laws impairing the obligation of contracts.” Consequently, any retroactive application of any executive order to existing contracts between bargaining unit members, their Union(s) and the State of Ohio, where there is a recognized benefit currently in force, violates Ohio’s Contract Clause: Executive Order 2020-01D is being utilized to preclude the parties to a contract from receiving the benefit of the contract that they negotiated and ratified under current Ohio law, ORC 4117.
If the State’s claim that a benefit conveyed by the language of Article 35.01 B of the Contract between SEIU District 1199 and the State of Ohio could be altered by the Governor is true, the Governor’s action are clearly a violation of the Ohio Constitution’s Contracts Clause. Ohio’s Contracts Clause is directly applicable, and more protective of contractual rights and obligations than that of the federal
constitution. Section 28, Article II of the Ohio Constitution states, in pertinent part, “The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts.
Since at least 1875, the Ohio Supreme Court has stressed that, pursuant to this clause, “any change in the law which impairs the rights of either party or amounts to a denial or obstruction of the rights accruing by contract, is repugnant to the Constitution.” If the legislature and the governor working together are prohibited from passing a law impairing existing contracts, then surely the governor, through and executive order cannot violate the Constitution on his own.
If the Governor’s Executive Order 2020-01D purports to limit the emergency pay clause in the collective bargaining agreement (which the Union does not think it attempts to do, but the State argues it does), it impairs the right of SEIU District 1199 under an existing contract. This is constitutionally prohibited. If District 1199’s interpretation of the emergency pay article is correct and its members have a right to emergency pay, then an Executive Order cannot impair that right. It is a not a get-out-of-jail-free card for the State.
The United States Constitution also contains in Article 1, section 10, a similar contracts clause and prohibition on right impairment. “The Contract Clause provides that no state may pass a “Law impairing the Obligation of Contracts,” and a “law” in this context may be a statute, constitutional provision, municipal ordinance, or administrative regulation having the force and operation of a statute.” (https://www.law.cornell.edu/constitution-conan/article-1/section-10/clause1/contract-clause) An executive order would certainly fall within the definition of prohibitions listed. This protection provided, in a similar situation in 2016 in West Virginia, that when so called “Right To Work” laws were passed, the maintenance of membership clauses in existing collective bargaining agreements could not be rendered unlawful or unenforceable, as they existed prior to the enactment of the legislation. The contracts therefore remained in full force and effect until their expiration, at which time the parties could not legally include maintenance of membership clauses in them, as it would violate the newly passed law. The same protections and prohibitions extend to the instant situation, wherein the benefit of the stipend cannot be abridged or negated by a law or executive order, only modified after the expiration of the current agreement, and the benefits established by the contract must continue in full force and effect until expiration. In the instant case, the parties collective bargaining agreement was in full force and effect until it was replaced by a successor agreement in 2021, after the expiration of the period of declared emergency by Governor DeWine. “Arbitrators strive to give effect to the collective bargaining agreement rather than to dismember it, and, whenever two interpretations are possible, one making the agreement valid and lawful and the other making it unlawful, the former will be chosen. The parties are presumed to have intended a valid contract.” (Elkouri and Elkouri 8th Ed. Pg. 472)
Conclusion
“Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement.” (Elkouri and Elkouri 8th Ed. Pg. 100)
The language is clear. The Governor declared an emergency. Period. There is no contractual requirement for the declared emergency to include the implementation of State policy HRD-11. The State has the ability to place individuals on administrative leave with pay if they want to during an emergency, but it is NOT a requirement for the stipend to be owed. The language states that anyone who works during an emergency is to be paid the $8 an hour stipend. “The import is that management has the right to make such changes, but the right is accompanied by an obligation to make the contractually specified payment to employees.” (Elkouri and Elkouri 8th Ed. Pg 712)
“It is axiomatic in contract construction that an interpretation that tends to nullify or render meaningless any part of the contract should be avoided because of the general presumption that the parties do not carefully write into a solemnly negotiated agreement words intended to have no effect.” (Elkouri and Elkouri 8th ed. Pg. 464)
You cannot legislate virtues or negotiate morals. The parties made a deal. The employees held up their end of the bargain. The employees performed the work during the emergency. The employer obtained the benefit of that work being accomplished during the worst pandemic our planet has ever endured in modern times. That was the totality of the bargain. The State is asking the Arbitrator to ignore the plain meaning and expected and reasonable outcome of a negotiated provision in the parties CBA and absolve the employer of the promise that was made. What is more reasonable what is more probable? What is most likely to be the true intent of the parties? What does the language actually say? Fiat Justitia Ruat Caelum – “Let Justice Be Done though the Heavens may fall.”
Do the right thing regardless of the consequences.
“In 1933, Judge Horton set aside the death sentence of Patterson, one of nine black men who were wrongfully convicted of raping two white women in Alabama. Horton quoted the phrase when explaining why he made his decision, even though he knew it would mean the end of his judicial career. The maxim signifies the belief that justice must be realized regardless of consequences.” (https://en.wikipedia.org/wiki/Fiat_justitia_ruat_caelum)
Requested Remedy
For the reasons set forth above the Union respectfully requests that the Arbitrator sustain the grievance in its entirety and that the Arbitrator determine that the employer did in fact violate the terms of the parties CBA when they failed/refused to pay the $8 stipend identified in Article 35. The Union also requests that the Arbitrator issue a “made whole” remedy in order to ensure that all members, including those who have since left State service due to retirement or the like, can be properly compensated for their lost monies under this award. The Union further requests that the Arbitrator retain jurisdiction over his award to resolve all matters of back pay and benefits and any subsequent actions awarded, which cannot be agreed upon between the parties, have been resolved.
Respectfully submitted,
Joshua D. Norris
Executive Vice President
Union Advocate
SEIU District 1199 WV/KY/OH
JNorris@seiu199.org
614-461-1199
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