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Arbitrator Sides with APC in Grievance over Early Termination of Temporary Appointments

Orders CSU to Make Employee Permanent; Cease and Desist from Violating CBA in Future

10/07/2013

Section 13.7(B) of the APC-CSU Collective Bargaining Agreement (CBA) provides:

“Full-time incumbent temporary employees with four (4) or more years of consecutive full-time temporary service in a classification series on the campus as of the date of the tentative agreement shall be awarded permanency at a one hundred percent (100%) time base in the classification held at the time permanency is granted.”

Section 13.8(B) contains a similar provision covering part-time temporary employees with a time base of fifty percent (50%) or more.

At Sonoma State University, management terminated temporary Unit 4 employees before the expiration of their appointments for the sole – and admitted – purpose to defeat their right to permanency after four consecutive years of service. These employees were grant-funded. They had been there for years, and there was no indication whatsoever that the federal grants at issue will not be renewed any time soon. Nevertheless, management claimed:  “In times such as these when we lack committed funds to guarantee that we can keep and pay the permanent employees we have, it would be irresponsible to take on more such employees.” As you may know, the percentage of permanent employees has steadily declined over the last decade, which made this grievance especially important.  

CSU cynically argued that it was keeping down the number of permanent employees to “minimiz[e] the risk of layoff.” Only too true: If you terminate temporary employees now, you don’t have to lay them off later, once they have become permanent. APC suspects that the employees in question would prefer “the risk of layoff” in the future over the certainty of being terminated now.

CSU also lamented: “Allowing temporary employees to complete their fourth year appointment and gain permanence strips the University of . . . flexibility . . . .” Instead of “flexibility,” read: “the ability to do as it pleases.”  That is, of course, the “problem” with collective bargaining:  Once CSU entered into a collective bargaining agreement with APC, it lost some of its much-cherished “flexibility” and now can no longer lord it over Unit 4 employees as it pleases.  And that’s a good thing as far as Unit 4 employees are concerned.

In a Decision and Award dated September 30, 2013, Arbitrator Fred D’Orazio sided with APC. Arbitrator D’Orazio found that “[t]he University’s view . . . renders the mandatory language promising permanency in [the above-quoted] sections . . . almost meaningless or at least ineffective” and that “the University’s interpretation would effectively transform a clause whose very purpose is to provide the promise of permanency into one that grants campus presidents unfettered authority and for all intents and purposes eclipses that promise.”  This, the Arbitrator also found, “would lead to an unreasonable and harsh result.”  He ordered Sonoma State University retroactively to make the named grievant permanent and to make him whole with interest for any lost salary or benefits.  He also ordered the University “to cease and desist from terminating Unit 4 appointments immediately prior to their expiration date so as not to have to grant the incumbents permanency.”

Sonoma State University APC Chief Steward Edie Brown and APC Labor Relations Specialist Barbara Peterson initially investigated the issue, filed the grievance, and represented the grievant at Level I and II; APC Senior Labor Relations Specialist Bernhard Rohrbacher represented the grievant at arbitration.