Article 34
Grievance and Arbitration Procedure
34.1 Definition of
Grievance
(a) A contract grievance
is a dispute concerning the interpretation, application or claimed violation of
a specific term or provision of this Agreement. Other disputes which do not
involve the interpretation, application, or claimed violation of a specific
term or provision of this Agreement including matters as to which other means
of resolution are provided or foreclosed by this Agreement, or by statute or
administrative procedures applicable to the State, shall not be considered
contract grievances. A contract grievance does not include matters involving
the interpretation, application or claimed violation of an agreement reached
pursuant to any previously authorized departmental negotiations.
(b) Any other dispute
or grievance concerning a term or condition of employment which may arise
between the parties or which may arise out of an action within the scope of
authority of a department or agency head and which is not covered by this
Agreement shall be processed up to and including Step 3 of the grievance
procedure, except those issues for which there is a review procedure
established by law or, pursuant to rules or regulations filed with the
Secretary of State.
34.2 Requirements for Filing Contract Grievances
(a) A contract grievance shall be submitted, in writing, on forms to be provided by the State.
(b) Each contract grievance shall identify the specific provision of the Agreement alleged to have been violated, and shall contain a short plain statement of the grievance, the facts surrounding it, and the remedy sought.
(c) If the contract grievance identifies Article 45,
34.3Representation
(a) PEF shall have the exclusive right to represent any employee or employees, upon their request, at any Step of the grievance procedure, provided, however, individual employees may represent themselves in processing grievances at Steps 1 through 2.
(b) PEF shall have the right to initiate at Step 2 a grievance involving employees at more than one facility of a department or agency and to initiate at Step 3 a grievance involving employees at more than one department or agency. Any such grievance shall identify the act or omission giving rise to the grievance, shall identify the specific issue in the grievance, shall describe the common characteristic(s) of the employees that cause the employees to have been similarly affected by the act or omission giving rise to the grievance, shall specify the names of such employees if possible or, where the names cannot be specified, shall contain a description of the "class." Such description shall include such information as is appropriate and necessary to identify the employees who have been affected in the same manner by the act or omission giving rise to the grievance including, where relevant, but not limited to, title, occupational category, work location, hours of work, length of service or other characteristics common to the class.
(c) The State shall have the right
to initiate grievances against PEF at Step 4.
34.4 Grievance Steps
Prior to initiating a formal written grievance pursuant to this Article, an employee or PEF is encouraged to resolve disputes subject to this Article informally with the appropriate immediate supervisor.
(a) Step One: The employee or PEF shall present the grievance to the facility or institution head or a designated representative not later than 30 calendar days after the date on which the act or omission giving rise to the grievance occurred. The facility or institution head or designated representative shall meet with the employee or PEF and shall issue a short plain written statement of reasons for the decision to the employee or PEF not later than 20 working days following the receipt of the grievance.
(b) Step Two: An appeal from an unsatisfactory decision at Step 1 shall be filed by the employee or PEF, on forms to be provided by the State, with the agency or department head or the designee within 10 working days of the receipt of the Step 1 decision. Such appeal shall be in writing and shall include a copy of the grievance filed at Step 1, a copy of the Step 1 decision and a short plain written statement of the reasons for disagreement with the Step 1 decision. The agency or department head or a designee shall meet with the employee or PEF for a review of the grievance and shall issue a short, plain written statement of reasons for the decision to the employee and to the President of PEF or the President's designee no later than 20 working days following receipt of the Step 1 appeal.
(c) Step Three: An appeal from an unsatisfactory decision at Step 2 shall be filed by PEF through its President or the President's designee, on forms to be provided by the State with the Director of the Governor's Office of Employee Relations, or the Director's designee, within 30 working days of the receipt of the Step 2 decision. Such appeal shall be in writing, and shall include a copy of the grievance filed at Step 1, and a copy of all prior decisions and appeals, and a short, plain written statement of the reasons for disagreement with the Step 2 decision. The Director of the Governor's Office of Employee Relations, or the Director's designee, shall issue a short, plain written statement of reasons for the decision within 30 working days after receipt of the appeal. A copy of said written decision shall be forwarded to the President of PEF, or the President's designee.
(d) Step Four, Arbitration:
(1) Contract grievances which are appealable to arbitration pursuant to the terms of this Article may be appealed to arbitration by PEF, by its President or the President's designee, by filing a demand for arbitration upon the Director of the Governor's Office of Employee Relations within 15 working days of the receipt of the Step 3 decision. If the Step 3 decision has not been issued within the time period for the issuance of such decision, a demand for arbitration may be filed by the President of PEF or the President's designee at any time after expiration of the time period established for the issuance of the Step 3 decision, except that in no case may a demand for arbitration be filed later than 15 working days after receipt of the Step 3 decision.
(2) The demand for arbitration shall identify the grievance, the department or agency involved, the employee or employees involved, and the specific term or provision of the Agreement alleged to have been violated.
(3) Within a reasonable time after the effective date of this Agreement, the Director of the Governor's Office of Employee Relations and the President of PEF, or their designees, shall meet to agree upon a panel of arbitrators selected from lists submitted by the parties. The composition of the panel of arbitrators shall be agreed to by the State and PEF and such panel shall serve for the term of this Agreement. After receipt of the demand for arbitration, the parties shall meet to select an arbitrator from this panel. The essential method of selection of the arbitrator for a particular case shall be by agreement and, if the parties are unable to agree, the arbitrator shall be assigned from this panel on a rotating basis. Initial assignment for rotation shall be determined by lot.
(4) Arbitrators shall have no power to add to, subtract from or modify the terms or provisions of this Agreement. They shall confine their decision and award solely to the application and/or interpretation of this Agreement. The decision and award of the arbitrator shall be final and binding consistent with the provisions of CPLR Article 75.
(5) Arbitrators shall confine themselves to the precise issue or issues submitted for arbitration and shall have no authority to determine any other issues not so submitted to them nor shall they make observations or declarations of opinion which are not essential in reaching the determination.
(6) All fees and expenses of the arbitrator shall be divided equally between parties. Each party shall bear the cost of preparing and presenting its own case.
(7) Any party requesting a transcript at an arbitration hearing may provide for one at its expense and, in such event, shall provide a copy to the arbitrator and the other party without cost.
(8)(a) The arbitration hearing shall be held within 60 working days after receipt of the demand for arbitration or as soon thereafter as is practicable.
(b) The arbitration decision and
award shall be issued within 30 calendar days after the hearing is closed by
the arbitrator.
34.5 Procedures Applicable to Grievance Steps
(a) Steps 1 and 2 shall be informal and the grievant and/or PEF shall meet with the appropriate step representative for the purpose of discussing the grievance, and attempting to reach a resolution.
(b) No transcript is required at any Step. However, either party may request that the review at Step 2 only be tape recorded at its expense and shall provide a copy of such tape recording to the other party.
(c) Step 3 is intended primarily to be a review of the existing grievance file; provided, however, that additional exhibits and evidence may be submitted in writing.
(d) Any meeting required by this Article may be mutually waived.
(e) All of the time limits contained in this Article may be extended by mutual agreement. Extensions shall be confirmed in writing by the party requesting them. Upon failure of the State, or its representatives, to provide a decision within the time limits provided in this Article, the grievant or PEF, as appropriate at each step, may appeal to the next step. Upon failure of the grievant, or the grievant's representative, to file an appeal from a written decision issued by the State or its representatives within the time limits provided in this Article, the grievance shall be deemed withdrawn.
(f) A settlement of or an award upon a contract grievance may or may not be retroactive as the equities of each case demand, but in no event shall such a resolution be retroactive to a date earlier than 30 days prior to the date the contract grievance was first presented in accordance with this Article, or the date the contract grievance occurred, whichever is the later date.
(g) A settlement of a contract grievance in Steps 1 through 3 shall constitute precedent in other and future cases only if the Director of the Governor's Office of Employee Relations and the President of PEF agree, in writing, that such settlement shall have such effect.
(h) The State shall supply in writing, with each copy of each step response, the name and address of the person to whom any appeal must be sent, and a statement of the applicable time limits for filing such an appeal.
(i) All contract grievances, appeals, responses and demands for arbitration shall be submitted by certified mail, return receipt requested, or by personal service. All time limits set forth in this Article shall be measured from the date of certified mailing or of receipt by personal service. Where submission is by certified mail, the date of mailing shall be that date appearing on the postal receipt.
(j) Working days shall mean Monday through Friday, excluding holidays, unless otherwise specified, and days shall mean calendar days.
(k) The State and PEF shall prepare, secure introduction and recommend passage by the Legislature of such legislation as may be appropriate and necessary to establish a special appropriation fund to be administered by the Department of Audit and Control to provide for prompt payments of settlements reached or arbitration awards issued pursuant to this Article.
(l) The purpose of this Article is to provide a prompt, equitable and efficient procedure to review grievances filed by an employee or PEF. Both the State and PEF recognize the importance of the reasonable use of and resort to the procedure provided by this Article and the timely issuance of decisions to filed grievances among other aspects of the procedure provided by this Article. Representatives of the Governor's Office of Employee Relations and PEF shall meet at mutually agreed upon times to discuss and take the necessary steps to resolve matters of mutual concern in the implementation and administration of this procedure.
(m) A claimed failure to follow the procedural provisions of Article 33, Discipline Procedure, shall be reviewable in accordance with the provisions contained in that Article.
(n) Following issuance of the decision at Step 2
but prior to the appeal by PEF to Step 3, a grievance may be amended to specify
a different term or provision of the Agreement alleged to have been violated
than specified at the submission of the grievance at Step 1. The amended grievance shall be forwarded by
PEF to the agency or department head or the designee within 30 working days of
the receipt of the Step 2 decision. Such
amendment shall be in writing, and shall include a copy of the grievance filed
at Step 1, a copy of all prior decisions and appeals, including the Step 2
decision, and a short, plain written statement noting the new term or provision
of the Agreement alleged to have been violated.
The agency or department head or a designee shall issue a short, plain
written statement of reasons for the decision with respect to the new term or
provision of the Agreement to the President of PEF no later than 20 working
days following receipt of the amended grievance. Grievances may be amended only once in
accordance with the terms of this subdivision, and any other amendment(s) to
the grievance shall not be permitted at any time.