Sunday, April 20, 2014

CBA's non-discrimination clause compels County to recognize out of state same sex marriage

The cba between the Ohio Public Utilities Commission and the Ohio Civil Service Employees Association provides for bereavement leave in a variety of circumstances. One of those circumstances was for the death of "mother-in-law" or "father-in-law". Two unit employees, each of whom was married in an out of state ceremony to a same sex spouse, sought leave under this provision. The County denied the requests, maintaining that because Ohio law limited  marriage to unions between a man and a woman, same sex partners were not "spouses", and therefore the partner's parent did not qualify as an in law. The Union grieved the denial, arguing that federal law required the state to treat grievants' marriage was it would that of opposite sex couples. In particular, the Union relied on language in the cba's non-discrimination provision that "Neither the Employer nor the Union shall discriminate in a way inconsistent with the laws of the United States or the State of Ohio on the basis of ... sexual orientation ...." It also argued that because the cba used the terms spouse as well as significant other, those terms should be interpreted to be interchangeable.

Arbitrator Sarah R Cole has issued an award, relying on the Supreme Court's decision in United States v. Windsor, upholding the Union's grievance. Noting the non-discrimination provision's reference to federal law, Arbitrator Cole concluded:

Since Windsor was decided, every federal district court considering the impact of Windsor on state defense of marriage acts have issued opinions supporting the rights of same-sex partners to have their valid out-of-state marriages recognized for rights and benefits purposes. ... Thus, current federal law requires the State of Ohio to recognize out-of-state marriages or civil unions. ...
As a result, the Grievants' partners must be considered "spouses" for purposes of applying the CBA's bereavement leave provisions.

In light of her decision on this point, the Arbitrator found it unnecessary to consider the Union's alternate argument.

OCSEA links to Arbitrator Cole's Award (No. 1129)  here.

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