Sunday, April 6, 2014

Reinstatement but no back pay- Does vacation accrue during time off?

Arbitrator Joseph Daly has issued an award clarifying his remedial orders in two prior cases. In both cases, Arbitrator Daly ordered the grievants reinstated but denied back pay and benefits from the time of termination until reinstatement and further provided that grievants would return with the same seniority and benefits that were receiving on the date of termination.

Following their reinstatement, the Union filed a new grievance on their behalf, alleging that they had not been allocated their proper vacation while on suspension. It relied, in part, on language in the cba that "No discipline by suspension shall be administered to any member of the Local Union which shall impair his/her seniority rights." The employer denied the grievance, maintaining that the dispute was simply one of interpreting the arbitrator's award, and that in any case, since accrued vacation had been paid out at the time of termination, allocation of vacation for their time off would put grievants  in a better position than employees who had not been terminated.

Observing that the dispute involved "a collision between reason and equity," Arbitrator Daly rejected the Union's position. He noted:

When the arbitrator returned [Grievants] to their jobs and overturned the terminations, he intended to make clear by the remedy that each had done something very wrong. The long-term suspensions with “no back pay or benefits from the time [he/she] was terminated up to [his/her] return was intended not to reward either for their behavior.” This arbitrator did not intend to allow the accrual of vacation time during a long time suspension while not providing “service” to the company. While the contract makes clear that upon return the employee returns with the same seniority, there is nothing in the contract that says that the employee should accrue vacation time while not providing any “service” to the company. Equity cannot allow the contract to be interpreted to allow accrual of vacation time while not providing “service” and facing a long-term suspension for the behavior of the employee. This arbitrator did not intend for a “double payment” or a “windfall” to either. To allow [Grievants] credit for vacation purposes for the period of their unpaid suspensions is directly contrary to the language of the awards. ...

Arbitrator Daly rejected the Union's position that the contract clearly and unambiguously provided that only service and seniority determine vacation accrual. While agreeing that the cba provided that grievants would not lose seniority when they return from suspension, he found "nothing in the contract that says they are providing 'service' and do not lose the accrual of that service while on long term suspension."

Arbitrator Daly's Award in Xcel Energy and IBEW Local 23 can be found here.

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