By Anthony Rice
In Spokane Valley Fire Dep’t, Arbitrator Guy Coss dismissed a Spokane Valley Fire Department (SVFD) employee’s grievance as not arbitrable, because he exhausted his remedy by first appealing to the Civil Service Commission.
The grievant was a captain employed by the SVFD. The grievant claims to have “occasionally used his SVFD e-mail account to send e-mails that the SVFD characterized as ‘personal e-mails.’” The employer’s e-mail policy prohibits the use of its e-mail for “any purpose except official business.” In a letter, the employer advised the grievant that they believed he was violating the policy and ordered him to cease the conduct. The grievant responded by “continu[ing] to use his SVFD e-mail as he had previously.” A letter of counseling followed for his continued conduct and insubordination for disregarding the employer’s direct orders to cease and desist. In his response the grievant stated he “continued with his activities.” This game of defiance by the grievant, and discipline by the employer, continued until eventually the grievant was terminated for his continued conduct, as well as insubordination for disregarding the employer’s direct order.
The key to this case is that the grievant initially appealed his termination to the Civil Service Commission instead of arbitrating the grievance. A hearing was held by the Commission which issued an order of findings and decision upholding the employer’s termination of the grievant. Then the IAFF filed a grievance on behalf of the grievant. However, the parties CBA states, “[t]he parties hereby agree that members may not litigate any matter . . . both through the arbitration hearing that is provided for as part of this grievance procedure and through a Civil Service hearing.” The union asserts that this grievance is unique, because it deals with discipline other than the termination which was the issue before the Civil Service Committee.
The arbitrator, however, found that accepting this argument would essentially nullify the words of the CBA:
Finding that this grievant could unilaterally identify individual parts of a discreet and necessarily related pattern of conduct and discipline as “separate” causes for purposes of choosing one of the two contractual procedures would conflict, or nullify, rather than be in tune with, the clear purpose of the parties’ agreement.
Editor’s Note (Jim Cline): The union’s argument as reported here was puzzling, to say the least. The CBA language was express in its terms of cover all grievances. Had they seriously wanted this tried by an Arbitrator, they should never have filed the civil service appeal. This is a lesson for Union representatives. When Employees are fired and want to immediately file their Civil Service Appeals, you need to be alert to any “election of remedies clauses.” Clauses such as the one here are common.
