Arbitrator says YSU must give back-pay

By Denise Dick



Youngstown State University must give back-pay to 60 members of its Association of Classified Employees who it improperly converted to a different pay schedule, according to an arbitrator’s opinion.

“What the employer did was isolate the lower-seniority employees’ pay rates, hoping that the union would not aggressively pursue vindication of the rights of a small minority,” arbitrator Stanley T. Dobry of Warren, Mich., wrote in his Sept. 28 opinion. “Management came up with a unique plan to exploit the perceived holes in the language. However, these very holes were items which the union had carefully tried to avoid.”

The binding decision affects employees hired between Aug. 16, 2005, and Aug. 16, 2008. The university “unilaterally” took action, converting the employees, placing them in Step One of the pay scale rather than in the step for their “achieved status, initial probation or completed probation,” the opinion says. It affected the employees who had completed their initial probation, resulting in “an inequity in the newly negotiated salary schedule.”

Ron Cole, YSU spokesman, said the university will abide by the arbitrator’s decision. “It’s a matter of doing those calculations and getting those payments out to folks,” he said.

Some, if not all of those employees, will get a pay adjustment, Cole said. “We’re just now looking at what the total cost of all of it is.” Christine Domhoff, ACE’s grievance chairwoman, said the opinion is fair and reasoned.

“Like it says, both sides had the opportunity to present their side,” she said.

Domhoff said the grievance was filed in November 2008 after other attempts to resolve the dispute failed.

The union contended that the two sides agreed to a single new indexed salary schedule to replace three very different pay and longevity schedules.

The university didn’t call its chief negotiator nor any members of its negotiating team as witnesses.

The union argued that Craig Bickley, the university’s former chief human resources officer, “unilaterally” changed the conversion method after the contract was approved by both sides. It was changed because “Mr. Bickley simply asserted it ‘cost too much,’” the union said, according to the decision.

Bickley resigned in January 2009 after being put on administrative leave the previous month following an investigation into concerns raised about the three-year ACE contract for which Bickley had served as the chief university negotiator.

That agreement included a job reclassification that raised the salary of one employee, Ivan Maldonado, former ACE union president, by $21,000 a year. Maldonado, the union’s only witness in the arbitration hearing, was fired and faces criminal charges. He is appealing the termination.

The university argued that it implemented the conversion process consistent with its position during negotiations and during committee meetings.

“The union had the burden of proof,” YSU contended. “It utterly failed in its attempt and provided uncorroborated and obviously biased testimony of the local union president. This was all in a vain attempt to disregard and modify the solemn written promises and to undo the carefully balanced mutual concessions” in the labor agreement.

YSU contended that there is no language supporting the union’s claim. The union, however, argued that’s because both sides had agreed, so it wasn’t addressed in the agreement.

The arbitrator agreed with the union.

“This was never proposed, precisely because the employer skillfully assured the union that there was a mutual understanding and no need to discuss the matter further, and that the matter would be resolved,” the arbitrator wrote.

The university had the opportunity to produce any of its negotiation team members or their chief negotiator for the collective bargaining agreement, but instead produced witnesses who had neither negotiated the agreement nor reviewed implementation of its language, Dobry wrote.

“The university’s intent is clear that there was no plan to implement the contract they had just negotiated with the union,” he said.

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