## Facts

- Wright County (the County) and the American Federation of State County and Municipal Employees, AFSCME Council 65 (the Union) were parties to a collective bargaining agreement (CBA).
- The CBA required employees to complete a six-month probationary period before receiving the CBA’s protections, including access to the grievance procedure.
- On January 15, 2008, the County hired the employee at issue on a half-time basis.
- In September 2008, the employee suffered an injury.
- The injury resulted in a leave of absence from November 2008 through February 2009.
- In February 2009, the County terminated the employee.
- The Union filed a grievance challenging the termination.
- The County raised a threshold objection, asserting the employee was still probationary and therefore could not pursue a grievance under the CBA.
- The County contended that, for years, it had treated part-time employees’ probation as “prorated,” so that a half-time employee served a one-year probationary period rather than six months, even though the CBA stated a six-month probation for all employees.
- The County also argued that the employee’s medical leave tolled (paused) the probationary period, keeping the employee in probationary status at the time of discharge.
- The Union argued that the CBA’s six-month probation applied as written and could not be extended based on an asserted practice that conflicted with the contract’s text; the Union also argued the leave did not extend probation absent contract language.
- The parties agreed to submit the threshold arbitrability question to arbitration before arbitrating any merits issues concerning the discharge.

## Issues

1. Whether the CBA’s six-month probationary period applied to a half-time employee as written, or whether the County could extend probation based on an asserted practice of prorating probation for part-time employees.
2. Whether the employee’s medical leave tolled the probationary period absent express CBA language providing for tolling.
3. Whether, in light of the probation analysis, the discharge grievance was subject to the CBA’s grievance-arbitration procedure.

## Decision

- The arbitrator held that the CBA’s express six-month probationary period governed the employee’s status.
- The arbitrator rejected the County’s argument that an asserted practice of prorating probation for part-time employees could override or contradict the CBA’s probation language.
- The arbitrator rejected the County’s claim that the employee’s leave of absence tolled the probationary period where the CBA did not provide for tolling or measurement of probation by hours worked.
- The arbitrator concluded the employee was not a probationary employee at the time of the February 2009 termination under the CBA’s six-month probation provision.
- Because the employee was not probationary, the arbitrator found the grievance substantively arbitrable and permitted the parties to proceed to arbitration on the merits of the discharge.

## Legal Principles

- When a CBA states a probationary period in clear terms, that language controls employee eligibility for contractual protections and access to the grievance procedure.
- Past practice may assist in interpreting ambiguous contract language, but it generally cannot contradict clear probation language to restrict or expand negotiated rights.
- Absent contract language tying probation to hours worked or expressly pausing probation during absences, a leave of absence will not extend a time-based probationary period.
- Arbitrability may be decided as a threshold matter by determining whether the grievant falls within the CBA’s coverage for grievance-arbitration rights at the time of the challenged action.

## Conclusion

The arbitrator determined that the CBA’s plain six-month probation period governed the half-time employee’s status and could not be extended by an asserted prorating practice or by treating medical leave as tolling probation without supporting contract language; accordingly, the employee was not probationary when terminated and the discharge grievance could proceed under the CBA’s grievance-arbitration process.


In re Wright County and American Federation of State County and Municipal Employees, AFSCME Council 65, 127 Lab. Arb. Rep. 811 (2009)