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Issue of whether employer must bargain over nosmoking policy does not fall within the definition of a grievance. 48 An employer impairs the integrity of a bargaining unit by assigning duties traditionally performed by supervisors to bargaining unit members. Such duties dilute management authority as well as the integrity of the bargaining unit. Assignment of supervisory work is a grievable, and thus arbitrable, issue under §25.01, since §1.03 says the employer will not take action for the purpose of eroding the bargaining units. §19.03 does not prevent arbitration of the issue because the job audit process is not designed to be dispositive of the issue of whether grievant had been assigned some supervisory work. 127 Section 25.01 (D) is not applicable to the appeal to arbitration step. 187 Although the grievant received the order of termination on May 29, he worked on June 1. It may very well be that the substance rather than the form of termination took place on June 1. In light of the timeliness of grievance filing issue raised by the state, I believe it would be highly inappropriate to utilize May 29 as the date of termination of the grievant rather than June. 188 While the arbitrator ruled that a probationary removal is not generally arbitrable, She found that the issue of sex discrimination is arbitrable under 2.01 and 25.01. 207 Article 25, Section 25.01 (B) specifically contemplates the possibility of a class action grievance and one grievant representing a group. The language of the grievance itself clearly indicated an intent for it to be handled as a group grievance. While the grievance is signed by one grievant in this case, by its specific terms it is filed on behalf of all members that are affected. On its face, it is clearly brought on behalf of the group and cannot be seen as referring to an individual grievant. 297 The arbitrator may review layoffs. The arbitrator does not have the authority to indicate to the State Highway Patrol where it may or may not conduct its investigations. Arbitrators are generally reluctant to issue advisory opinions or ‘declaratory judgments.’ Elkouri How Arbitration Works and Trans World Air Lines 47 LA 1127 (Platt 1967). It is best to draw conclusions based on facts and not hypothetical situations. 325 The arbitrator could not modify the discipline since the employer showed by clear and convincing evidence that the grievant abused a youth. 328 A grievance dealing with job abolishments and layoffs is arbitrable. The jurisdiction of an arbitrator extends only to those matters which the parties by their Agreement empower the arbitrator to hear. Article 5 is not without limitations, “Such rights shall be exercised in a manner which is not inconsistent with this Agreement.” Section 25.01 enables an arbitrator to decide any difference, complaint or dispute affecting terms and/or conditions of employment regarding the application, meaning or interpretation of the Agreement. The procedural and/or substantive underpinnings of an abolishment decision dramatically impact employee’s terms and conditions of employment. A limitation on the powers of an arbitrator need to be clearly and unequivocally articulated; a reserved rights clause does not serve as an adequate bar. 340 The grievant had a thirty day time limit on filing her grievance starting from the date the grievant became or reasonably should have become aware of the occurrence giving rise to the grievance. The event giving rise to the grievance occurred when the grievant continued to be carried as a probationary employee after sixty days of employment. The grievant had thirty days form the date when she was wrongfully listed as a probationary employee. The Union’s argument that the grievant was not harmed until she was later removed was dismissed. The arbitrator found that as soon as the grievant was kept on probationary status and did not receive the full protection and rights of seniority status that was the triggering event. The employer is also not liable for the training of the employee in her right to bring a grievance. The employer did not act in bad faith to keep the grievant in the dark as to her rights. The employee also had worked for the State previously and had adequate time to discover the issue of her probationary status and raise it in a timely fashion. The grievance was not arbitrable since it was untimely. 344 For the Union to ask the arbitrator to interpret and apply the Fair Labor Standards Act, when
the possible violation was not brought up until the arbitration hearing smacks of unfairness. The carefully drawn class grievance has been in the pipeline for two years and the possible FLSA violation by the employer should have been brought before the hearing. The arbitrator does not wish to categorically hold that every issue must always be explicitly raised in the initial grievance. Many times grievances are drawn by persons who are untutored in specificity. Holding such persons to highly formalistic rules is unfair; pleading by inference in such cases is just. Even if the Union’s charge that the employer violated the FLSA was timely, the arbitrator would still decline to rule on that issue. The interpretation and the incorporation of the FLSA is beyond the competence of the arbitration process. FLSA rights are “better protected in a judicial rather than an arbitral forum.” Barrentine v. Arkansas Best Freight Systems J. Brennan. 345 The timelines of the Agreement are clear and mandatory. A grievance filed at Third Step must be filed within fourteen days of notification. In the event the deadline is missed the grievance is deemed withdrawn. 347 If the grievant or the Union had some misgivings regarding the Step 2 outcome, they had an affirmative duty to present the employer with a grievance in writing within ten days of the Step 2 response. Nothing in the record indicates that the parties mutually agreed to extend the time limits. The grievant received and partially concurred with the Step 2 response and yet he waited approximately a year to formally raise his concerns with the Labor Relations Officer. A subsequent event, when the grievant tried to refile his request for travel allowances could be said to again start the thirty day grievance time limit. The grievant did not file within thirty days of this event. The arbitrator found that the settlement of the grievant’s claim served as a settlement for all similarly situated employees. 351 The untimely Step 3 grievance is deemed withdrawn and is not arbitrable. The arbitrator was reluctant to summarily dismiss grievance son purely technical grounds. At the same time, he recognizes his limitations. The arbitrator does not have the power to dispense justice or fairness if doing so would violate the Agreement. 353 The arbitrator rejected the employer’s position that since the grievants accepted their employer’s mileage limitation policy for four weeks they therefore waived their right to grieve. Each time the grievants were not reimbursed for their mileage a new grievable event occurred. That nearly four months of these events took place before a grievance was filed does not make a reoccurrence in the fourth month unarbitrable. What matter is whether the grievance was filed within the time limitations of any one of the events. The denial of mileage reimbursement is held to be a continuing act and since the grievant filed ten days following the last in the series, it was timely and therefore arbitrable. 355 The way in which the agency controlled the hearing and the speed with which it imposed the removal indicate a cavalier approach to just cause requirements. The question the employer was obliged to ask and answer before deciding on discipline was: In view of the misconduct, its aggravating and mitigation factors, what amount of discipline is likely to be corrective? When an employer acts against an employee precipitously, in knee jerk fashion, its actions become suspect. Summary discipline opens the door for arbitral intrusion. It licenses the arbitrator to substitute his/her judgment for management’s. It is up to the arbitrator to perform the employer’s job when the employer fails to perform it. Second guessing by an arbitrator should be expected when management neglects its disciplinary duties. 357 The grievant’s basis of refusal to return to work was that he was under a doctor’s care and the doctor had not yet ordered him back to work. For his same injury three separate specialists agreed the grievant could return to work. Another reason the grievant gave was that he was under medication and could not drive. The grievant could not support either excuse. The mere fact that drugs were prescribed does not prove that the doctor ordered them used to such an extent that the grievant could not drive. There was just cause for the grievant’s removal. 359 The case was determined to be arbitrable since the notifying event was the purging of the overtime rosters. This caused the grievant to be aware that any inequity in the past overtime distribution could not be rectified through additional overtime opportunities. Until the grievant saw the posting he relied on assurances by management that his overtime would be
Page 1 and 2:
INDEX BY CONTRACT SECTION ARTICLE 1
Page 3 and 4:
this case, one cannot conclude that
Page 5 and 6:
Muskingum Counties that were consol
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in Article 24.04 as a meeting. The
Page 9 and 10:
Article 2.01 requires that neither
Page 11 and 12:
The Arbitrator found that when the
Page 13 and 14:
hardship when an employee was on Un
Page 15 and 16:
determined that through Article 5,
Page 17 and 18:
The grievant had a thirty-day time
Page 19 and 20:
Management established a list of in
Page 21 and 22:
the FR clothing during these five m
Page 23 and 24:
11.11 - Concern for Pregnancy Hazar
Page 25 and 26:
of the contract occurred. Based upo
Page 27 and 28:
“In paragraph 3…the word “win
Page 29 and 30:
overtime. The arbitrator found that
Page 31 and 32:
an educated guess, the grievance mu
Page 33 and 34:
2. The Agreement also designates th
Page 35 and 36:
which this particular agreement did
Page 37 and 38:
In this case the Union grieved that
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Arbitrator held that the Grievant f
Page 41 and 42:
when he was placed back into his fo
Page 43 and 44:
selected because she was within ten
Page 45 and 46:
she was in Section 17.04 applicant
Page 47 and 48:
for a new DCS Assessment. The union
Page 49 and 50:
won is not sufficient to prove incr
Page 51 and 52:
Ohio Revised Code 145.298 requires
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18.04 (formerly Article 18.03 of 19
Page 55 and 56:
establishes that the just cause sta
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suspension would be excessive and u
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employee cannot be on “notice”
Page 61 and 62:
grievant was a nine-year employee w
Page 63 and 64:
not lead to the conclusion that the
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grievant’s allegation that the si
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etween the grievant and his supervi
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her car on state property and she p
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The Employer had just cause to remo
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The employer had just cause to remo
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a period of about 10-15 minutes whe
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commodities was completely lacking
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answer questions, even after the De
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offenders. The incident was recorde
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judgment and his less than credible
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employees and the Union are aware t
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once the Youth was on the ground. C
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enroll in an EAP program within fiv
Page 91 and 92:
The parties did not intend that pre
Page 93 and 94:
progressive and commensurate discip
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Bureau of Employment Services, had
Page 97 and 98:
jurisdiction to resolve differences
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language toward a number of inmates
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a motor vehicle with an inoperative
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The grievant was removed for allege
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her work. The arbitrator stated tha
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meeting. The evidence also suggeste
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egarding IME’s within ODNR. The a
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individual under the supervision of
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arbitrator noted that if the behavi
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particularly in light of layoffs, b
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“extraordinarily patient with the
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and he had remained in contact with
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credible. Evidence presented indica
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oad, commonsensical guidelines abou
Page 125 and 126: aware of the grievant’s poor work
Page 127 and 128: procedural error. He found that whe
Page 129 and 130: youth at his facility. The evidence
Page 131 and 132: COs were aiding in investigations a
Page 133 and 134: The grievant was involved in a resp
Page 135 and 136: with sleep apnea and begun treatmen
Page 137 and 138: that he would have accrued during t
Page 139 and 140: years of state service. The arbitra
Page 141 and 142: workers who were aware of the condu
Page 143 and 144: criminal Assault and Falsification.
Page 145 and 146: held that removal was unreasonable,
Page 147 and 148: was knowledgeable of the corrective
Page 149 and 150: 24.04 - Pre-Discipline supervisor.
Page 151 and 152: equire support before one can estab
Page 153 and 154: is considered when fashioning a rem
Page 155 and 156: The grievant was an investigator wi
Page 157 and 158: egarding the conduct of a superviso
Page 159 and 160: The grievant was a Corrections Offi
Page 161 and 162: considered the grievant’s guilty
Page 163 and 164: 24.05. The Arbitrator agreed with t
Page 165 and 166: The grievant was reinstated to her
Page 167 and 168: consider that the co-worker may hav
Page 169 and 170: grievant’s removal was upheld, an
Page 171 and 172: once the Youth was on the ground. C
Page 173 and 174: undermines the purpose of the EAP p
Page 175: exercised its discretion in an arbi
Page 179 and 180: irrelevant for the purpose of calcu
Page 181 and 182: grievance was held arbitrable, (the
Page 183 and 184: prohibited from using the grievance
Page 185 and 186: employee in her right to bring a gr
Page 187 and 188: 26, 1994. The language of Contract
Page 189 and 190: y the grievant, would be compensabl
Page 191 and 192: committed other acts of neglect of
Page 193 and 194: filed a grievance arguing that assi
Page 195 and 196: guarantee that a document has suffi
Page 197 and 198: 25.08 because the union made excess
Page 199 and 200: 26.03 Work on Holidays No dispute e
Page 201 and 202: ARTICLE 28 - VACATIONS 28.01 - Rate
Page 203 and 204: contains various interventions and
Page 205 and 206: comported entirely with her initial
Page 207 and 208: ARTICLE 32 - TRAVEL 32.02 - Persona
Page 209 and 210: ARTICLE 36 - WAGES 36.02 - General
Page 211 and 212: 37.04 - In-Service Training Under 3
Page 213 and 214: arbitrator found the grievance arbi
Page 215 and 216: 43.03 - Mid-Term Contractual Change
Page 217 and 218: permanent part-time employees earn
Page 219 and 220: she was evaluated below average in
Page 221 and 222: “similar or related series” as
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