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grievance was held arbitrable, (the right to grieve
arose under the 1989 agreement upon
notification of non-selection). The employer was
ordered to select from applicants grouped
pursuant to the 1989 agreement. 423
The Union contended that the employer waived
its rights to argue arbitrability by accepting and
processing a grievance that was untimely filed.
However, the Arbitrator concluded that the
Union's waiver argument was not valid because
the Department of Rehabilitation and Corrections
clearly raised its procedural objection at the third
step meeting. Thereafter, the Department
discussed the case on its merits and that does not
constitute a waiver. 582 (1994-97 contract)
The Union contended that the employer waived
its rights to argue arbitrability by accepting and
processing the grievance. The Arbitrator held
that since the contract unambiguously states the
time limits for filing discharge grievances, the
grievant was properly removed. 583 (1994-97
contract)
The Arbitrator dismissed the Employer's claim
that the grievant lacked standing, finding that
Section 25.01 of the Agreement provides that a
grievance is simply a dispute between the
Employer and the Union or any employee
regarding the application, meaning, or
interpretation of the Agreement. 632 (1997-2000
contract)
Article 25.01A, was defined as “any difference,
complaint or dispute between the Employer and
the Union or any employee regarding the
application, meaning or interpretation” of the
CBA. The Arbitrator found that the CBA was
not applied in this matter, and he noted that in
the language in Article 25.02, Grievance Steps,
the words “occurrence” and “events” meant that
something must have happened to trigger the
grievance. The Arbitrator further found that a
contractually mandated event had not transpired
in this case because the grievant was not denied
his benefits. He concluded that an easy solution
to the controversy was to ask the Factfinder. He
stated that “when an employee is denied benefits
due to the interpretation of the State on the
manner in which balances are to be computed the
controversy will be ripe for a grievance and
possible arbitration.” 709
The arbitrator found that the grievance was not
filed properly – it was not filed on the proper
form nor filed within 14 days of notification
pursuant to the Collective Bargaining
Agreement. The arbitrator stated that if the
grievance had been properly filed, it would have
been denied on its merits. The grievant was
charged with using derogatory and obscene
language towards a security guard. Two
witnesses, both of who were Ohio State Patrol
Troopers, corroborated the guard’s testimony.
Though the incident did not occur when the
grievant was on duty, it did occur in the public
area of the State building where the grievant’s
office was located and where State employees, as
well as the public were present. The employer
did not consider the grievant’s 22 years of
service and the arbitrator noted that there was no
obligation to do so because the grievant had
signed a Last Chance Agreement from a previous
disciplinary action which had been negotiated
and agreed to by both parties. 805
The grievant was given a 10-day suspension for
various alleged violations including Neglect of
Duty, Insubordination, Exercising Poor
Judgment; Failure of Good Behavior and
Working Excess Hours Without Authorization.
The Union argued that the same person
conducted the third step proceeding, the predisciplinary
meeting, another third step meeting
and also prepared the notice of the predisciplinary
meeting notice. In essence, the
grievant’s “Accuser, Judge and Employer
Representative.” The arbitrator determined that
there was no conflict and that the contract does
not require that different individuals preside over
the various steps in the process. He noted that
the pre-disciplinary meeting was not an
adjudicatory hearing, stating that it is described
in Article 24.04 as a meeting. The arbitrator
found that five examination reports were not
submitted by the grievant. The supervisor was
“extraordinarily patient with the grievant” and
gave him several reminders to submit the
examination reports. The grievant clearly
understood he was to submit the reports. The
grievant’s failure to submit the reports was a
failure to perform a fundamental part of his job.
The Employer failed to make its case with
regards to the grievant’s time sheets. The
employer did not show just cause to discipline
the grievant for working excess hours without
authorization. Though the time sheet was not
clear, it was obvious that the grievant was not
claiming hours beyond his scheduled hours. The
arbitrator determined that there was no just cause
for Working in Excess Poor Judgment, Failure of