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his initial employment. The personnel officer and food manager interviewed the grievant and testified that the 180-day probationary period was discussed. 732 The Grievant had accepted an inter-agency transfer, demotion, and headquarter county change. The Department sent her a letter that erroneously stated that she would “serve a probationary period of 60 days in this position.” A month later the Department issued a “Corrected Letter” informing her that she would serve a probationary period of 120 days, provided by Article 6.01 D. The Grievant’s Final Probationary Evaluation rated her performance as unsatisfactory and she was probationarily removed. The Arbitrator held that the Grievant was in an initial probationary period and not a trial period when she was removed. The Acknowledgment she signed explicitly referenced Article 6.01 D, used the term “initial probationary period”, and placed her on notice that she could be removed during that period without recourse. The Grievant neither consulted the Collective Bargaining Agreement or Union before signing the Acknowledgment; nor did she inquire about the change or file a grievance when she got the corrected letter. Trial periods differ from probationary periods in that they are one-half the regular probationary period and employees in trial periods are not prohibited from using the grievance procedure to protest discipline and discharge actions. The Arbitrator held that regardless of the mistake made by the Department (but later rectified) she had no authority to review the Department’s removal decision. Therefore, the matter of the Grievant’s removal was not arbitrable. 936 While the Grievant claimed to have the necessary background in research methods in her summary of her qualifications, the information contained in her application and resume did not support her claim. She failed to show any experience with operational, mathematical, analytical, or statistical research methods. The Arbitrator rejected the claim that when the state denied her an interview for the Planner 3 position and awarded it to someone else, it engaged in sex and/or age discrimination in violation of Article 2. A large portion of the employees in the Emergency Management Agency are women and three of the top five leadership positions are held by women .The Arbitrator held that the Grievant failed to show that she satisfied the minimum qualifications for the Planner 3 position when she applied. The grievance was denied. 939 6.02 – Promotional/Lateral Transfers Probationary Period It is unclear on what basis the arbitrator found the grievance to be timely. The grievant waited almost six months to grieve the issue. The grievant was given advice by her steward not to grieve within her probationary period or she would be fired. The grievant relied on this advice and did not grieve until after the probationary period. Another basis on which the arbitrator could have ruled that the grievance was arbitrable was that the employer’s action can be categorized as a continuing violation. 360 ARTICLE 7 - OTHER THAN PERMANENT POSITIONS 7.01 – Temporary Positions The employer abolishing a position and having the same employee become a part-time employee doing the same work as she did previously on a full-time basis points toward the abolishment being improper. The original position was still intact, the grievant instead of working forty hours a week worked thirty nine. The work was not consolidated or redistributed. The abolishment was illegal. 340** The arbitrator determined that the grievance was arbitrable. Article 7.10 refers to a time limit for TWL positions – 120 days. That time limit must be interpreted. The arbitrator was not persuaded by the State’s interpretation of the Agreement. He determined 120 days for a TWL meant 120 days. The language in the Agreement is clear and unambiguous. To allow the State to keep individuals in positions outside the bargaining unit for more than 120 days would negate the 120-day limitation. 813 7.03 - Intermittent Positions Before the grievant could be laid off as a permanent full-time employee in her classification, intermittent employees in the same classification must be laid off first. 471 (1992-94 contract)
Management established a list of intermittent employees to assist in ice and snow removal. The Union asserted that this action violated Article 1.05 and Article 7.03 of the contract because this action was for the purpose of eroding the bargaining unit The Arbitrator determined that the purpose of the change was merely to improve ice and snow removal not to erode the bargaining unit. 596 (1994-97 contract) 7.06—Seasonal, Intermittent, Interim, Temporary Overtime The Union filed separate grievances from Guernsey, Fairfield, Licking, Knox, Perry, and Muskingum Counties that were consolidated into a single case. Implicit in the authority to schedule employees is the ability to alter the work schedule, subject to the limitations in Article 13.07 that the work schedule was not made solely to avoid the payment of overtime. The Arbitrator found that there was no evidence that the schedule change was motivated by a desire to avoid overtime; therefore, no violation of the contract occurred. Based upon the weather forecast known to the Employer on February 12, 2007 justifiable reasons existed to roll into 12 hour shifts. Prior notification under Article 13.02 was not required. No entitlement existed that the employees were guaranteed 16- hour shifts under a snow/ice declaration. The Employer’s conduct did not violate Section 13.07(2)’s Agency specific language. The snow storm was a short term operational need. To conclude that a snow storm is not a short term need but that rain over an extended period of time is, would be nonsensical. The record consisted of over 500 pages of exhibits and three days of hearing. That record failed to indicate that the Employer violated the parties’ agreement. 997 ARTICLE 9 – OHIO EMPLOYEE ASSISTANCE PROGRAM The arbitrator found that the Employee Assistance Program (EAP) referral is to be entirely at the employee’s discretion; the employer may not direct an employee into the program. Because of this the arbitrator would not order the reinstated grievant to enter the EAP. 305 The Agreement specifically and clearly provide for specific notification of 16 hour and 0 hour sick leave balances followed by meetings with the employee to learn of extenuating circumstances, and to suggest the Employee Assistance Program where appropriate. The employer argued that this procedure would be implemented after 11/30/90 based on the first sentence of Section 29.04, “Sick leave usage will be measured from December 1 through November 30 of each year.” This argument is flawed. The sick leave policy spelled out in 29.04 states the following essentials: 1. The policy of the State is to grant sick leave when requested. 2. Corrective action is to be taken for unauthorized use of sick leave and/or abuse of sick leave. 3. Corrective action is to be applied: a. Progressively b. Consistently Policy requires equitable treatment which is not arbitrary or capricious. 318** The employer is not obligated to persuade the employee to enroll in the Employee Assistance Program. 362 The grievant was a Corrections Officer who was enrolled in an EAP and taking psychotropic drugs. He got into an argument with an inmate who had used a racial slur and struck the inmate. The grievant was removed for abuse of an inmate and use of excessive force. The arbitrator found that the grievant struck the inmate with no justifying circumstances such as self defense, or preventing a crime. The employer, however, failed to prove that the grievant knowingly caused physical harm as required by Ohio Revised Code section 2903.33(B)(2), because the grievant was taking prescription drugs. The grievant’s removal was reduced to a thirty day suspension because the employer failed to consider the grievant’s medication. The grievant was not faulted for not notifying the employer that he was taking the psychotropic drugs because he had no knowledge of their possible side effects. Thus, the use of excessive force was proven, but excessive use of force is not abuse per se. 368 9.04 – Employee Participation (formerly Article 9(A) of 1989 contract and Article 9 of 1986 contract)
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
Page 7 and 8: 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: The grievant had a thirty-day time
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
Page 39 and 40: 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
Page 53 and 54: 18.04 (formerly Article 18.03 of 19
Page 55 and 56: establishes that the just cause sta
Page 57 and 58: suspension would be excessive and u
Page 59 and 60: 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
Page 65 and 66: grievant’s allegation that the si
Page 67 and 68: etween the grievant and his supervi
Page 69 and 70:
her car on state property and she p
Page 71 and 72:
The Employer had just cause to remo
Page 73 and 74:
The employer had just cause to remo
Page 75 and 76:
a period of about 10-15 minutes whe
Page 77 and 78:
commodities was completely lacking
Page 79 and 80:
answer questions, even after the De
Page 81 and 82:
offenders. The incident was recorde
Page 83 and 84:
judgment and his less than credible
Page 85 and 86:
employees and the Union are aware t
Page 87 and 88:
once the Youth was on the ground. C
Page 89 and 90:
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
Page 95 and 96:
Bureau of Employment Services, had
Page 97 and 98:
jurisdiction to resolve differences
Page 99 and 100:
language toward a number of inmates
Page 101 and 102:
a motor vehicle with an inoperative
Page 103 and 104:
The grievant was removed for allege
Page 105 and 106:
her work. The arbitrator stated tha
Page 107 and 108:
meeting. The evidence also suggeste
Page 109 and 110:
egarding IME’s within ODNR. The a
Page 111 and 112:
individual under the supervision of
Page 113 and 114:
arbitrator noted that if the behavi
Page 115 and 116:
particularly in light of layoffs, b
Page 117 and 118:
“extraordinarily patient with the
Page 119 and 120:
and he had remained in contact with
Page 121 and 122:
credible. Evidence presented indica
Page 123 and 124:
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 and 176:
exercised its discretion in an arbi
Page 177 and 178:
the possible violation was not brou
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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