by Contract Number (PDF) - OCSEA

grievant’s back pay. The grievant was first
discharged on 12/15/89. At the conclusion of the
initial arbitration hearing on 4/17/90, the
arbitrator put the employer on notice that the
grievant would be reinstated. The employer
requested a delay to effectuate a face saving
settlement. When such a settlement was not
forthcoming the arbitrator awarded the grievant
to be reinstated in a written opinion on 4/30/90.
The employer did not reinstate the grievant until
5/20/90 and the grievant did not receive her back
pay until 6/1/90. The arbitrator first found that
she did have the authority to award interest on a
back pay award. The arbitration decided that the
interest award was not a type of punitive
damages as argued by the employer, but only a
part of a make whole remedy. As such, the
arbitrator was entitled to decide the issue of
interest payments. The arbitrator found that the
employer’s delay did not rise to the level of
egregious conduct which would allow an award
of prejudgment interest. The employer’s delay
from 4/30/90 to 6/1/90 (postjudgment) does
warrant an award of interest. A postjudgment
interest award is clearly part of a make whole
remedy. The employer should not benefit from
its bureaucratic inefficiency. The arbitrator
decided to award an interest rate of the adjusted
prime rate in effect on 4/30/90 compounded
daily 252(B)
Where “just cause” was not present because the
grievant was summarily dismissed without any
consideration of the grievant’s many years of
high quality service or other mitigating
circumstances, the grievance was nevertheless
denied. By removing arbitral discretion to
modify penalties in a case involving patient
abuse, the parties either predefined just cause or
divorced such misconduct from the protections
of just cause. In either case, the removal cannot
be modified once abuse has been found. Section
24.01 prohibits an arbitrator from modifying the
discharge penalty when patient abuse is the
cause. Section 25.03 requires an arbitrator to
apply the negotiated provisions of the agreement
as they are written and intended to be applied,
without additions, subtractions, amendments, or
alterations. It is a mandate the Arbitrator must
obey; one which allows no room for individual
concepts of fairness or justice. 253
The federal government created, established
hiring criteria, and funded job training positions
within the Ohio Bureau of Employment Services
for Disabled Veterans’ Outreach Specialists
(DVOPS), and Local Veterans’ Employment
Representatives (LVERS). The OBES and
Department of Labor negotiated changes in the
locations of these employees which resulted in
layoffs which were not done pursuant to Article
18. Title 38 of the United States Code was found
to conflict with contract Article 18. There is no
federal statuette analogous to Ohio Revised code
section 4117 which allows conflicting contract
sections to supersede the law, thus federal law
was found to supersede the contract. As the
arbitrator’s authority extends only to the contract
and state law incorporated into it, the DVOPS’
and LVERS’ claim was held not arbitrable.
Other resulting layoffs were found to be
controlled by the contract and Ohio Revised
Code sections incorporated into the contract (see,
Broadview layoff arbitration #340). The
grievance was sustained in part. The non
federally created positions had not been properly
abolished and the affected employees were
awarded lost wages for the period of their
improper abolishments. 390
The grievant was a Therapeutic Program Worker
who was removed for abusing a patient by
restraining him in a manner not provided for in
the client’s restraint program. The client was
acting out while eating and the grievant either
choked or placed the client in a bear hug. The
arbitrator found that the employer proved that the
grievant abused the client. The grievant was
shown to have engaged in acts inconsistent with
clients’ human rights by restraining the client in
a way not permitted by the client’s program or
the agency’s policies. The testimony of the
employer’s witnesses was found to be more
credible than that of the grievant, and there was
no evidence of coercion by the employer or
collusion among the witnesses. The arbitrator
recognized that if abuse was proven, then no
authority exists to reduce the penalty of removal,
thus the grievance was denied. 409
The grievant was hired as a Tax Commissioner
Agent and had received a written reprimand for
poor performance while still in his probationary
period. He was assigned a new supervisor who
developed a plan to improve his performance,
however the grievant continued to receive
discipline for poor performance and absenteeism,
including a ten day suspension which was
reduced pursuant to a last chance agreement. It
was discovered after the last chance agreement
had been made, that prior to the signing of the
last chance agreement, the grievant had