by Contract Number (PDF) - OCSEA

More documents

Recommendations

Info

State recognized this as a statewide issue and reacted accordingly by admitting that the Department of Health could not resolve this issue at the Department level. 484 (1992-94 contract) The Arbitrator rejected the State’s argument that awarding back pay for missed overtime opportunities violates the Contract by going outside the authority of the arbitrator. 491 (1992-94 contract) Under Contract Article 25.03, the Arbitrator is given authority to decide questions of authority and to determine the merits of a grievance. In the case at hand, the Arbitrator held that a dispute whereby a grievant was removed following a criminal conviction for patient abuse was arbitrable and that the case could be decided on its merits. 560 (1994- 97 contract) The Arbitrator concluded that the State had agreed to combine grievance numbers 251 and 302. Because the grievances involved many of the same facts, it was logical to combine them. 628 (1997-2000 contract) The grievant was removed from MANCI as a CO and transferred to OSP. A settlement agreement was entered into by the parties on December 4, 2001 granting the transfer to OSP but also allowing for the grievant to carry his institutional seniority with him to OSP under paragraph 5 of the settlement agreement. The OCSEA then intervened declaring the settlement agreement violated Art. §16.01(B)- Institutional Seniority of the CBA. Subsequently, OCSEA with OCB’s consent amended the settlement agreement to remove paragraph 5 (the transferring of institutional seniority). The arbitrator found that the failure to transfer the institutional seniority as proscribed in the settlement agreement did not violate the rights of the grievant since settlement agreements can only work within the confines of the CBA, in which this particular agreement did not. No other provisions in the CBA allowed such a settlement agreement by the parties to work outside of the provisions provided by the CBA. The arbitrator further found that the settlement agreement did not need to be executed by the grievant unless a waiver of individual right’s was at issue, which was not at issue in this case. Therefore, the amending of the settlement agreement without the grievant consenting was valid. 818 The Agency issued an announcement that an employee in an Administrative Assistant 3 classified exempt position had been selected as the EEO Officer for the Agency. A hearing was waived and the parties presented written briefs with largely undisputed facts. Then the arbitrator had a telephone conference with representatives from each party combined. To uphold the fairness of the procedure, the Grievant submitted a sworn affidavit waiving his right to have the grievance heard in person. Classification language was the first issue. The Agency’s announcement that an exempt employee would serve as EEO Officer does not constitute an announcement that the employee is occupying a class title belonging to the bargaining unit. The duties assigned by the Agency are similar to the EEO Manager class title, one of the four exempt class titles that are within the DAS classification Series 6913 entitled “EEO Officer.” The second issue was a policy consideration: Who should be the EEO Officer—a bargaining unit member or an exempt employee? The questions of who should perform the duties and to whom they should be assigned were beyond the scope of an arbitrator’s duties. The contract limits the arbitrator to “disputes involving the interpretation, application or alleged violation of a provision of the Agreement.” The contract does not give the arbitrator the authority to consider and answer questions that appeal only to the arbitrator’s personal sense of what is fair or just. The third issue was bargaining unit erosion. The part-time duties of the EEO Officer at the Agency had always been performed by management personnel. Therefore, the assignment of duties to an exempt employee as EEO Officer was the same action that the Agency had taken over the past several years. Since the amount of bargaining unit work performed by supervisors did not increase, the arbitrator found no basis for claim that the Agency took action for the purpose of eroding bargaining unit work. The grievance was denied. 963 On April 24, 2006 the Agency posted a position for an Environmental Specialist 1 (ES1). Later the Agency withdrew that posting and applicants were sent letters on or about May 26, 2006 that the position would not be filled. Then the agency posted for an Administrative Assistant 2, with a job description which was essentially the same as that of the ES1. That position was filled on June 26, 2006. On July 6, 2006 the Union
filed a grievance arguing that assigning an exempt employee to that position violated Articles 1.05 and 17.05 of the CBA. The Agency raised a timeliness objection. The Union contended that the triggering event was the June 26 filling of the AA2 position with an exempt employee and not the announced withdrawal of the ES1 position. The Arbitrator held that the Agency effectively waived its right to raise the issue of procedural arbitrability by waiting until the arbitration hearing to assert that issue. Each Party has an obligation to scrutinize the substantive and procedural aspects of a grievance while processing it through the negotiated grievance procedure and to raise relevant procedural and/or substantive objections before going to arbitration. When procedural objections are not raised earlier in the grievance process, there is a risk of losing relevant information or losing opportunities to negotiate settlements. The Arbitrator was persuaded that Article 25.03 does not impose a duty on the Union to establish a prima facie case before arbitrating the merits of a dispute. The Agency’s argument rests on their own interpretation of that Article. However the Arbitrator held that reasonable minds may differ on their interpretations; consequently, reinforcing the need for a review of the issues in an arbitration. The Agency arguments also rest on several assertions that have not been established as facts in the dispute (e.g. “bargaining unit work does not exist in the ESS.”) These assertions are better left to an arbitration. The Arbitrator held that because of the special nature of collective bargaining relationships, there is a heavy presumption in favor of arbitration when disputes arise. 989 25.05 – Time Limits The relevant guiding intent of the parties is set up in the preamble, or purpose clause of the contract as “…the promotion of harmonious relations between the employer and the union; the establishment of an equitable and peaceful procedure for the resolution of differences.” To interpret section 25.05 as the union requests (if the employer is untimely, the grievance remains arbitrable regardless of when the union appeals it to arbitration and only ceases to be arbitrable if the union withdraws the grievance) would run counter to the purpose by indefinitely postponing the ultimate resolution of grievances and destroying the balance contractual scheme for meeting the expressly stated goal of the grievance procedure: “25.01”. 158 Section 25.05 is rather a general provision which further explains and supplements the specific time limits imposed on both parties in section 25.02. 158 The first paragraph of 25.05 is not limited in its terms only to those grievances which have been favored with a timely written response from the employer. Rather, that paragraph serves to reconfirm the specific time limits imposed upon the union at steps 2, 3, and 4 of the grievance procedure. 158 The second paragraph of 25.05 establishes that neither the time limits for the employer to respond nor the time limits for the union to perfect its appeal can be extended, absent the mutual agreement of the parties. 158 The contract (25.05) provides that a grievance not appealed within the designated time limits is treated as withdrawn without any affirmative obligation of the union. It strains credulity to concluded that the parties intended that the union be required to affirmatively appeal a grievance in the event of a timely response while it is at the same time required to affirmatively withdraw a grievance when no answer or a late answer is forthcoming. 158 The “forfeiture” complained of by the union was voluntarily agreed to when the contract was executed and represents a logical quid pro quo for the twenty one day requirement of the office of collective bargaining to respond or lose jurisdiction. 158 The contract says that grievances not appealed within the designated time limits will be treated as withdrawn grievances (25.05). It would be injustice to both parties for the arbitrator to allow the language of the contract to be outweighed on the grounds of a clerical error by a temporary employee. 164 Adherence to contractual time lines is critical and to move the grievance forward where time limits have not been met requires circumstances and considerations which overwhelm contract language. Failure of a temporary employee to carry out the task in an appropriate manner is simply not the basis to override contract language. 164
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 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
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: committed other acts of neglect of
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
show all

by Contract Number (PDF) - OCSEA

Create successful ePaper yourself

Delete template?

Save as template?