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of benefit sought by the Union. A reading of R.C. 5923.05 surfaces the Legislature’s intent to ensure that an employee on military leave not suffer a loss of pay; however, leave accruals are never specified in this statute. 889 The Grievant injured her back at work. She was off on leave and received payments from Workers’ Compensation. She was then placed in the Transitional Work Program. After 90 days, she was placed back on leave and Workers’ Compensation. The state implemented an involuntary disability separation and her employment with the state ended on January 1, 2006. Under Section 123:1-30-01 of OAC the grievant had reinstatement rights for two years. She was cleared to work by her doctor and was reinstated on December 27, 2006. At that time, she requested to have the state restore her personal and sick leave accruals from when she began work in the Transitional Work Program on June 13, 2005, through December 27, 2006. The Arbitrator held that the contract articles did not support the Grievants’s request to have the leave balances restored. The Grievant was subjected to an involuntary disability separation on January 1, 2006, so that on December 27, 2006, she was not an employee returning to work under the contract but was an individual who was re-hired pursuant to Section 123:1-30-01 of the OAC, which has no provision for the restoration of accrued personal or sick leave. The Arbitrator held that he must ignore the clarification letter relied upon by the state. The letter represents the Office of Collective Bargaining’s interpretation of the contract and its instructions to the agencies about how to handle the restoration of accrued leave. In addition, while Section 123:1-33-17(F) of the OAC provides for the accrual of sick leave while an employee is on occupational injury leave, there is no such requirement in Chapter 123:1-30 relating to separations. 1019 27.04 – Notification and Approval of Person Leave It was unreasonable for the employer to deny the grievant’s personal leave. While the grievant did not apply in advance, the circumstances under which grievant was absent would qualify as an emergency since they were unexpected and involved the personal safety of the grievant’s wife. The application was made as soon as possible. The denial violated Article 27. 191 The sentence “the leave shall not be unreasonably denied” in Article 27 applies only to personal leave requested less then 24 hours in advance. If the leave is requested more than 24 hours in advance, personal leave shall be granted. The sentence in question does not imply that management can deny personal leave requested more than 24 hours in advance. 228 (1997- 99 contract) It is a time honored maxim that a party will not be permitted to gain something in arbitration which it lost at the bargaining table. The agreement provides no supervisory discretion to deny personal leave requests submitted a day in advance, and the arbitrator cannot create an extracontractual management right. 228 The arbitrator’s ruling that the employer doesn’t have discretion to deny personal leave request submitted at least one day in advance, should not be interpreted as approving a wildcat strike through personal leave applications. Such strikes are illegal and contrary to the agreement. It is apparent, beyond debate, that the bargaining unit cannot accomplish something by indirection that it is prohibited from doing directly. When and if Article 27 is used to support such action, there is no doubt that the State and any member of its panels of arbitrators will deal with that problems appropriately. 228 Section 27.04 contains clear and unambiguous language, and thus, its meaning must be determined from the Agreement without resort to evidence external to it. 475 (1992-94 contract) The employer violated Section 27.04 of the agreement when it denied the grievant’s timely request for personal leave. 475 (1992-94 contract) The language in the first sentence of Section 27.04, “Personal leave shall be granted if an employee makes the request with one (1) day notice,” is mandatory. 475 (1992- 94 contract) The Arbitrator rejected the Employer’s argument that Section 13.02 gives Management the authority to deny personal leave under Section 27.04. Since Section 13.02 was so hotly contested, the parties would have been very careful to say exactly what they meant in drafting the language. There is no express language in the Contract stating that Section 13.02 would apply to 27.04. 475 (1992-94 contract) 27.04 – Notification and Approval of Person Leave The Ohio Veteran’s Home violated Article 27 by denying personal leave requests. It was directed to cease and desist from such denial when the requests were properly filed. The Veterans Home dealt with chronic shortages of direct care staff. Mandatory overtime and harsh disciplines caused burn-out and turnovers. Article 27 clearly states that personal leave shall be granted with proper notification. The arbitrator found that if the staffing levels fell below legal minimums, it was management’s responsibility to find a way to achieve its goal (increase staffing levels) without denying proper requests for personal leave. Because there was no proof of harm other than a postponement of a benefit for those individuals affected, a cease and desist was awarded. 930
ARTICLE 28 – VACATIONS 28.01 – Rate Of Accrual Articles 27 and 29 both contain language which provide for employees to accrue benefits while on Workers’ Compensation leave. Article 28, dealing with vacations, does not provide this. The failure of the Contract to provide similar entitlements for vacation time, as it does in Article 27 and 29, is evidence that no entitlement was intended. 546 (1992-94 contract) 28.01 – Rate Of Accrual A full time employee who was a member of the Ohio National Guard serving on duty one weekend per month and two weeks out of every year is entitled to one year prior service credit for each year of service for the purpose of computing the amount of his vacation leave pursuant to RC121.161, OAG 81-066. The Arbitrator found that the evidence presented and practice supported the Union’s position in this matter. State service credit is to be based on the initial date of enlistment in the National Guard. The Office of Collective Bargaining was to promptly notify all State agencies of the decision. The award was limited to the five grievants and applied to National Guard time only. 763 Prior to her employment with the Industrial Commission (IC) in 1986, the grievant was employed at FCPDO. She requested service credit for her tenure at FCPDO. The IC denied the request because the FCPDO did not make contributions to PERS for its employees. The arbitrator found that the FCPDO was established as a result of the Public Defender’s Act of 1976. The majority decision in Mallory v. Public Employees Retirement Bd., 82 St. 3d 235 (1998) noted that the FCPDO was created pursuant to the Public Defender Act and that its public duties were performed under the auspices of the sovereign rights of Franklin County. The arbitrator’s determination was based on the court’s analysis Mallory. The grievant, however, did not file a grievance in this matter until 2001; therefore, service credit awarded as of ten days prior to the grievance filing date, pursuant to the Contract. 784 The employer neither violated Section 31.01 of the Collective bargaining Agreement nor relevant sections of the Ohio Revised Code when it failed to allow the accrual of vacation and personal leave while the Grievant was on a leave of absence and on active duty in the military. Vacation leave accruals as specified in Section 28.01 required active pay status which the grievant did not possess. Similarly, personal leave accruals only arise when as employee is on a paid leave of absence, and Section 31.01(E) defines military leave as unpaid leave with a proviso. The Revised Code also fails to articulate the type of benefit sought by the Union. A reading of R.C. 5923.05 surfaces the Legislature’s intent to ensure that an employee on military leave not suffer a loss of pay; however, leave accruals are never specified in this statute. 889 Management of EPA violated the Collective Bargaining Agreement by failing to give the Grievant a pro-rated vacation dump. The State was directed to credit her with 36 hours of vacation leave. Article 28 is clear in that permanent part-time employees earn and are to be credited with paid vacation leave the same as permanent full-time employees but pro-rated for the hours worked. The Agency has complied with column one of the schedule; however, it has ignored the second column in the milestone years, thus denying these employees their entitlement to the full prorata amount earned in the milestone year. While it was true that neither the CBA nor the part-time policy mention “vacation dump”, this was the method used for years for other public employees in Ohio in the milestone years. A “vacation dump” is a lump sum credit of earned vacation that has not accrued on a biweekly basis by virtue of the fact that accrual rate increases lag increases in earned annual vacation leave by one year. The mere fact that there has been a practice of not making similar adjustments for most part-time State employees does not evince a binding past practice. A past practice is binding only when it rests on a mutual agreement. There was no such evidence here. 973 28.03 – Procedure The arbitrator held that the forty-eight hour rule is a more practical and reasonable means to implementing the “promptness requirement” in the fifth paragraph of Article 28.03 The portion of the grievance challenging the ninetyminute rule is moot because the agency unilaterally discontinued that rule. The agency’s imposition of the forty-eight hour rule does not violate the contract. 877 ARTICLE 29 – SICK LEAVE 29.02 – Sick Leave Accrual Prior to implementation of sick leave policy referred to in section 29.03, section 29.02 vests discretion in employer to require submission of physician’s statement within reasonable period of time to verify employee illness for purpose of sick leave approval, except where there is evidence of discrimination or arbitrary application. 22 Prior to implementation of sick leave policy referred to in section 29.03, if the employee’s attendance record justifies a request for medical verification, section 29.02 does not prohibit employer from requiring a physician verification even if the illness does not require a Doctor’s treatment. 22 Section 29.02 indicates the parties contemplated that exceptions could occur to call-in requirement. Grievant’s suffering from severe upper respiratory infection and bipolar disease with the associated depression and sleeping, give rise to such an exception. 63 Management has authority to monitor sick-leave usage. The fact that the right exists is clear; it is not open to reasonable debate. Article 29 establishes that the allowance of sick
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INDEX BY CONTRACT SECTION ARTICLE 1
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this case, one cannot conclude that
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Muskingum Counties that were consol
Page 7 and 8:
in Article 24.04 as a meeting. The
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Article 2.01 requires that neither
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The Arbitrator found that when the
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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
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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
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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
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establishes that the just cause sta
Page 57 and 58:
suspension would be excessive and u
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employee cannot be on “notice”
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grievant was a nine-year employee w
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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
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The parties did not intend that pre
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progressive and commensurate discip
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Bureau of Employment Services, had
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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
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aware of the grievant’s poor work
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procedural error. He found that whe
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youth at his facility. The evidence
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COs were aiding in investigations a
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The grievant was involved in a resp
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with sleep apnea and begun treatmen
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that he would have accrued during t
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years of state service. The arbitra
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workers who were aware of the condu
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criminal Assault and Falsification.
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held that removal was unreasonable,
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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: 26.03 Work on Holidays No dispute e
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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