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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