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leave is a limited one, available only for defined, limited
purposes. Having achieved the limitations during the
negotiation of the contract, management is entitled to
enforce them. One of the means of enforcement set forth in
29.02 is the requirement that person-to-person report-offs
occur between the employee and the immediate supervisor
or the supervisor’s designee. 178
There was a discrepancy between ODOT’s call-in rule and
29.02 to the extent that ODOT’s rule did not provide for an
exception to the personal call-in requirement in the case
where the employee is unable to personally call in. Strict
application of ODOT’s rule would therefore constitute an
overreaching of management rights. However, the arbitrator
denied that the defect in the rule was a ground for sustaining
a grievance, when the employee had been able to call-in
personally. 178
It was unreasonable to apply the 90 minute call in
requirement of 29.02 to the grievant where the grievant
called in as soon as he became aware that he would not be
unable to get to work on time because his wife’s car had
broken down. The towing receipt shows that the grievant
was forced to call off because of extenuating and mitigating
circumstances. 191
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)
The Arbitrator found that the Employer did not violate
Section 11.11 because the Employer engaged in a good faith
effort to provide alternative comparable work and equal pay
to the two pregnant Grievants. On four of five scheduled
work days the employees would work “relief” in “noncontact”
posts. On the fifth day the Union requested that the
two employees be assigned an “extra” or “ghost” post or be
permitted to take the day off and use accrued leave for
coverage purposes. However, the Warden placed the Union
on notice that the institution could no longer have pregnant
employees assigned to posts as extras. Certain posts were
properly rejected based on the Grievants’ doctor
recommendations. The Union’s proposals would have
resulted in “ghost posts.” The Grievants would have
worked in positions at the expense of other established
posts. Also, unapproved “ghost posts” would violate the
spirit of the local Pick-A-Post agreement. Proposed uses of
accrued leave balances, personal leave, and sick leave
failed. Nothing in the record indicated the Grievants had
sufficient leave balances available to cover one day off per
week. In addition, if the Grievants were allowed to take
vacation time on dates previously selected, the Employer
would be violating a mutually agreed to number of vacation
days made available for bid. Other correction officers’
seniority rights would be violated if vacations were
preferentially granted to pregnant employees. Section 27.02
entitles an employee to four personal leave days each year;
however those four days could not possibly cover the entire
pregnancy period. Section 29.02 grants sick leave to
employees “unable to work because of sickness or injury.”
A pregnancy cannot be viewed as an “illness or injury.”
941
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
29.03 – Notification
Requirement that sick leave policies be fairly applied
throughout the state is violated when two employees are
absent on the same day (day preceding vacation in this case)
and only one is disciplined for failure to supply
documentation. 35
Under Contract Article 29.02, an employee is required to
notify his or her employer when unable to report for work.
In this case, the grievant failed to call in and was deemed
absent without leave in violation of her employer’s policies
and a Last Chance Agreement. 559 (1994-97 contract)
The failure of the Grievant to timely call off by 47 minutes
is not in dispute, nor is the past disciplinary record which