by Contract Number (PDF) - OCSEA

contains various interventions and four separate, but
similarly related infractions that resulted in discipline. The
Grievant maintained that over-the-counter medication she
took for severe leg cramps caused her to oversleep. The
Grievant was certified for certain medical conditions
recognized under the FMLA; however, none of the
Grievant’s certified FMLA medical conditions affected her
ability to call off properly.
The facts failed to support a finding that “circumstances”
precluded proper notification. The Arbitrator held that
BWC exercised discretion under Art. 29.03 and the Work
Rules when it determined removal should not occur and
instead imposed the suspension. Given the choice of
removal versus suspension, BWC acted properly. “Just
cause” existed and no standards were violated in
disciplining the Grievant. The record is undisputed that the
Grievant received increasing levels of discipline, including
economic penalties, to impress upon her the significance of
her non-compliance with the attendance procedures. The
absence of attendance infractions since her last discipline
indicates that the Grievant can correct her behavior. 986
29.04 – Sick Leave Policy
In a dispute governed by just cause principles there is a
rudimentary issue which overrides everything else. It is:
Was the aggrieved employee guilty of the misconduct
justifying discipline? Actually, the question contains two
parts; arbitral examination must start with whether or not the
employee committed the misconduct. The examination
should be circumscribed by the employer’s allegation(s)
against the employee. An individual cannot be legitimately
punished for something for which he/she was not charged.
The employer’s charges seek arbitral approval of the
grievant’s removal on the general sweeping grounds that the
grievant was a bad employee. The arbitrator declared
several of the State’s contentions irrelevant because they did
not impact on the charge of not following the proper sickleave
notification requirements: 310
The Union’s argument was that no employee, including the
grievant, was ever required to satisfy sick-leave notification
requirements. This argument went unrebutted by the State
and is a complete defense. New and unprecedented rules
must be conveyed before they can be enforced. The Labor
Relations Officer did not properly inform the grievant.
Unable to reach the grievant since the grievant was too ill,
the Officer told the Union Steward of the new procedure.
The Steward testified that he was not informed of the new
call-off requirement. Rather he was just told of the proper
leave-request forms that the grievant had to fill out. There
was no effective communication; as a result, the grievant
could not properly be held responsible for his violation. 310
The Agreement specifically and clearly provided for
specific notification of 16 hour and 0 hour sick leave
balances followed by meetings with the employee to learn
of extenuating circumstances, and to suggest enrollment in
Employee Assistance Program where appropriate. The
employer argued that this procedure would be implemented
after 11/30/90 based on the first sentence of Section 29.04,
“Sick leave usage will
be measured from December 1 through November 30 of
each year.” This argument is flawed. The sick leave policy
spelled out in 29.04 states the following essentials:
1. The policy of the State is to grant sick leave when
requested.
2. Corrective action is to be taken for unauthorized use of
sick leave and/or abuse of sick leave.
3. Corrective action is to be applied:
a. Progressively
b. Consistently
4. Policy requires equitable treatment which is not arbitrary
or capricious. 318
The grievant injured his back in car accident and was off
work for six months while receiving disability benefits. His
doctor released him to work if no lifting was allowed.
Because the position required lifting, he either left or was
asked to leave work. He failed to call in for three
consecutive days and was removed for job abandonment.
The union requested arbitration more than 30 days after the
date on the Step 3 response. No evidence was offered on the
interpretation of 25.02, and as to when the union received
the Step 3 response. The employer failed to overcome the
presumption that a grievance is arbitrable. The arbitrator
found just cause because: the grievant has served a 5 day
suspension for failing to follow call-in procedure while on
disability, his doctor’s statement that he should avoid lifting
was ambiguous, and he failed to respond to the employer’s
attempts to contact him. Filing for Workers’ Compensation
was not found to substitute for contact with the employer.
373
The grievant had been on a disability separation and had
been refused when he requested reinstatement. The
arbitrator found the grievance arbitrable because section
43.02 incorporated Ohio Administrative Code section
123:1-33.03 as it conferred a benefit upon state employees
not found within the contract. The grievant thus had three
years from his separation to request reinstatement, which he
did. The grievance was also found to be timely filed because
there was no clear point at which the employer finally
denied the grievant’s request for reinstatement and the union
was not notified of the events by the employer.
Additionally, the employer was estopped from asserting
timeliness arguments because the employer was found to
have delayed processing the grievant’s request for
reinstatement. The physician who performed a state-ordered
examination released the grievant to work, thus the
employer improperly refused the grievant’s reinstatement
request. The grievant was reinstated with back pay less
other income for the period, holiday pay, leave balances
credited with amounts he had when separated, restoration of
seniority and service credits, medical expenses which would
have been covered by state insurance, PERS contributions,
and he was to receive orientation and training upon
reinstatement. 375