by Contract Number (PDF) - OCSEA

the FR clothing during these five
months. Evidence was submitted
showing that Todd Braden had a per
week expense for care and maintenance
of this clothing. The make whole
remedy was requested for this Grievant
only. 1018
11.02 – Personal Protective Clothing and
Equipment
The employer is not required to provide work
shoes or safety shoes for employees, nor
compensate them for the purchase of such items.
The employer did not require safety shoes, but
prohibited tennis shoes and sandals. The
department’s regulation only recommends safety
or heavy work shoes. No one has been
disciplined for the shoes they wore except when
they work tennis shoes or had been also guilty of
insubordination because they had refused to
change shoes after being ordered to do so. The
employer’s department’s policies about shoe
have been in place for several years. Failure to
grieve earlier constituted acquiescence in the
employer’s interpretation of the contract. Finally,
33.01 and 33.02 reference specific requirements
regarding the furnishing of uniforms and tools. If
the union wanted the employer to supply shoes,
it should have negotiated for the requirement.
For the arbitrator to impose such a requirement
would be to add to the contract in violation of
25.03 which prohibits the arbitrator form doing
so. 259
Throughout 2007 there was confusion
about what was required to be
purchased and what was optional for
fire-resistant (FR) clothing. The Traffic
Engineer, the Grievants’ supervisor,
relied on information from the ODOT
Central Office and required the
Grievants to wear the FR shirt and pants
beginning in October, 2007. The
supervisor rescinded the order in
February, 2008 when she received the
following email: “All FR Safety
Apparel which has already been
purchased can be distributed to
employees if they wish to wear it.
Since the apparel is only recommended,
it will be the employer’s responsibility
to wash and maintain the safety
apparel.” The supervisor instructed the
Grievants to wear the pants and suit if
they wished, but cleaning and
maintenance was their responsibility.
The contract between the parties states
that the arbitrator cannot impose an
obligation that is “not specifically
required by the expressed language of
this Agreement.” OSHA does not
require FR clothing as personal
protective equipment for the Grievants
in the text of Section 1910.335. The
Arbitrator held that the Employer was
not obligated under Article 11.02 to
provide FR shirts and pants to the
Grievants and, consequently, did not
have any obligation to clean and
maintain same. Because the traffic
engineer ordered the five Grievants to
wear the FR shirt and pants from
October, 2007 to February, 2008, the
Employer was contractually responsible
for the cost of cleaning and maintaining
the FR clothing during these five
months. Evidence was submitted
showing that Todd Braden had a per
week expense for care and maintenance
of this clothing. The make whole
remedy was requested for this Grievant
only. 1018
11.03 – Unsafe Conditions
Grievant did not follow the general principle –
“obey now, grieve later.” The section 11.03 right
to refuse unsafe orders applies only where there
are unsafe conditions abnormal to the work
place. While such conditions may have been
present, the grievant’s refusal to vacate her
supervisor’s office rose to a level of
insubordination that was not justified by the
unsafe working conditions. She could have
merely declined to work at her regular station.
123
When the grievant, a flagger who was in charge
of directing traffic during construction, left her
post during a storm it was deemed to be Neglect
of Duty and insubordination. The grievant’s
explanation of her leaving her post as a refusal to
work in a dangerous or unsafe work area
(Section 11.03) was not believed. The grievant
was trained in her responsibilities as a flagger,
she knew the storm was approaching and there
were several reasonable alternatives to her action
of abandoning her post. A responsibility
employee faced with similar circumstances
would have attempted a number of reasonable
alternatives rather than place the lives of co-