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assigned pay range, but could never result in a decrease in
the assigned pay range. A reduction in an existing pay
range does not take place when the employer overrides a
point factor analysis with a market wage study and retains
the existing assigned pay range. The parties never
negotiated a specific exception to the general understanding
previously articulated. In fact, the language is Article 36.05
contemplates the adjustments made by the employer. “Just
because the employer has the right to apply the previously
articulated procedure does not mean that is had done so
properly in any particular instance.” 869 (1994-97
contract)
36.07 – Longevity Pay
The grievant retired from the State Highway Patrol and was
hired by the Department of Health four days later. His new
employer determined that the Ohio Revised Code section
124.181 did not provide for longevity pay supplements
based on prior state service for rehired retirees. The
arbitrator found the grievance arbitrable despite the
employer’s argument that because of the grievant’s retiree
status that longevity was a retirement benefit, and under
Ohio Revised Code section 4117.10(A) longevity for a
retired employee was not a bargainable subject. Section
124.181 was found to be applicable and section 36.07 of the
contract confers longevity pay based solely on length of
service. That the grievant experienced a change in
classification was found to be irrelevant for the purpose of
calculating longevity and the grievance was sustaine. 389
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 grievant was injured at work and qualified for workers’
compensation. His disability separation date went back to
his injury date and he was notified that he had three years
from that date to request reinstatement. Three years to the
day following his disability separation, the grievant notified
his employer that he wished to return to work. He faxed a
note from his physician to the administrator of personnel
stating that he could return to work with no restrictions.
Ten days following grievant’s notification, the administrator
notified the grievant that his request must be in writing. The
employer removed the grievant from his position on the
grounds that the request for reinstatement was not timely.
The arbitrator found that the employer’s request ten days
beyond the deadline constituted a “waiver by implication”
of the employer’s right to require a written request under
OAC 123:1-33-04. “Since the facility impliedly represented
it would not stand on its right to a timely request for
reinstatement, and since that representation induced action
on behalf of the grievant, the facility is estopped from now
asserting its right to a timely written request for
reinstatement.” The arbitrator concluded that the employer
failed to comply with OAC 123:1-33-04. The arbitrator
determined that the issue in this matter was a grievance
under Article 25.01(A) between the Union and the
employer. Since it had not been settled by the grievance
process it was arbitrable under Article 25.02 and because
under ORC 4117.10(A) if an agreement allows for a binding
and final arbitration of grievances, the arbitrator did not
have the authority to accept the decision of the Board of
Review which ruled in favor of the employer. 859
ARTICLE 37 – TRAINING/CONTINUING
EDUCATION/TUITION
37.03 – Orientation Training
Under 37.03 it is mandated that the employer pay overtime
or reimburse travel expenses. The word “required” in
Section 37.03 was defined by the arbitrator as “required by
the employer.” If the employer requires the employee to
attend then the employer is required to pay. The employer’s
choice to require or not to require attendance to a meeting
is entirely within the Article 5 management rights. The
Union argued that the employer’s classification of the
training as voluntary (37.04) as opposed to required (37.03)
is unreasonable. The arbitrator denied this claim. The
employer did not act in bad faith, the action was not
capricious or discriminatory, and the decision was in accord
with the Agreement. The employer did treat training
differently in the past but that was because it was a pilot
program. To differentiate after a trial period is not
capricious. See Denver Publishing and Denver
Typographical Union 52 LA 553. Since the employees were
not eligible for pay beyond their regular hours under 37.04
they are not eligible for overtime under Section 13.01 of the
Agreement. 345