by Contract Number (PDF) - OCSEA

37.04 – In-Service 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
37.08 (under Article 37.08 of 1992-94 contract) –
Accreditation, Licensure or Certification Requirements
The Employer partially justified the abolishment of the
Treatment Plant Operations Coordinator by showing that
the grievant’s position description did not require
appropriate licensure for such operations, and the Employer
showed that there was little need for a position where the
alleged lead worker does not have the appropriate license to
lead his subordinate. 483 (1992-94 contract)
The Arbitrator rejected the Union’s allegation that the
Employer did not inform the grievant of opportunities to
become licensed. 486 (1992-94 contract)
37.08 – Tuition Reimbursement Programs
Under Article 37.08 of the Agreement the employer must
move an employee to another position if that employee fails
to meet the licensing or certification requirements of a
position. However, this is only required if the license or
certification requirements of a position change while the
employee is serving in that position. 550 (1994-97
contract)
ARTICLE 38 – TECHNICAL CHANGE
The Employer’s decision to employ three maintenance
repair workers and not use the full complement of boiler
operators and stationary engineers was because the new
equipment did not require boiler operators or stationary
engineers to work on the new gas systems. That decision
does not violate Article 38. 459 (1992-94 contract)
ARTICLE 39 – SUB-CONTRACTING
The employer replaced the abolished position’s duties with
the services of an outside private institution. If the
appointing authority decides to subcontract the work it
becomes almost impossible to show that a lack of work
existed for this position. If the position is transferred, either
internally or externally, it cannot be said to be permanently
deleted. 340**
Given the commitment of the State to utilize bargaining unit
employees to perform work they were performing when the
Contract came into effect, the second sentence of Article 39
places upon the State the burden of demonstrating to the
Arbitrator that the contract with Miller Pipeline Company to
do loop repair work met the contractual criteria of “greater
efficiency, economy, programmatic benefits and other
related factors.” The State was unable to satisfy the
economy or efficiency standards established by the
Contract. 489** (1992-94 contract)
The grievant grieved the State's contracting out project
inspection work on four District 11 construction projects to
consultant inspectors. At an initial stage, the Union and the
State disagreed over which party bore the burden of going
forward and the burden of proof in an arbitration which
required an interpretation of Article 39. The Arbitrator
discounted the State's contention that the first sentence of
Article 39 was meaningless for three reasons. First, the
rules of contract interpretation require that every one of the
drafters, words be given either its reasonable meaning or,
where the drafters have specified, its special meaning.
Thus, no word can be ignored or treated as inconsequential.
Second, the rules of contract interpretation also require that
words be given a reasonable meaning in light of the whole
Contract. Therefore, if the Arbitrator decided that the first
sentence had no meaning, the rest of the Article would be
pointless. Third, to accept the State's position would be, in
effect, to hold that the State acted in bad faith during the
course of the 1989 contract negotiations. Likewise, the
Arbitrator determined that the Union's position was less than
accurate. The Arbitrator held that the word "intends" was
less than a "commitment". Instead, she held that the word
meant that, at the time the Contract was entered into, the
State planned to use bargaining unit employees to do the
work they were currently performing. Thus, despite the
State's good faith intention to use bargaining unit
employees, it still reserved the right to contract out work.
The Arbitrator concluded that the second sentence of the
first paragraph gave the State the right to contract out work
normally performed by bargaining unit employees when the
State had a good faith belief that contracting out was
necessary or desirable because the end result would be
greater efficiency, greater economy, greater programmatic
benefits OR greater related factors. The burden of proof
was allocated as follows: first, the Union bore the burden of
proving that the subcontracted work was work that
bargaining unit employees "normally perform" by a
preponderance of evidence. Then, the burden shifted to the