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State to prove that its decision was rationally based on greater efficiency, greater economy, greater programmatic benefits OR greater related factors. Then, the burden again shifts to the Union to prove that the State's decision was erroneous, based in bad faith OR not in the public interest by clear and convincing evidence. 514A Management argued that the grievance was considerably untimely, since the cause of action had occurred fifteen years earlier, when a resident worker started working as a short order cook. The grievance was filed on the same day the cooks were ordered to report to the new location. The Arbitrator held that the grievance was timely. The Arbitrator found there was insufficient evidence that the reason for giving the Veterans Hall Kitchen cooking duties to the Ohio Veterans Home Resident Workers and changing the work area of the union cooks to Secrest Kitchen was to erode the bargaining unit. Members of the bargaining unit were not displaced. There were no layoffs. Members were not deprived of jobs that were normally available to them. It appears that the only change was the work assignment. There was no evidence of any deprivation of any economic benefit to membership. The Arbitrator held that the 1994 grievance settlement had not been violated. No bad faith was established. Further, the short order grilling was de minis in nature when compared to production quantity work performed by the union cooks. The subcontracting in these circumstances had little or no effect on the bargaining unit, and was permissible under Article 39.01. 1009 ARTICLE 43 – DURATION 43.01 - Duration of Agreement Requires an arbitrator to find the contract controlling if a section of the Ohio Revised Code conflicts with a contractual provision. 22 State statutes or regulations (in this case protection of patient confidentiality) do not provide state with a reasonable basis under 25.08 or 24.04 for refusing to provide information since section 43.01 of the contract determines that the contract supercedes any conflicting state law. 39 Section 43.01 gives precedence to the agreement over any statutes other than ORC 4117 where such statutes conflict with the agreement. Thus, the requirement in 25.08 that the state produce evidence requested by the union supercedes the Ohio Highway Patrol’s statutory privilege in ORC 149.43: 75 − The parties did not intend for the contract to supersede applicable federal laws and regulations. 116 The parties agreed in 43.01 that the Agreement takes precedence and supercedes conflicting state laws except ORC Chapter 4117 and the rules, regulations, and directives in that statute. That 4117 in section 10(A) provides that the public employer and employees are bound to state and local laws pertaining to wages, hours, and terms and conditions of employment for public employees only in situations where there is no agreement or when an agreement exists but it makes no specifications about a matter. If an agreement exists and it specifies a matter, the contract takes precedence. Terminating an employee after his probationary period is a term and condition of employment subject to final and binding arbitration for grievances. The contract is specific about this term and condition of employment. An employee cannot be terminated for any reason except just cause. In the case of applying civil service laws concerning employees who have failed a civil service exam, the employer has the burden of taking actions to follow civil service laws within the constraints of the contract. 175 Section 43.01 gives the Agreement precedence over conflicting laws. 297 The State cited Ohio Revised code section 124.34 in the grievant’s removal for abuse. Arbitrator Rivera quoted Arbitrator Pincus in the Dunning** opinion, “Reliance on this section (the Ohio Revised Code section defining abuse), moreover, conflicts with a recent Ohio Supreme Court decision which found that the Code cannot be used to supplement and indirectly usurp provisions negotiated by the parties.” The standard under the Agreement is just cause, not a lesser standard defined by the Ohio Revised Code. This violation was found to be de minimis. 308** Citation of the Ohio Revised Code section defining abuse is a technical violation and is insufficient for overturning the removal for allegedly abusing a youth. 326 The grievant was a Correction Officer who was enrolled in an EAP and taking psychotropic drugs. He got into an argument with an inmate who had used a racial slur and struck the inmate. The grievant was removed for abuse of an inmate and use of excessive force. The arbitrator found that the grievant struck the inmate with no justifying circumstances such as self defense, or preventing a crime. The employer, however, failed to prove that the grievant knowingly caused physical harm as required by Ohio Revised Code section 2903.33(B)(2), because the grievant was taking prescription drugs. The grievant’s removal was reduced to a thirty day suspension because the employer failed to consider the grievant’s medication. The grievant was not faulted for not notifying the employer that he was taking the psychotropic drugs because he had no knowledge of their possible side effects. Thus, the use of excessive force was proven, but excessive use of force is not abuse, per se. 368 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 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 sustained. 389 The federal government created, established hiring criteria, and funded job training positions within the Ohio Bureau of Employment Services for Disabled Veterans’ Outreach Specialists (DVOPS), and Local Veterans’ Employment Representatives (LVERS). The OBES and Department of labor negotiated changes in the locations of these employees which resulted in layoffs which were not done pursuant to Article 18. Title 38 of the United States Code was found to conflict with contract Article 18. There is no federal statute analogous to Ohio Revised code section 4117 which allows conflicting contract sections to supersede the law, thus federal law was found to supersede the contract. As the arbitrator’s authority extends only to the contract and state law incorporated into it, the DVOPS’ and LVERS’ claim was held not arbitrable. Other resulting layoffs were found to be controlled by the contract and Ohio Revised Code sections incorporated into the contract (see, Broadview layoff arbitration #340). The grievance was sustained in part. The non-federally created positions had not been properly abolished and the affected employees were awarded lost wages for the period of their improper abolishments. 390 The grievant was an employee of the Lottery Commission who was removed for theft. The agency’s rules prohibit commission employees from receiving lottery prizes, however the grievant admitted redeeming lottery tickets, but not to receiving notice of the rule. The arbitrator noted that while the employer may have suspected the grievant of stealing the tickets, there was no evidence supporting that suspicion and it cannot be a basis for discipline. The arbitrator found that the grievant did redeem lottery coupons in violation of the employer’s rule and Ohio Revised Code section 3770.07(A) but that he had no notice of the prohibition either through counseling or orientation. The grievant was reinstated without back pay but with no loss of seniority. 425 Three Bureau of Employment Services employees grieved that their seniority dates were wrong. They had held positions with the employer until laid off in 1982. They were called back to intermittent positions within 1 year but not appointed to full-time positions until more than 1 year had elapsed from their layoff. The employer determined that they had experienced a break in service as placement in intermittent positions was not considered to meet the definition of being recalled or re-employed. The arbitrator found that the term “re-employment” carries its ordinary meaning and not that meaning found in the Ohio Administrative Code when used in Article 16 and the 1989 Memorandum of Understanding of Seniority, thus the grievants did not experience a break in service because they had been re-employed to intermittent positions. The grievants were found to continue to accrue seniority while laid off. The employer was ordered to correct the seniority dates of the grievants to show no break in service and that any personnel moves made due to the seniority errors must be corrected and lost wages associated with the moves must be paid. 426 Article 43.01 states that “[n]o verbal statements shall supersede any provisions of this Agreement." In the instant case a staff representative relied on a verbal statement by a receptionist over the phone. As Arbitrator Drotning put it in the cited case “to find for the Union on the grounds of a clerical error would be an injustice to both parties in their negotiations which resulted in the Contract language...". 582 (1994-97 contract) 43.02 – Renegotiations Does not incorporate merger and bar doctrine from Ohio Administrative Code 124-3-05. 20 If the parties negotiated on a topic, the agreement is not silent about the topic. 20 Smoking policy in effect prior to 1-2-87 was not “fringe benefit”. 48
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INDEX BY CONTRACT SECTION ARTICLE 1
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this case, one cannot conclude that
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Muskingum Counties that were consol
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in Article 24.04 as a meeting. The
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Article 2.01 requires that neither
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The Arbitrator found that when the
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hardship when an employee was on Un
Page 15 and 16:
determined that through Article 5,
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The grievant had a thirty-day time
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Management established a list of in
Page 21 and 22:
the FR clothing during these five m
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11.11 - Concern for Pregnancy Hazar
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of the contract occurred. Based upo
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“In paragraph 3…the word “win
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overtime. The arbitrator found that
Page 31 and 32:
an educated guess, the grievance mu
Page 33 and 34:
2. The Agreement also designates th
Page 35 and 36:
which this particular agreement did
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In this case the Union grieved that
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Arbitrator held that the Grievant f
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when he was placed back into his fo
Page 43 and 44:
selected because she was within ten
Page 45 and 46:
she was in Section 17.04 applicant
Page 47 and 48:
for a new DCS Assessment. The union
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won is not sufficient to prove incr
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Ohio Revised Code 145.298 requires
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18.04 (formerly Article 18.03 of 19
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establishes that the just cause sta
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suspension would be excessive and u
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employee cannot be on “notice”
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grievant was a nine-year employee w
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not lead to the conclusion that the
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grievant’s allegation that the si
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etween the grievant and his supervi
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her car on state property and she p
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The Employer had just cause to remo
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The employer had just cause to remo
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a period of about 10-15 minutes whe
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commodities was completely lacking
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answer questions, even after the De
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offenders. The incident was recorde
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judgment and his less than credible
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employees and the Union are aware t
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once the Youth was on the ground. C
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enroll in an EAP program within fiv
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The parties did not intend that pre
Page 93 and 94:
progressive and commensurate discip
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Bureau of Employment Services, had
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jurisdiction to resolve differences
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language toward a number of inmates
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a motor vehicle with an inoperative
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The grievant was removed for allege
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her work. The arbitrator stated tha
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meeting. The evidence also suggeste
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egarding IME’s within ODNR. The a
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individual under the supervision of
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arbitrator noted that if the behavi
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particularly in light of layoffs, b
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“extraordinarily patient with the
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and he had remained in contact with
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credible. Evidence presented indica
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oad, commonsensical guidelines abou
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aware of the grievant’s poor work
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procedural error. He found that whe
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youth at his facility. The evidence
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COs were aiding in investigations a
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The grievant was involved in a resp
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with sleep apnea and begun treatmen
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that he would have accrued during t
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years of state service. The arbitra
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workers who were aware of the condu
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criminal Assault and Falsification.
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held that removal was unreasonable,
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was knowledgeable of the corrective
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24.04 - Pre-Discipline supervisor.
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equire support before one can estab
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is considered when fashioning a rem
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The grievant was an investigator wi
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egarding the conduct of a superviso
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The grievant was a Corrections Offi
Page 161 and 162: considered the grievant’s guilty
Page 163 and 164: 24.05. The Arbitrator agreed with t
Page 165 and 166: The grievant was reinstated to her
Page 167 and 168: consider that the co-worker may hav
Page 169 and 170: grievant’s removal was upheld, an
Page 171 and 172: once the Youth was on the ground. C
Page 173 and 174: undermines the purpose of the EAP p
Page 175 and 176: exercised its discretion in an arbi
Page 177 and 178: the possible violation was not brou
Page 179 and 180: irrelevant for the purpose of calcu
Page 181 and 182: grievance was held arbitrable, (the
Page 183 and 184: prohibited from using the grievance
Page 185 and 186: employee in her right to bring a gr
Page 187 and 188: 26, 1994. The language of Contract
Page 189 and 190: y the grievant, would be compensabl
Page 191 and 192: committed other acts of neglect of
Page 193 and 194: filed a grievance arguing that assi
Page 195 and 196: guarantee that a document has suffi
Page 197 and 198: 25.08 because the union made excess
Page 199 and 200: 26.03 Work on Holidays No dispute e
Page 201 and 202: ARTICLE 28 - VACATIONS 28.01 - Rate
Page 203 and 204: contains various interventions and
Page 205 and 206: comported entirely with her initial
Page 207 and 208: ARTICLE 32 - TRAVEL 32.02 - Persona
Page 209 and 210: ARTICLE 36 - WAGES 36.02 - General
Page 211: 37.04 - In-Service Training Under 3
Page 215 and 216: 43.03 - Mid-Term Contractual Change
Page 217 and 218: permanent part-time employees earn
Page 219 and 220: she was evaluated below average in
Page 221 and 222: “similar or related series” as
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