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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