by Contract Number (PDF) - OCSEA

43.03 – Mid-Term Contractual Changes
Where removal order cites rule that was in effect at time of
offense, and rule that became effective after offense,
arbitrator did not set aside discipline because he accepted
the employer’s contention that management did not rely on
the rule that was not in effect: 1
A no smoking policy was found to be a work rule. 48
Reasonableness test: whether it uses appropriate means to
accomplish a legitimate end. “Reasonably related to
legitimate objective of management.” “Related to legitimate
business objectives.” “Involves balancing legitimate
business requirements against employee’s right to exercise
personal freedoms free from unnecessary interference
(except from government)”. 48
Notice to union of new work rules: 134
Well known and long standing rules of contract
interpretation have held that “notification” only requires that
a notice be properly posted. Receipt is not an element of
notification unless specified. 134
Past practice. 152
Section 36.05 states “current practice on reporting time shall
be continued unless mutually agreed otherwise.” It must be
presumed that the language was not thrown into the
Agreement for its appearance that the negotiators used it for
the substantive purpose of preserving roll call practices. In
other words, Section 36.05 is an exception to the
abolishment of practices brought about by Article 43,
Section 43.03. 152
When Child Care Workers were assigned the task of
supervising recreation periods, the arbitrator determined that
43.03 had not been violated because the assignment was a
“programmatic change” rather than a work rule change.
256
The Union’s argument was that no employee, including the
grievant, was ever required to satisfy sick-leave notification
requirements. This argument went unrebutted by the State
and is a complete defense. New and unprecedented rules
must be conveyed before they can be enforced. The Labor
Relations Officer did not properly inform the grievant.
Unable to reach the grievant since the grievant was too ill,
the Officer told the Union Steward the new procedure. The
Steward testified that he was not informed of the new calloff
requirement. Rather he was just told of the proper leaverequest
forms that the grievant had to fill out. There was not
effective communication; as a result, the grievant could not
properly be held responsible for his violation. 310
The Agreement, in specifically prohibiting random drug
testing, leaves testing upon reasonable suspicion to
management’s discretion. There is no discernible intent to
preclude management from ordering such testing; indeed,
the parties bargained over a drug testing provision and
intentionally elected only to
prohibit random testing. There is no basis for the arbitrator
to expand the meaning of Section 43.03 to also prohibit
testing based on reasonable suspicion. The lack of written
policy on drug-testing does not violate Section 43.03, which
requires prior notification and an opportunity for discussion
whenever a new work rule is put into place. The search
policy that was already in place does not appear to be
intended to cover searches of body fluid such as blood or
urine. Since the Warden told the grievant that failure to
submit to a drug test would result in dismissal rather than a
suspension for insubordination, it follows that management
is required to have discussions with the Union about drug
testing. It was unclear whether the drug-testing discussion
were started before or after the date of the grievance. For
this reason the employer was found not to have violated
Section 43.03 of the Agreement. 323
The grievant was removed from MANCI as a CO and
transferred to OSP. A settlement agreement was entered
into by the parties on December 4, 2001 granting the
transfer to OSP but also allowing for the grievant to carry
his institutional seniority with him to OSP under paragraph
5 of the settlement agreement. The OCSEA then intervened
declaring the settlement agreement violated Art. §16.01(B)-
Institutional Seniority of the CBA. Subsequently, OCSEA
with OCB’s consent amended the settlement agreement to
remove paragraph 5 (the transferring of institutional
seniority). The arbitrator found that the failure to transfer
the institutional seniority as proscribed in the settlement
agreement did not violate the rights of the grievant since
settlement agreements can only work within the confines of
the CBA, in which this particular agreement did not. No
other provisions in the CBA allowed such a settlement
agreement by the parties to work outside of the provisions
provided by the CBA. The arbitrator further found that the
settlement agreement did not need to be executed by the
grievant unless a waiver of individual right’s was at issue,
which was not at issue in this case. Therefore, the amending
of the settlement agreement without the grievant consenting
was valid. 818
ARTICLE 44 - MISCELLANEOUS
The Arbitrator held that the proper resolution of this issue
lies within Article 19. To hold that Article 19 is
inapplicable to the grievance would require the Arbitrator to
ignore the parties’ CBA and the plain meaning of Article 19.
The plain language of Article 19 does not forbid multiple
grievances over a similar infraction, but only limits the
remedy to individual claims. The Arbitrator held that the
Agreement does not guarantee that classifications will
remain unchanged throughout the life of the agreement.
The analysis sought to resolve each claim needs to occur in
accord with Article 19 to determine the appropriate remedy.
979
44.02 (under the 1992 – 1994 contract)