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(formerly Article 43.02 of 1986 – 1989 contract) Ohio Revised code 145.298 requires that under certain conditions of layoff, the Employer is required to establish a retirement incentive plan for employee of employing unit in which the layoffs are to take place: 458 (1992-94 contract) 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 charged with various alleged violations including unexcused tardiness, AWOL, and Failure of Good Behavior for not following the directions of a superior when he was told to take a midday lunch break before going to his next appointment. He chose not to take the break and to proceed to his next appointment. The arbitrator found that the initial determination by the employer that the AWOL and Failure of Good Behavior charges were “serious” was correct. However, these charges were ultimately found to have been improperly leveled against the grievant. The unexcused tardiness allegation was considered diminished in severity by the fact that some of the tardiness charges were simply in error, others were withdrawn and one was improper. The arbitrator found that the employer gave proper weight to the insubordination charge and that the remaining tardiness charge was recidivist in nature. He found that the charge of Exercising Poor Judgment was proper in this instance because the offense followed specific counseling regarding how to handle his lunch break. This charge was concededly less serious than insubordination, and the 10-day suspension was reduced to an 8-day suspension. 809 The grievant was given a 10-day suspension for various alleged violations including Neglect of Duty, Insubordination, Exercising Poor Judgment; Failure of Good Behavior and Working Excess Hours Without Authorization. The Union argued that the same person conducted the third step proceeding, the pre-disciplinary meeting, another third step meeting and also prepared the notice of the pre-disciplinary meeting notice. In essence, the grievant’s “Accuser, Judge and Employer Representative.” The arbitrator determined that there was no conflict and that the contract does not require that different individuals preside over the various steps in the process. He noted that the pre-disciplinary meeting was not an adjudicatory hearing, stating that it is described in Article 24.04 as a meeting. The arbitrator found that five examination reports were not submitted by the grievant. The supervisor was “extraordinarily patient with the grievant” and gave him several reminders to submit the examination reports. The grievant clearly understood he was to submit the reports. The grievant’s failure to submit the reports was a failure to perform a fundamental part of his job. The Employer failed to make its case with regards to the grievant’s time sheets. The employer did not show just cause to discipline the grievant for working excess hours without authorization. Though the time sheet was not clear, it was obvious that the grievant was not claiming hours beyond his scheduled hours. The arbitrator determined that there was no just cause for Working in Excess Poor Judgment, Failure of Good Behavior and Exercising Poor Judgment; however, he found just cause for Insubordination and Neglect of Duty. The arbitrator found the 10-day suspension reasonable. The decision by the employer to suspend the grievant for 10 days in this case was based in part on an act of insubordination that occurred approximately one month prior to the charges in this matter. 854 In January 1990, the OCSEA and the DRC entered into a Settlement Agreement containing several conditions intended to regulate future strip searches. This was a result of the Union suing DRC in federal court, challenging the constitutionality of the DRC’s strip search procedures. The instant case arose from DRC’s decision to strip search five black female correction officers after receiving an anonymous tip that described a correction officer who allegedly intended to bring drugs into the Allen Correctional Facility. The Arbitrator held that the Settlement Agreement was intended to be part of the Collective-Bargaining Agreement. Section 7(f) explicitly removes only “cause for search” from arbitration and grievances. “Cause for search” does not include the terms “suspicion” or “reasonable” and is not necessarily synonymous with the phrases “reasonable suspicion”, “cause for suspicion supporting the search”, or “cause for suspicion”. These are separate issues. In addition, Section 7(b) affords employees targeted for strip searches the right to review much of the information that went into the decision to strip search them. Affording employees access without the right to subject it to independent review does not protect them from arbitrary, discriminatory, or unreasonable searches or decisions. The Arbitrator held that issues involving how strip searches are conducted and the element of reasonable suspicion supporting decisions to strip search employees are substantively arbitrable under the Collective-Bargaining Agreement, which is referenced under Section 7(f) of the Settlement Agreement. The case was settled with the grievants receiving both wage and back leave accrual. 949 Management of EPA violated the Collective Bargaining Agreement by failing to give the Grievant a pro-rated vacation dump. The State was directed to credit her with 36 hours of vacation leave. Article 28 is clear in that
permanent part-time employees earn and are to be credited with paid vacation leave the same as permanent full-time employees but pro-rated for the hours worked. The Agency has complied with column one of the schedule; however, it has ignored the second column in the milestone years, thus denying these employees their entitlement to the full prorata amount earned in the milestone year. While it was true that neither the CBA nor the part-time policy mention “vacation dump”, this was the method used for years for other public employees in Ohio in the milestone years. A “vacation dump” is a lump sum credit of earned vacation that has not accrued on a biweekly basis by virtue of the fact that accrual rate increases lag increases in earned annual vacation leave by one year. The mere fact that there has been a practice of not making similar adjustments for most part-time State employees does not evince a binding past practice. A past practice is binding only when it rests on a mutual agreement. There was no such evidence here. 973 44.02 - Preservation of Benefits 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 (See1992-1994 Contract) 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 (See 1992-1994 Contract) 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 statuette 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 (See 1992-1994 Contract) 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 (See 1992-1994 Contract) 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
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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
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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
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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
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an educated guess, the grievance mu
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2. The Agreement also designates th
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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
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selected because she was within ten
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she was in Section 17.04 applicant
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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
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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
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considered the grievant’s guilty
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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 and 212: 37.04 - In-Service Training Under 3
Page 213 and 214: arbitrator found the grievance arbi
Page 215: 43.03 - Mid-Term Contractual Change
Page 219 and 220: she was evaluated below average in
Page 221 and 222: “similar or related series” as
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