by Contract Number (PDF) - OCSEA

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