by Contract Number (PDF) - OCSEA

11.11 – Concern for Pregnancy Hazards
The grievant was a visitation/utility officer on
second shift at the facility. She became pregnant
and present her employer with a physician’s
statement stating so and indicating her due date.
He also advised her not to lift more than ten to
fifteen pounds for the duration of her pregnancy.
She was told by her employer she would not be
allowed to work due to her lifting restrictions.
The Union could not agree to her displacing
other officers in violation of the Pick-A-Post
Agreement and the warden could not agree to
splitting her job between the visiting hall and the
entrance building because the possibility of
having to use force against an inmate or visitor
would not be incompliance with her weighlifting
limitations. She was told to apply
disability. The arbitrator found that the
employer made a good faith effort to
accommodate the grievant’s restrictions. A
“good faith” effort is all that is required by the
contract. The parties met and both rejected the
proposals submitted. Arbitrator noted that he
grievant also submitted her charges to the Ohio
Civil Rights Commission and the U.S. EEOC.
OCRC took jurisdiction and found that that
employer’s actions were not due the grievant’s
pregnancy, but to her restrictions. The arbitrator
concurred, stating that the grievant received her
answer to Title VII issue from OCRC. 871
The grievant notified her employer that she was
pregnant and applied for accommodation to
continue working. Subsequent statements from
her physician stated that due to complications the
grievant could not lift more than 20 pounds, was
unable to run ¾ miles and could not break up
fights. Her application for accommodation was
denied. She applied for and received disability
benefits. The Union presented evidence at
arbitration that two other COs at Richland had
been accommodated by the employer during
pregnancy. The employer could not explain why
they received accommodations and the grievant
did not. The arbitrator stated, “If the employer
can demonstrate it made the requisite ‘good faith
effort to provide alternative, comparable work
and equal pay to a pregnant employee upon a
doctor’s recommendation’ (Sec. 11.11) it will
have satisfied its obligation under the
Agreement. As the record does not demonstrate
that occurred in this instance the grievance must
be sustained.”
897
The Arbitrator found that the Employer did not
violate Section 11.11 because the Employer
engaged in a good faith effort to provide
alternative comparable work and equal pay to the
two pregnant Grievants. On four of five
scheduled work days the employees would work
“relief” in “non-contact” posts. On the fifth day
the Union requested that the two employees be
assigned an “extra” or “ghost” post or be
permitted to take the day off and use accrued
leave for coverage purposes. However, the
Warden placed the Union on notice that the
institution could no longer have pregnant
employees assigned to posts as extras. Certain
posts were properly rejected based on the
Grievants’ doctor recommendations. The
Union’s proposals would have resulted in “ghost
posts.” The Grievants would have worked in
positions at the expense of other established
posts. Also, unapproved “ghost posts” would
violate the spirit of the local Pick-A-Post
agreement. Proposed uses of accrued leave
balances, personal leave, and sick leave failed.
Nothing in the record indicated the Grievants had
sufficient leave balances available to cover one
day off per week. In addition, if the Grievants
were allowed to take vacation time on dates
previously selected, the Employer would be
violating a mutually agreed to number of
vacation days made available for bid. Other
correction officers’ seniority rights would be
violated if vacations were preferentially granted
to pregnant employees. Section 27.02 entitles an
employee to four personal leave days each year;
however those four days could not possibly
cover the entire pregnancy period. Section 29.02
grants sick leave to employees “unable to work
because of sickness or injury.” A pregnancy
cannot be viewed as an “illness or injury.” 941
ARTICLE 13 - WORK WEEK,
SCHEDULES AND OVERTIME
Article 25 does not prevent an arbitrator from
enforcing Article 13. 55
The Arbitrator held that certain employees
should receive their full day’s pay or have their
leave balances restored. The Union was to
provide the Employer with a list of employees
who met the criteria the Arbitrator set forth.
This arbitration concerned a series of grievances
filed regarding the Power Outage that occurred