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on or around August 14 and 15, 2003. At the hearing, the Arbitrator reviewed a recent award issued by Arbitrator Susan Grody Ruben for a similar case involving SEIU/District 1199 employees. The Arbitrator agreed with the essence of Arbitrator Ruben’s award. The Arbitrator held that the August 14-15 blackout was reasonably foreseeable to facilities which provide back-up generators. The Arbitrator held that state employees in the Greater Cleveland Area who fell within the following circumstances should receive their full day’s pay or have their leave balances restored: 1. State employees who reported to work and were sent home by the Employer; 2. State employees who reported to work and were denied access to the premises by authorities; or 3. State employees who were instructed by an Employer’s representative not to report to work. The Union was given 90 days from the date of the award to provide the Employer with a list of employees who fell within these circumstances. The Employer then had 60 days from the receipt of the list to verify the information. The Arbitrator retained jurisdiction. 918 13.01 – Standard Work Week Requires that work days and days off for employees who work non-standard work weeks shall be scheduled according to current practices at the time the agreement was negotiated. 55 Generally, many arbitrators have recognized that unless the agreement says otherwise, the right to schedule overtime remains in management. This “right” of management can be limited if the union can prove that scheduling changes have been implemented to avoid the payment of overtime. Article 5 and ORC 4117.08(c) clearly provide the employer with the right to determine matters of inherent managerial policy; maintain and improve the efficiency of operations; and to schedule employees. Thus, these provisions allow an employer to alter work schedules to improve efficiency based on operational needs. Sections 13.01 and 13.02 underscore the employer’s ability to schedule work. Section 13.02 defines work schedules as “an employee’s assigned shift.” Obviously, if the employer can make work schedule assignments, the employer can also establish work schedules. 149 Section 13.01 defines the work week in a manner which allows for a flexibility in scheduling; this suggests that work shall be scheduled in order to meet operational needs. 169 The employer changed the grievant’s work schedule in 1987 during the golf season (the grievant is a Golf Course Worker) from a Monday through Friday work week to a Tuesday through Saturday work week. The Union argued that this was a violation of Section 13.07 of the Agreement which prohibits the State from changing an employer’s work schedule to avoid overtime. The arbitrator found that the State did not violate Section 13.07. When the State placed the grievant on a Monday – Friday schedule in the years before the Agreement it did not create a practice which would bind it forevermore. The parties were confronted with a changed environment. For the first time in 1987 they were operating under a collective bargaining agreement. One event or action does not serve to bind the employer or the Union. It takes constant repetition to create past practice. 303 The grievant was found to be working within his classification and whether a supervisor is present at work is a matter for the employer to determine. The presence or absence of a supervisor does not go to the issue of whether the employer is rescheduling the grievant to avoid overtime. 303 A “regular” schedule as contemplated by Section 13.07 of the Agreement is not limited to Monday – Friday. In the case where the grievant works six months on a Monday – Friday schedule and six months on a Tuesday – Saturday schedule neither schedule is more irregular then the other. The standard work week must be forty hours followed by two consecutive days off. Section 13.07 is instructive in its silence; a standard work week does not necessarily mean a Monday – Friday schedule. 303 The Union filed separate grievances from Guernsey, Fairfield, Licking, Knox, Perry, and Muskingum Counties that were consolidated into a single case. Implicit in the authority to schedule employees is the ability to alter the work schedule, subject to the limitations in Article 13.07 that the work schedule was not made solely to avoid the payment of overtime. The Arbitrator found that there was no evidence that the schedule change was motivated by a desire to avoid overtime; therefore, no violation
of the contract occurred. Based upon the weather forecast known to the Employer on February 12, 2007 justifiable reasons existed to roll into 12 hour shifts. Prior notification under Article 13.02 was not required. No entitlement existed that the employees were guaranteed 16- hour shifts under a snow/ice declaration. The Employer’s conduct did not violate Section 13.07(2)’s Agency specific language. The snow storm was a short term operational need. To conclude that a snow storm is not a short term need but that rain over an extended period of time is, would be nonsensical. The record consisted of over 500 pages of exhibits and three days of hearing. That record failed to indicate that the Employer violated the parties’ agreement. 997 13.02 – Work Schedules Applies only if work schedule is ordinarily determined by parties other than employer. 32 Generally, many arbitrators have recognized that unless the agreement says otherwise, the right to schedule overtime remains in management. This “right” of management can be limited if the union can prove that scheduling changes have been implemented to avoid the payment of overtime. Article 5 and ORC 4117.08(c) clearly provide the employer with the right to determine matters of inherent managerial policy; maintain and improve the efficiency of operations; and to schedule employees. Thus, these provisions allow employer to alter work schedules to improve efficiency based on operational needs. Section 13.01 and 13.02 underscore the employer’s ability to schedule work. Section 13.02 defines work schedules as “an employee’s assigned shift.” Obviously, if the employer can make work schedule assignments, the employer can also establish work schedules. 149 This decision deals with the definition of a work area. The definition of a work area governs the rights of employees to transfer and rotate within the work areas. The case is limited to direct care employees. These employees work in State institutions and are employed in full-time, custodial and security positions. The agencies covered by this decision are Rehabilitation and Corrections; Youth Services; Mental Health and Mental Retardation/Developmental Disabilities; Ohio Veterans Home; and the Ohio Veterans Children’s Home. The Union and the State each submitted proposals to Mr. Elliot Goldstein, the arbitrator. The Union argued for strict seniority bidding, for work selection in the smallest feasible unit, post, ward or cottage, with unlimited selection rights and no limitations on the “ripple effect.” The ripple effect is the bumping and confusion caused by constant reassignments. This proposal is feasible and is working in other AFSCME represented institutions and facilities. Goldstein Decision The state argued that the Union’s proposal was impossible. The Union agreed to negotiate on several points. The Union could establish a waiting period before seniority can be exercised, limit the frequency of exercising seniority rights, and limit the number of times an employer could be reassigned. Goldstein Decision The arbitrator awarded the following: 1. With reference to Rehabilitations and Corrections, a rotation to occur every six months. There will be four different types of work to be defined by the parties and the rotation shall include one job assignment in each over the course of two years. 2. In the rest of the Agencies mentioned above, the work areas is defined as the smallest subdivision where an employee performs his or her assigned work on a regular basis. Seniority is to be one of the criteria utilized in the selection of work area; other criteria are skills and abilities and the professional needs of the facility. If the latter two factors are equal, seniority shall control. Employees are limited to exercising their right to select a post to twice in one year. Job reassignments resulting from a selection are limited to two in number. Goldstein Decision The arbitrator rejected the employer’s argument that section 13.02 gives Management the authority to deny personal leave under section 27.04. Since section 13.02 was so hotly contested, the parties would have been very careful to say exactly what they meant in drafting the language. There is no express language in the contract stating that section 13.02 would override 27.04. 475 (1992-94 contract) The Employer has the right to limit the number of persons scheduled to work at any one time pursuant to Section 13.02. Also, the Employer may alter work schedules to improve efficiencies based upon operational need under Article 5. 627 (1997 – 2000 contract)
Page 1 and 2: INDEX BY CONTRACT SECTION ARTICLE 1
Page 3 and 4: this case, one cannot conclude that
Page 5 and 6: Muskingum Counties that were consol
Page 7 and 8: in Article 24.04 as a meeting. The
Page 9 and 10: Article 2.01 requires that neither
Page 11 and 12: The Arbitrator found that when the
Page 13 and 14: hardship when an employee was on Un
Page 15 and 16: determined that through Article 5,
Page 17 and 18: The grievant had a thirty-day time
Page 19 and 20: Management established a list of in
Page 21 and 22: the FR clothing during these five m
Page 23: 11.11 - Concern for Pregnancy Hazar
Page 27 and 28: “In paragraph 3…the word “win
Page 29 and 30: overtime. The arbitrator found that
Page 31 and 32: an educated guess, the grievance mu
Page 33 and 34: 2. The Agreement also designates th
Page 35 and 36: which this particular agreement did
Page 37 and 38: In this case the Union grieved that
Page 39 and 40: Arbitrator held that the Grievant f
Page 41 and 42: when he was placed back into his fo
Page 43 and 44: selected because she was within ten
Page 45 and 46: she was in Section 17.04 applicant
Page 47 and 48: for a new DCS Assessment. The union
Page 49 and 50: won is not sufficient to prove incr
Page 51 and 52: Ohio Revised Code 145.298 requires
Page 53 and 54: 18.04 (formerly Article 18.03 of 19
Page 55 and 56: establishes that the just cause sta
Page 57 and 58: suspension would be excessive and u
Page 59 and 60: employee cannot be on “notice”
Page 61 and 62: grievant was a nine-year employee w
Page 63 and 64: not lead to the conclusion that the
Page 65 and 66: grievant’s allegation that the si
Page 67 and 68: etween the grievant and his supervi
Page 69 and 70: her car on state property and she p
Page 71 and 72: The Employer had just cause to remo
Page 73 and 74: The employer had just cause to remo
Page 75 and 76:
a period of about 10-15 minutes whe
Page 77 and 78:
commodities was completely lacking
Page 79 and 80:
answer questions, even after the De
Page 81 and 82:
offenders. The incident was recorde
Page 83 and 84:
judgment and his less than credible
Page 85 and 86:
employees and the Union are aware t
Page 87 and 88:
once the Youth was on the ground. C
Page 89 and 90:
enroll in an EAP program within fiv
Page 91 and 92:
The parties did not intend that pre
Page 93 and 94:
progressive and commensurate discip
Page 95 and 96:
Bureau of Employment Services, had
Page 97 and 98:
jurisdiction to resolve differences
Page 99 and 100:
language toward a number of inmates
Page 101 and 102:
a motor vehicle with an inoperative
Page 103 and 104:
The grievant was removed for allege
Page 105 and 106:
her work. The arbitrator stated tha
Page 107 and 108:
meeting. The evidence also suggeste
Page 109 and 110:
egarding IME’s within ODNR. The a
Page 111 and 112:
individual under the supervision of
Page 113 and 114:
arbitrator noted that if the behavi
Page 115 and 116:
particularly in light of layoffs, b
Page 117 and 118:
“extraordinarily patient with the
Page 119 and 120:
and he had remained in contact with
Page 121 and 122:
credible. Evidence presented indica
Page 123 and 124:
oad, commonsensical guidelines abou
Page 125 and 126:
aware of the grievant’s poor work
Page 127 and 128:
procedural error. He found that whe
Page 129 and 130:
youth at his facility. The evidence
Page 131 and 132:
COs were aiding in investigations a
Page 133 and 134:
The grievant was involved in a resp
Page 135 and 136:
with sleep apnea and begun treatmen
Page 137 and 138:
that he would have accrued during t
Page 139 and 140:
years of state service. The arbitra
Page 141 and 142:
workers who were aware of the condu
Page 143 and 144:
criminal Assault and Falsification.
Page 145 and 146:
held that removal was unreasonable,
Page 147 and 148:
was knowledgeable of the corrective
Page 149 and 150:
24.04 - Pre-Discipline supervisor.
Page 151 and 152:
equire support before one can estab
Page 153 and 154:
is considered when fashioning a rem
Page 155 and 156:
The grievant was an investigator wi
Page 157 and 158:
egarding the conduct of a superviso
Page 159 and 160:
The grievant was a Corrections Offi
Page 161 and 162:
considered the grievant’s guilty
Page 163 and 164:
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 and 216:
43.03 - Mid-Term Contractual Change
Page 217 and 218:
permanent part-time employees earn
Page 219 and 220:
she was evaluated below average in
Page 221 and 222:
“similar or related series” as
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