by Contract Number (PDF) - OCSEA
by Contract Number (PDF) - OCSEA
by Contract Number (PDF) - OCSEA
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on or around August 14 and 15, 2003. At the<br />
hearing, the Arbitrator reviewed a recent award<br />
issued <strong>by</strong> Arbitrator Susan Grody Ruben for a<br />
similar case involving SEIU/District 1199<br />
employees. The Arbitrator agreed with the<br />
essence of Arbitrator Ruben’s award. The<br />
Arbitrator held that the August 14-15 blackout<br />
was reasonably foreseeable to facilities which<br />
provide back-up generators. The Arbitrator held<br />
that state employees in the Greater Cleveland<br />
Area who fell within the following<br />
circumstances should receive their full day’s pay<br />
or have their leave balances restored:<br />
1. State employees who reported to<br />
work and were sent home <strong>by</strong> the Employer;<br />
2. State employees who reported to<br />
work and were denied access to the premises<br />
<strong>by</strong> authorities; or<br />
3. State employees who were<br />
instructed <strong>by</strong> an Employer’s representative<br />
not to report to work.<br />
The Union was given 90 days from the date<br />
of the award to provide the Employer with a<br />
list of employees who fell within these<br />
circumstances. The Employer then had 60<br />
days from the receipt of the list to verify the<br />
information. The Arbitrator retained<br />
jurisdiction. 918<br />
13.01 – Standard Work Week<br />
Requires that work days and days off for<br />
employees who work non-standard work weeks<br />
shall be scheduled according to current practices<br />
at the time the agreement was negotiated. 55<br />
Generally, many arbitrators have recognized that<br />
unless the agreement says otherwise, the right to<br />
schedule overtime remains in management. This<br />
“right” of management can be limited if the<br />
union can prove that scheduling changes have<br />
been implemented to avoid the payment of<br />
overtime. Article 5 and ORC 4117.08(c) clearly<br />
provide the employer with the right to determine<br />
matters of inherent managerial policy; maintain<br />
and improve the efficiency of operations; and to<br />
schedule employees. Thus, these provisions<br />
allow an employer to alter work schedules to<br />
improve efficiency based on operational needs.<br />
Sections 13.01 and 13.02 underscore the<br />
employer’s ability to schedule work. Section<br />
13.02 defines work schedules as “an employee’s<br />
assigned shift.” Obviously, if the employer can<br />
make work schedule assignments, the employer<br />
can also establish work schedules. 149<br />
Section 13.01 defines the work week in a manner<br />
which allows for a flexibility in scheduling; this<br />
suggests that work shall be scheduled in order to<br />
meet operational needs. 169<br />
The employer changed the grievant’s work<br />
schedule in 1987 during the golf season (the<br />
grievant is a Golf Course Worker) from a<br />
Monday through Friday work week to a Tuesday<br />
through Saturday work week. The Union argued<br />
that this was a violation of Section 13.07 of the<br />
Agreement which prohibits the State from<br />
changing an employer’s work schedule to avoid<br />
overtime. The arbitrator found that the State did<br />
not violate Section 13.07. When the State placed<br />
the grievant on a Monday – Friday schedule in<br />
the years before the Agreement it did not create a<br />
practice which would bind it forevermore. The<br />
parties were confronted with a changed<br />
environment. For the first time in 1987 they were<br />
operating under a collective bargaining<br />
agreement. One event or action does not serve to<br />
bind the employer or the Union. It takes constant<br />
repetition to create past practice. 303<br />
The grievant was found to be working within his<br />
classification and whether a supervisor is present<br />
at work is a matter for the employer to<br />
determine. The presence or absence of a<br />
supervisor does not go to the issue of whether<br />
the employer is rescheduling the grievant to<br />
avoid overtime. 303<br />
A “regular” schedule as contemplated <strong>by</strong> Section<br />
13.07 of the Agreement is not limited to Monday<br />
– Friday. In the case where the grievant works<br />
six months on a Monday – Friday schedule and<br />
six months on a Tuesday – Saturday schedule<br />
neither schedule is more irregular then the other.<br />
The standard work week must be forty hours<br />
followed <strong>by</strong> two consecutive days off. Section<br />
13.07 is instructive in its silence; a standard<br />
work week does not necessarily mean a Monday<br />
– Friday schedule. 303<br />
The Union filed separate grievances from<br />
Guernsey, Fairfield, Licking, Knox, Perry, and<br />
Muskingum Counties that were consolidated into<br />
a single case. Implicit in the authority to<br />
schedule employees is the ability to alter the<br />
work schedule, subject to the limitations in<br />
Article 13.07 that the work schedule was not<br />
made solely to avoid the payment of overtime.<br />
The Arbitrator found that there was no evidence<br />
that the schedule change was motivated <strong>by</strong> a<br />
desire to avoid overtime; therefore, no violation