by Contract Number (PDF) - OCSEA

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withdrawn and one was improper.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 Arbitrator held that the proper resolution of
this issue lies within Article 19. To hold that
Article 19 is inapplicable to the grievance would
require the Arbitrator to ignore the parties’ CBA
and the plain meaning of Article 19. The plain
language of Article 19 does not forbid multiple
grievances over a similar infraction, but only
limits the remedy to individual claims. The
Arbitrator held that the Agreement does not
guarantee that classifications will remain
unchanged throughout the life of the agreement.
The analysis sought to resolve each claim needs
to occur in accord with Article 19 to determine
the appropriate remedy. 979
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
13.03—Meal Periods
13.04 – Rest Periods
Section 13.07 applies to breaks during overtime
periods while section 13.04 applies to breaks
during the regular work hours. 35
13.05 – Reassignments
The posting was found to be a position that
should have been posted under Section 17.03
guidelines. The position was a full-time
permanent position not a transfer or temporary
reassignment. The transfer of the employee to fill
a need permanent, full time is not a transfer. 303
The employer’s ability to implement scheduling
changes is restricted by the “work area” language
negotiated by the parties in the “memorandum of
Understanding.” This was supported by the job
groupings contained in the pick-a-post posting
and the grievant’s job description. To disregard
an employee’s pick-a-post selection by changing
a work area would directly violate the negotiated
work area provisos. Operational needs cannot be
used to bypass the work area requirements
contained in the Memorandum of Understanding.
448 (1992-94 contract)
13.06 – Report –in Locations
Under 13.06, an employee is a field employee
only when assigned field work; the 3rd sentence
of the third paragraph only covers employees
who are on 1000 hour assignments; thus
employees who are neither currently under 1000
hour assignments nor currently assigned to field
work are covered by the 4 th paragraph. 84