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one’s previous conduct, it would be unfair or unjust to make the statement). 92 Being “on call” is not necessarily the same as being on stand-by. Whereas employees are not required to be near a telephone when “on call,” they are so required when on stand-by under ODOT procedures. The arbitrator did not decide whether “on call” employees are entitled to stand-by pay since that was not at issue in the grievance. 92 The distinction between being on stand-by and being on call is that an employee on stand-by is required to keep himself available for work. An employee who is “on call” is not required to respond when contacted by beeper, nor is he required to accept the work. In differentiating the two statuses the important questions are (1) is employee free to use his time for his own benefit and (2) are the call backs so frequent that employee is not really free to us the time for his own benefit. 100 The status of the EPA’s On Scene Coordinator does not depend on whether one calls it on-call or standby, but on whether he or she is required by the agency…to be available for possible call to work, under Article 13,12 of the contract. “oncall” as used for the On-scene Coordinators means “stand-by” within the meaning of Article 13.12. 464 (1992-94 contract) Employees who are restricted in their physical location and personal condition or whose time is so interrupted by employer calls that they are not free to use the time effectively for their own purposes, and who are informed that they are required to be available, are working. 464 (1992-94 contract) The grievant’s vacancy posting, position description, and class specifications state continuous on-call status as a job duty. It is clear that the grievant had no option but to be on call and respond to calls. 464 (1992-94 contract) 13.13 – Flextime/Four Day Work Week 13.14 – Shift Rotation, Swing Shifts, Split Shifts The arbitrator determined that there was never a requirement of readiness conveyed to the grievants. This was supported by the fact that in at least thirteen years, the employer had never disciplined anyone for failing to respond. They were not required to stay at a specific location or within close proximity to work tools. The arbitrator noted that although the grievants did alter their lifestyles somewhat to accommodate their employer’s needs, they were largely free to live their lives as they chose. 831 13.15 – Emergency Leave Section 13.15 of the agreement gives the authority to declare a snow emergency to the employer, but does not specify that the Director of Highway Safety is the sole and exclusive authority to issue declarations of emergency. The Deputy Director of ODOT District5, called the situation an emergency when asking District 5 employees to report to work and work overtime to the limits of their capabilities. It is reasonable for the employees to believe that he had the proper authority to do so and they are entitled to rely upon his representations in such circumstances. The case is the same for those employees who had previously received a letter stating that they were to report to work when the Director of Highway Safety declared an emergency. Those employees are not to be expected to ask the Deputy Director if he is acting upon the authority of the Director of Highway Safety before responding to the call. 275 The agreement gives the authority to declare an emergency to the employer. Since, under the contract, an emergency is considered to exist when the employer declares it so, the arbitrator is not permitted to second guess the employer as to whether an emergency existed. 275 Section 13.15 indicated that an emergency does not exist if the situation is normal or reasonably foreseeable at the work site. Fourteen inches of snow in April in south central Ohio is not reasonably foreseeable. 275 In the arbitrator’s interpretation of Section 13.15 of the Agreement the work “emergency” was defined. First, an emergency is not limited to weather conditions. The arbitrator used the following analysis: 1. Is the event (a prison escape) “normal or reasonably foreseeable to the place or employment and/or position description of the employee?” An escape is a situation reasonably foreseeable under the position description of a Correctional Officer.
2. The Agreement also designates the employer as the declarer of emergencies. The second question is whether the employer by its actions should be estopped to deny that an emergency took place. In the case at hand the first line supervisor used the work emergency and had apparent authority to declare an emergency. The supervisor’s actions were ratified by his superiors. The second shift was held over, thus violating routine overtime rules. 299 Arbitrations are by common practice aimed at fairness (estoppel is at the basis of equity – the law of fairness). Estoppel is a venerable contract doctrine used by arbitrators when justice demands. 299 The lieutenant referred to the escape as an emergency and the superiors ratified his authority. Overtime rules can only be violated when a Section 13.15 emergency exists. By failing to make the employees whole for the contract violation, the employer ratified the lieutenant’s words. 299 In discussing the issue of emergency pay, the first question is whether the event is “normal or reasonably foreseeable to the place of employment and/or position description of the employee.” The next step is did the employer declare the emergency. The last consideration is whether the employer, through its actions is estopped from claiming this situation was not an emergency. For example, Did the employer follow the correct call out procedure for voluntary overtime? Did anyone in a position of authority or apparent authority characterize the situation as an emergency? Interoffice communications written after the alleged emergency cannot be relied upon and so are not evidence of the concepts of estoppel. 337 The arbitrator found that the grievants were not entitled to emergency pay since the State had never declared an emergency. The fact that a Sergeant at Marion Correctional Institution used the word emergency does not mean that the employer declared an emergency. 343 The grievants were at the District 10 garage when called to their supervisor’s office. The Department Head of Design and the Survey Supervisor ordered them to an “emergency” where they were to work ten hour days to repair a culvert. They were to stay at a hotel and meals and lodging were paid by the employer. The grievants were not paid according to section 13.15 and they filed a grievance. The arbitrator held that an emergency requires a formal announcement or statement and neither internal memos nor the supervisor’s statement to that effect are sufficient. The employer was not estopped from arguing that no formal emergency existed due to supervisor’s statements and internal memos referring to an emergency. Also, the grievants were not ordered to go to the work site, but were asked whether they wanted to go. Thus, the grievance was denied. 385 The Arbitrator concluded that under Contract Article 13, Section 13.15, the State has the sole discretion to declare a weather emergency, not the county sheriff. Although the grievances were denied, the Arbitrator retained jurisdiction because there may be individual grievances with special circumstances that warrant relief. 606 (1997-2000 contract) Any grievant who used sick leave on the four selected dates shall not have such leave restored. Only grievants that worked the four selected dates were credited with one hour compensatory time for every two hours worked, at the straight time rate of pay. If less than one hour was worked by any grievant, he/she received compensatory time at the rate of 50% of the time worked. Grievants who used leave other than sick leave shall have restored any personal leave, vacation, and comp time, as long as it was not prescheduled. The State of Ohio abused its discretion when it failed to declare an emergency under the circumstances on four selected dates. Review of the data reflected heavy and widespread weather emergency activity on December 23, 2004, December 24, 2004, January 6, 2005, and January 7, 2005. The arbitrator was aware that the State of Ohio was able to declare an emergency under Article 13, 15 and was not attempting to add or subtract from the existing language in the Collective Bargaining Agreement. The award is non precedent setting and the full remedy requested by the Union is inappropriate for the four dates. This particular case shall not be cited in any future dispute involving Article 13.15-weather emergency. 960 The decision to lift Wood County’s emergency declaration after 10:00 a.m. was based upon a process that involved various state departments, the identification of public safety problems, impact assessment of the snow, and
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 and 24: 11.11 - Concern for Pregnancy Hazar
Page 25 and 26: of the contract occurred. Based upo
Page 27 and 28: “In paragraph 3…the word “win
Page 29 and 30: overtime. The arbitrator found that
Page 31: an educated guess, the grievance mu
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
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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
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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
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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
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workers who were aware of the condu
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criminal Assault and Falsification.
Page 145 and 146:
held that removal was unreasonable,
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was knowledgeable of the corrective
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24.04 - Pre-Discipline supervisor.
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equire support before one can estab
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is considered when fashioning a rem
Page 155 and 156:
The grievant was an investigator wi
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egarding the conduct of a superviso
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The grievant was a Corrections Offi
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considered the grievant’s guilty
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24.05. The Arbitrator agreed with t
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The grievant was reinstated to her
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consider that the co-worker may hav
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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
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the possible violation was not brou
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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
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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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