by Contract Number (PDF) - OCSEA
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by Contract Number (PDF) - OCSEA
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(training officer). The union contended that the<br />
individual should have been placed in a pool of<br />
applicants for selection. The arbitrator found<br />
that the contract is silent on the issue of fall back<br />
rights and therefore the Ohio Revised Code §<br />
4121.121(B) (2) applies. The employer’s actions<br />
were consistent with ORC § 4121.121(B) (2).<br />
The employer placed the individual into a vacant<br />
position in the same classification held prior to<br />
being awarded the manager’s position. Article<br />
18 had no bearing on this grievance. Due to the<br />
absence of specific contractual language, the<br />
issue of fall back rights is controlled <strong>by</strong> ORC §<br />
4121.121(B) (2). 920<br />
17.01 – Policy<br />
The employer verbally promised that if the<br />
grievant’s transfer did not work out, she could<br />
return to her old position. There was no time<br />
limit on this promise, and so the grievant should<br />
be allowed to return to her old position. 446<br />
(1992-94 contract)<br />
17.02 – Definitions<br />
Among the rights of Management set forth in<br />
Article 5 of the <strong>Contract</strong> is the exclusive<br />
authority to determine the personnel <strong>by</strong> which<br />
governmental operations are to be conducted.<br />
This vested right, together with the authority to<br />
declare or not declare job openings under 17.02,<br />
accord the agency the discretion to vacate the<br />
position and not fill it again. 242<br />
The grievant had a thirty-day time limit on filing<br />
her grievance starting from the date the grievant<br />
became or reasonably should have become aware<br />
of the occurrence giving rise to the grievance.<br />
The event giving rise to the grievance occurred<br />
when the grievant continued to be carried as a<br />
probationary employee after sixty days of<br />
employment. The grievant had thirty days from<br />
the date when she was wrongfully listed as a<br />
probationary employee. The Union’s argument<br />
that the grievant was not harmed until she was<br />
later removed was dismissed. The arbitrator<br />
found that as soon as the grievant was kept on<br />
probationary status and did not receive the full<br />
protection and rights of seniority status the<br />
grievant’s time for filing the grievance was<br />
running. The employer is also not liable for the<br />
training of the employee in her right to bring a<br />
grievance. The employer did not act in bad faith<br />
to keep the grievant in the dark as to her rights.<br />
The employee also had worked for the State<br />
previously and had adequate time to discover the<br />
issue of her probationary status and raise it in a<br />
timely fashion. The grievance was not arbitrable<br />
since it was untimely. 344<br />
The transfer without posting the position is<br />
different from the situation where the employer<br />
may use managerial discretion (#329). In this<br />
situation there is specific language governing<br />
and limiting the rights of management in Article<br />
17 of the Agreement. 349<br />
It was decided that the grievant was not a new<br />
State employee but she was a new employee of<br />
the agency. According to the Civil Service rules,<br />
employees for the State maintain certain benefits<br />
when they move from job to job, but the Union<br />
did not point out specific language showing that<br />
an employee moving from one state agency to<br />
another must always move at the same or greater<br />
wage rate. The new agency considered the<br />
grievant a new hire and it was generally accepted<br />
that she had a 120 day probationary period and<br />
presumably after successful completion, she<br />
would move up a step per Section 36.02 of the<br />
Agreement. The grievant’s claim that she merely<br />
transferred to the new agency was not supported.<br />
Article 17 of the Agreement defines promotions<br />
as moving to a higher pay range and a lateral<br />
transfer as a movement to a different position at<br />
the same pay range. It does not specify that a<br />
lateral transfer from one agency to another<br />
agency within the State must be at the same step<br />
within the same pay range. The employer did not<br />
transfer the grievant; she applied for a vacant<br />
position. 360<br />
The State argued that the other candidate was not<br />
barred <strong>by</strong> Article 17.05(A) from applying for the<br />
Carpenter 2 position since he had merely made a<br />
lateral transfer as defined <strong>by</strong> Article 17.02(F).<br />
"Lateral Transfer" is defined as "an employee<br />
requested movement to a posted vacancy within<br />
the same agency which is in the same pay range<br />
as the classification the employee currently<br />
holds". The Arbitrator agreed with the State that<br />
the employee merely made a lateral transfer and<br />
was not within the probationary period. 617<br />
(1997-2000 contract)<br />
17.03 – Posting<br />
Section 17.03 is violated if the employer posts a<br />
notice for an opening but the position does not<br />
list all of the qualifications which the employer<br />
actually requires when filling the position. 170