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(training officer). The union contended that the individual should have been placed in a pool of applicants for selection. The arbitrator found that the contract is silent on the issue of fall back rights and therefore the Ohio Revised Code § 4121.121(B) (2) applies. The employer’s actions were consistent with ORC § 4121.121(B) (2). The employer placed the individual into a vacant position in the same classification held prior to being awarded the manager’s position. Article 18 had no bearing on this grievance. Due to the absence of specific contractual language, the issue of fall back rights is controlled by ORC § 4121.121(B) (2). 920 17.01 – Policy The employer verbally promised that if the grievant’s transfer did not work out, she could return to her old position. There was no time limit on this promise, and so the grievant should be allowed to return to her old position. 446 (1992-94 contract) 17.02 – Definitions Among the rights of Management set forth in Article 5 of the Contract is the exclusive authority to determine the personnel by which governmental operations are to be conducted. This vested right, together with the authority to declare or not declare job openings under 17.02, accord the agency the discretion to vacate the position and not fill it again. 242 The grievant had a thirty-day time limit on filing her grievance starting from the date the grievant became or reasonably should have become aware of the occurrence giving rise to the grievance. The event giving rise to the grievance occurred when the grievant continued to be carried as a probationary employee after sixty days of employment. The grievant had thirty days from the date when she was wrongfully listed as a probationary employee. The Union’s argument that the grievant was not harmed until she was later removed was dismissed. The arbitrator found that as soon as the grievant was kept on probationary status and did not receive the full protection and rights of seniority status the grievant’s time for filing the grievance was running. The employer is also not liable for the training of the employee in her right to bring a grievance. The employer did not act in bad faith to keep the grievant in the dark as to her rights. The employee also had worked for the State previously and had adequate time to discover the issue of her probationary status and raise it in a timely fashion. The grievance was not arbitrable since it was untimely. 344 The transfer without posting the position is different from the situation where the employer may use managerial discretion (#329). In this situation there is specific language governing and limiting the rights of management in Article 17 of the Agreement. 349 It was decided that the grievant was not a new State employee but she was a new employee of the agency. According to the Civil Service rules, employees for the State maintain certain benefits when they move from job to job, but the Union did not point out specific language showing that an employee moving from one state agency to another must always move at the same or greater wage rate. The new agency considered the grievant a new hire and it was generally accepted that she had a 120 day probationary period and presumably after successful completion, she would move up a step per Section 36.02 of the Agreement. The grievant’s claim that she merely transferred to the new agency was not supported. Article 17 of the Agreement defines promotions as moving to a higher pay range and a lateral transfer as a movement to a different position at the same pay range. It does not specify that a lateral transfer from one agency to another agency within the State must be at the same step within the same pay range. The employer did not transfer the grievant; she applied for a vacant position. 360 The State argued that the other candidate was not barred by Article 17.05(A) from applying for the Carpenter 2 position since he had merely made a lateral transfer as defined by Article 17.02(F). "Lateral Transfer" is defined as "an employee requested movement to a posted vacancy within the same agency which is in the same pay range as the classification the employee currently holds". The Arbitrator agreed with the State that the employee merely made a lateral transfer and was not within the probationary period. 617 (1997-2000 contract) 17.03 – Posting Section 17.03 is violated if the employer posts a notice for an opening but the position does not list all of the qualifications which the employer actually requires when filling the position. 170
In this case the Union grieved that the State violated Article 17 of the Agreement. The State filled a position without posting the position. An employee received a provisional appointment to a supervisor position outside the bargaining unit. The employee had to pass an exam to stay in that position and failed. The State returned this employee back to his old position in the bargaining unit. The arbitrator found that returning the employee to his old position was a “vacancy” under Section 17.03 of the Agreement. The arbitrator found in favor of the Union. The State had to post the position and identify the most senior employee eligible to bid on that position. 297 On April 24, 2006 the Agency posted a position for an Environmental Specialist 1 (ES1). Later the Agency withdrew that posting and applicants were sent letters on or about May 26, 2006 that the position would not be filled. Then the agency posted for an Administrative Assistant 2, with a job description which was essentially the same as that of the ES1. That position was filled on June 26, 2006. On July 6, 2006 the Union filed a grievance arguing that assigning an exempt employee to that position violated Articles 1.05 and 17.05 of the CBA. The Agency raised a timeliness objection. The Union contended that the triggering event was the June 26 filling of the AA2 position with an exempt employee and not the announced withdrawal of the ES1 position. The Arbitrator held that the Agency effectively waived its right to raise the issue of procedural arbitrability by waiting until the arbitration hearing to assert that issue. Each Party has an obligation to scrutinize the substantive and procedural aspects of a grievance while processing it through the negotiated grievance procedure and to raise relevant procedural and/or substantive objections before going to arbitration. When procedural objections are not raised earlier in the grievance process, there is a risk of losing relevant information or losing opportunities to negotiate settlements. The Arbitrator was persuaded that Article 25.03 does not impose a duty on the Union to establish a prima facie case before arbitrating the merits of a dispute. The Agency’s argument rests on their own interpretation of that Article. However the Arbitrator held that reasonable minds may differ on their interpretations; consequently, reinforcing the need for a review of the issues in an arbitration. The Agency arguments also rest on several assertions that have not been established as facts in the dispute (e.g. “bargaining unit work does not exist in the ESS.”) These assertions are better left to an arbitration. The Arbitrator held that because of the special nature of collective bargaining relationships, there is a heavy presumption in favor of arbitration when disputes arise. 989 The issue was previously found arbitrable in Arbitration Decision 989. The Arbitrator held that the evidence did not demonstrate that the Agency possessed the intent to erode the bargaining unit. Nothing in the arbitral record suggested that the Agency exerted less than reasonable effort to preserve the bargaining unit. The Arbitrator also held that the record did not demonstrate that the Agency intended to withdraw the vacancy to circumvent the agreement. Constructive erosion occurs where a new position is erroneously labeled exempt when it should have been labeled nonexempt. Constructive erosion restricts the future size of a bargaining unit; direct erosion reduces the present size of a bargaining unit. The Arbitrator used the label “hybrid” to explain the nature of the contested position, reflecting the presence of both exempt and nonexempt duties in one position. Furthermore, he posed that the fundamental issue of the grievance was: Whether the contested position was exempt or nonexempt? Consequently, the Arbitrator proposed a screening device for hybrid positions that might be useful in resolving subsequent classification disputes. This screening test puts the focus on essential duties (“Essence Test”): whether exempt or nonexempt duties are required in (essential to) daily job performance. A hybrid position is exempt if daily job performance entails exempt duties; a hybrid position is nonexempt if daily job performance necessitates nonexempt duties. The Arbitrator held that exempt duties do not somehow become nonexempt merely because bargaining-unit employees have performed them; nor do nonexempt duties become exempt because supervisors perform them. The Arbitrator’s application of the “Essence Test” indicated that the contested
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 and 32: an educated guess, the grievance mu
Page 33 and 34: 2. The Agreement also designates th
Page 35: which this particular agreement did
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
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Bureau of Employment Services, had
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jurisdiction to resolve differences
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language toward a number of inmates
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a motor vehicle with an inoperative
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The grievant was removed for allege
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her work. The arbitrator stated tha
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meeting. The evidence also suggeste
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egarding IME’s within ODNR. The a
Page 111 and 112:
individual under the supervision of
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arbitrator noted that if the behavi
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particularly in light of layoffs, b
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“extraordinarily patient with the
Page 119 and 120:
and he had remained in contact with
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credible. Evidence presented indica
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oad, commonsensical guidelines abou
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aware of the grievant’s poor work
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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
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The grievant was involved in a resp
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with sleep apnea and begun treatmen
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that he would have accrued during t
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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.
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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
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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
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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
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grievance was held arbitrable, (the
Page 183 and 184:
prohibited from using the grievance
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employee in her right to bring a gr
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26, 1994. The language of Contract
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y the grievant, would be compensabl
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committed other acts of neglect of
Page 193 and 194:
filed a grievance arguing that assi
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guarantee that a document has suffi
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25.08 because the union made excess
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26.03 Work on Holidays No dispute e
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ARTICLE 28 - VACATIONS 28.01 - Rate
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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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