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not meet the minimum qualifications for the Highway Maintenance Worker 3 position. However, the arbitrator noted that using a proficiency test to assess relative skill and ability was not permitted by the agreement and that the portion of the employer’s evidence which included the results of the test was inappropriate. 760 The grievant was employed for over 19 years in the Information and Technology Division of the Ohio Bureau of Worker’s Compensation as a Telecommunications Systems Analyst 3. He, along with five other employees, applied for a promotion to the position entitled Information Technology Consultant 2. Another applicant (Nelson) was awarded the position despite the fact that the grievant had more seniority and had a bachelor’s degree that was pertinent to the position. Nelson did not meet the minimum qualifications for the job and lied on his application when he stated that he possessed an undergraduate core curriculum in computer science and an undergraduate degree in math. The employer argued that the grievant also falsified his application by stating that he had a degree in Electrical Engineering when in fact he had a degree in Electronic Engineering. The arbitrator found however, that despite the fact the grievant did falsify his application, he did not falsify his core curriculum. Nelson’s claim that he possessed a bachelor’s degree and completed core course work in computers and technology represents a more serious misrepresentation of fact than that of the grievant’s. In addition, the arbitrator recognized that management has wide discretion in managing its workforce and selecting employees for promotion. However, “the Employer is governed by the rule of reasonableness and the exercise of its management rights must be done in the absence of arbitrary, capricious, or unreasonable discretion.” The arbitrator found that the Employer’s decision to promote Nelson to a position for which he did not meet the minimum requirements was arbitrary. 863 The employer did not violate Article 17.05 when it did not select the grievant for a training officer position. The successful applicant was found to be more qualified, based upon documentation submitted with his application. The grievant did not provide materials sufficient to prove that he and the successful applicant were substantially equal. 912 The Arbitrator held that the Employer’s evaluation process was reasonable. It could not be determined that it was tainted with favoritism or discrimination. It was not administered with hostility to the Grievants. In all respects, its use was permitted by the Agreement. The selection procedure used by the Employer for these positions had been the subject of intense scrutiny and development. The element of subjectivity was reduced by the manner in which the Employer utilized the interview. By using the interview process the Employer did not violate the agreement. The ranking of and scale assigned by the Employer to education and experience was not arbitrary. Applicants were required to take a test to determine the factors of “qualifications, experience, and education.” The test had been given previously and had been taken by some applicants in the past. The action of the Employer was exceptionally generous to applicants in that the applicants were awarded the higher of the two scores they had attained. The record shows that the selected candidates were superior to the Grievants in the assessment and testing process. A claim that the selected candidates had falsified their applications could not be shown. Both grievances were denied. 937 While the Grievant claimed to have the necessary background in research methods in her summary of her qualifications, the information contained in her application and resume did not support her claim. She failed to show any experience with operational, mathematical, analytical, or statistical research methods. The Arbitrator rejected the claim that when the state denied her an interview for the Planner 3 position and awarded it to someone else, it engaged in sex and/or age discrimination in violation of Article 2. A large portion of the employees in the Emergency Management Agency are women and three of the top five leadership positions are held by women .The Arbitrator held that the Grievant failed to show that she satisfied the minimum qualifications for the Planner 3 position when she applied. The grievance was denied. 938 The Arbitrator held that the state properly assigned points to the applicants for the Computer Operator 4 position and selected the appropriate applicant for the job. The Grievant was not selected because her score was more than ten points below that of the top scorer. The Union argued the Grievant should have been
selected because she was within ten points of the selected candidate and therefore, should have been chosen because she had more seniority credits than he did. The language could be clearer, but the intent is clear. If one applicant has a score of ten or more points higher than the other applicants, he or she is awarded the job. If one or more applicants have scores within ten points of the highest scoring applicant, the one with the most state seniority is selected for the position. The Arbitrator pointed out that the union’s position could result in the lowest scoring person being granted a job. If that person was awarded the job, someone within ten points of him or her could argue that he or she should have gotten the job. The Arbitrator commented on the union’s complaint that the state violated Article 25.09 when management refused to provide notes of the applicants’ interviews. The issue submitted to the Arbitrator was simply the violation of Article 17. The state provided the requested material at the arbitration hearing and the Union had the opportunity to address the notes at the hearing and in its written closing statement. 976 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 2006 DCS Assessment is content valid. The union is not limited in grieving content validity for a new DCS Assessment. The union and employees will be notified if a new assessment is implemented. Betsy Stewart and Robert Watts will be placed at management’s discretion into a DCS position once OBM gives approval. They will begin their probationary period then. They will begin receiving compensation as a DCS beginning with the pay period 04/13/08. The placement of Betsy Stewart and Robert Watts is not precedent setting nor does it violate Article 17. 994 The Arbitrator held that the procedure used by the division was not a valid method for selecting the employee to be promoted to Customer Service Assistant 2. However, simply placing the Grievant in the position would be unfair to the selected applicant. Thus, a valid method must be used to choose between the Grievant and the selected applicant. While it might be desirable for the union to have input into developing the process, the test prepared and administered by DAS would provide a speedier resolution. The Arbitrator saw nothing that would justify denying the grievant back pay if he was wrongly denied a promotion because of the invalid selection method used by the employer. 1004 17.06 – Sele Proficiency Instruments (Section 17.05, 1989 Agreement) ODOT posted a vacant Equipment Operator 2 position. The grievant and others bid on the vacancy, however two applicants also had filed job audits which were awarded prior to the
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 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: when he was placed back into his fo
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
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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
Page 105 and 106:
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
Page 115 and 116:
particularly in light of layoffs, b
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“extraordinarily patient with the
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and he had remained in contact with
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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
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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
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.
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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
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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
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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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