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work to the bargaining unit in perpetuity when the duty was not included in the classification specification. 817 The grievant bid on a Storekeeper 1 position. He won the bid but was never placed in the position. The arbitrator found that the State’s failure to place the grievant into the position was immediately apparent. “If the union believed that the work was being done by others in violation of the collective bargaining agreement, it would have been obvious at that time and it could not wait two and one-half years to file a grievance.” The arbitrator found the grievance to be filed in an untimely manner and did not rule on its merits. 903 The Agency issued an announcement that an employee in an Administrative Assistant 3 classified exempt position had been selected as the EEO Officer for the Agency. A hearing was waived and the parties presented written briefs with largely undisputed facts. Then the arbitrator had a telephone conference with representatives from each party combined. To uphold the fairness of the procedure, the Grievant submitted a sworn affidavit waiving his right to have the grievance heard in person. Classification language was the first issue. The Agency’s announcement that an exempt employee would serve as EEO Officer does not constitute an announcement that the employee is occupying a class title belonging to the bargaining unit. The duties assigned by the Agency were similar to the EEO Manager class title, one of the four exempt class titles that were within the DAS classification Series 6913 entitled “EEO Officer.” The second issue was a policy consideration: Who should be the EEO Officer—a bargaining unit member or an exempt employee? The questions of who should perform the duties and to whom they should be assigned were beyond the scope of an arbitrator’s duties. The contract limits the arbitrator to “disputes involving the interpretation, application or alleged violation of a provision of the Agreement.” The contract does not give the arbitrator the authority to consider and answer questions that appeal only to the arbitrator’s personal sense of what is fair or just. The third issue was bargaining unit erosion. The part-time duties of the EEO Officer at the Agency had always been performed by management personnel. Therefore, the assignment of duties to an exempt employee as EEO Officer was the same action that the Agency had taken over the past several years. Since the amount of bargaining unit work performed by supervisors did not increase, the arbitrator found no basis for the claim that the Agency took action for the purpose of eroding bargaining unit work. The grievance was denied. 963 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 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 Management argued that the grievance was considerably untimely, since the cause of action had occurred fifteen years earlier, when a resident worker started working as a short order cook. The grievance was filed on the same day the cooks were ordered to report to the new location. The Arbitrator held that the grievance was timely. The Arbitrator found there was insufficient evidence that the reason for giving the Veterans Hall Kitchen cooking duties to the Ohio Veterans Home Resident Workers and changing the work area of the union cooks to Secrest Kitchen was to erode the bargaining unit. Members of the bargaining unit were not displaced. There were no layoffs. Members were not deprived of jobs that were normally available to them. It appears that the only change was the work assignment. There was no evidence of any deprivation of any economic benefit to membership. The Arbitrator held that the 1994 grievance settlement had not been violated. No bad faith was established. Further, the short order grilling was de minis in nature when compared to production quantity work performed by the union cooks. The subcontracting in these circumstances had little or no effect on the bargaining unit, and was permissible under Article 39.01. 1009 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: this case, one cannot conclude that
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 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
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suspension would be excessive and u
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employee cannot be on “notice”
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grievant was a nine-year employee w
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not lead to the conclusion that the
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grievant’s allegation that the si
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etween the grievant and his supervi
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her car on state property and she p
Page 71 and 72:
The Employer had just cause to remo
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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
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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
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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
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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
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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
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aware of the grievant’s poor work
Page 127 and 128:
procedural error. He found that whe
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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
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
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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
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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
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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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