by Contract Number (PDF) - OCSEA

More documents

Recommendations

Info

position was exempt. Although the duties were not fiduciary, many of the duties were central to managerial decision-making authority. 1024 A Criminal Justice Policy Specialist (CJPS) bargaining unit position was eliminated on December 13, 2006. A grievance was filed on November 28, 2007. The Union argued that they were led to believe the DMC bargaining unit work had been distributed to other bargaining unit employees and that the occurrences giving rise to the grievance still existed today as they did in 2006. The Arbitrator held that the Union knew or should have known as of December 13, 2006 that the CJPS position had been eliminated, thereby putting the Union on notice of that position’s duties being distributed to other employees. The Arbitrator held that the record established that the grievance was not filed pursuant to Article 25.02 (Step One); therefore, she was without authority to hear the merits of the grievance. 1038 ARTICLE 2 - NON-DISCRIMINATION Due to cuts in the budget at the Department of Mental Health, Northcoast Behavioral Healthcare had to eliminate several positions. The grievant’s position was one of them. She was employed as an Office Assistant III and sought a newly created position as a Health Information Technician I. This position required applicants to type 50 words per minute with 95% accuracy. The grievant failed the test. However, another employee bid off an Office Assistant III job and the Union insisted that management contact the grievant about this position. Management declined, stating that it was considering changing the opening to a Health Information Technician I position, and the grievant was subsequently laid off. When management decided to retain the Office Assistant III position, it sent the grievant two recall notices by certified mail. The notices indicated that the job required an applicant to type 50 words per minute with 95% accuracy. The notices were returned as undeliverable or unclaimed and another employee filled the position. The arbitrator denied the Union’s contention that the state had discriminated against the grievant in violation of Article 2 of the collective bargaining agreement. First, he found that there was no disparate treatment. He distinguished the grievant’s case from another case involving a telephone operator position. The arbitrator pointed out that in the present case management was unsure whether the opening would be posted as an Office Assistant III job or Health Information Technician I job and by the time a final decision was made, the grievant was already laid off. In the earlier case, there was no question that the job would be posted as an opening for a telephone operator and management had sufficient time to offer the job to the employee before the scheduled layoff. Secondly, the arbitrator rejected the argument that the 50 word per minute typing requirement was added to keep the grievant from filling the position. He stated that the state had the right to be sure that whoever filled the position had the necessary typing skills. Moreover, the Vice President of Human Resources testified that he would not have required the grievant to take a typing test if she had voiced her concerns about the requirement. The arbitrator also noted that the state would not have sent two certified letters to the grievant at two different addresses if it did not want to recall the grievant. Finally, the arbitrator ruled that the union did not present any credible motive that the state discriminated against the grievant. Despite the fact that the grievant was a party to a lawsuit against the department, it had occurred nine years prior to her layoff, and there was no evidence that the other employees who were party to the suit were subject to punishment. 853 The grievant was given a 10-day suspension for various alleged violations including Neglect of Duty, Insubordination, Exercising Poor Judgment; Failure of Good Behavior and Working Excess Hours Without Authorization. The Union argued that the same person conducted the third step proceeding, the predisciplinary meeting, another third step meeting and also prepared the notice of the predisciplinary meeting notice. In essence, the grievant’s “Accuser, Judge and Employer Representative.” The arbitrator determined that there was no conflict and that the contract does not require that different individuals preside over the various steps in the process. He noted that the pre-disciplinary meeting was not an adjudicatory hearing, stating that it is described
in Article 24.04 as a meeting. The arbitrator found that five examination reports were not submitted by the grievant. The supervisor was “extraordinarily patient with the grievant” and gave him several reminders to submit the examination reports. The grievant clearly understood he was to submit the reports. The grievant’s failure to submit the reports was a failure to perform a fundamental part of his job. The Employer failed to make its case with regards to the grievant’s time sheets. The employer did not show just cause to discipline the grievant for working excess hours without authorization. Though the time sheet was not clear, it was obvious that the grievant was not claiming hours beyond his scheduled hours. The arbitrator determined that there was no just cause for Working in Excess Poor Judgment, Failure of Good Behavior and Exercising Poor Judgment; however, he found just cause for Insubordination and Neglect of Duty. The arbitrator found the 10-day suspension reasonable. The decision by the employer to suspend the grievant for 10 days in this case was based in part on an act of insubordination that occurred approximately one month prior to the charges in this matter. 854 2.01 - Non-Discrimination While the arbitrator ruled that a probationary removal is not generally arbitrable, She found that the issue of sex discrimination is arbitrable under 2.01 and 25.01. 207 The employer has a duty to prohibit sexual harassment and take action to eliminate sexual harassment in the work place. 286 The warning of a supervisor to an employee of “be careful with the girls” does not qualify as an adequate warning of what behavior will be deemed sexual harassment. 286 Even though the grievant was not on notice of what constituted sexual harassment, pinching a woman’s midriff just below her brassiere was deemed a failure of good behavior and the grievant’s removal was modified to a fifteen day suspension without pay or benefits. 286 Evidence in a sexual harassment case on how the two alleged victims dressed, talked, and their daily mannerisms were not admitted into the arbitration hearing. The arbitrator found the dress and mannerisms of the woman has no relevant relationship to the charge of unwanted sexual touching or unwanted sexual exposure. 324 The Union failed to present evidence of supervisory intimidation, discrimination on the basis of handicap (alcoholism) or disparate treatment. 441 (1992-94 contract) The burden of proving disparate treatment is on the Union. The Union showed that a number of employees were facially treated differently from the grievant, but different treatment alone does not prove disparate treatment. To prove disparate treatment, the different treatment must either have no reasonable and contractually appropriate explanation or be motivated by discrimination or other ill purposes. The Union proved only one part of the claim of disparate treatment: different treatment. However, the Union failed to show that the employees in question were in similar or analogous position. In almost all the cases cited by the Union, the employees in question had little or no prior discipline. In this case, the grievant had a long and clear record of disobeying rules with no indication that the discipline was corrective. 452 (1992-94 contract) The Employer had just cause to remove the grievant for making racial slurs. The grievant never apologized, nor did he testify as to his intention or state of mind when he made these racial slurs. His longevity, the harm caused, his prior discipline and any mitigating factors must be balanced. Such balancing is at the prerogative of the Employer, unless it is not progressive or commensurate. The arbitrator cannot substitute her judgment for that of the employer without such a finding. 452 (1992-94 contract) The Arbitrator rejected the Union’s argument that the grievant, who falsified his applications, resumes and a recommendation letter, was discriminated against. The Union did not corroborate its allegations that the grievant was removed because he filed a multitude of grievances or because he was black. 453 (1992- 94 contract) The employer had just cause to remove the grievant for sexual harassment and failure of good behavior. The grievant was provided with proper notice concerning the sexual harassment policy articulated in the Work Rules and Procedures. The employer’s training efforts were
Page 1 and 2: INDEX BY CONTRACT SECTION ARTICLE 1
Page 3 and 4: this case, one cannot conclude that
Page 5: Muskingum Counties that were consol
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
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
Page 115 and 116:
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
Page 123 and 124:
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
Page 131 and 132:
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
Page 141 and 142:
workers who were aware of the condu
Page 143 and 144:
criminal Assault and Falsification.
Page 145 and 146:
held that removal was unreasonable,
Page 147 and 148:
was knowledgeable of the corrective
Page 149 and 150:
24.04 - Pre-Discipline supervisor.
Page 151 and 152:
equire support before one can estab
Page 153 and 154:
is considered when fashioning a rem
Page 155 and 156:
The grievant was an investigator wi
Page 157 and 158:
egarding the conduct of a superviso
Page 159 and 160:
The grievant was a Corrections Offi
Page 161 and 162:
considered the grievant’s guilty
Page 163 and 164:
24.05. The Arbitrator agreed with t
Page 165 and 166:
The grievant was reinstated to her
Page 167 and 168:
consider that the co-worker may hav
Page 169 and 170:
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
Page 177 and 178:
the possible violation was not brou
Page 179 and 180:
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
Page 199 and 200:
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
show all

by Contract Number (PDF) - OCSEA

Create successful ePaper yourself

Delete template?

Save as template?