ARBITRATION DECISION NO.:

641 A ( decision clarification to case #641)

UNION:

OCSEA, Local 11, AFSCME, AFL-CIO

EMPLOYER:

Ohio Department of Mental Health

Northwest Behavioral Healthcare

DATE OF ARBITRATION:

October, 7, 1997

DATE OF DECISION:

OCTOBER 9, 1997

GRIEVANT:

Betty Williams

OCB GRIEVANCE NO.:

28-18-961230-1402-01-04

28-18-961217-1397-01-04

ARBITRATOR:

Anna DuVal Smith

FOR THE UNION:

Herman Whitter

FOR THE EMPLOYER:

Tim Wagner

KEY WORDS:

Union dues

Good faith mitigation of damages

Notification of Determination of Rights

FACTS:

Arbitrator clarified her decision on the above cited grievances and both parties notified the arbitrator of their mutual agreement on the issues of withholding union dues and reinstatement of insurance.

AWARD: NA

TEXT OF THE OPINION: * * *

VOLUNTARY LABOR ARBITRATION TRIBUNAL

In the Matter of Arbitration

Between

OHIO CIVIL SERVICE

EMPLOYEES ASSOCIATION

LOCAL 11, AFSCME, AFL-CIO

and

OHIO DEPARTMENT OF

MENTAL HEALTH

DECISION CLARIFICATION

Anna DuVal Smith, Arbitrator

Case No. 28‑18‑961230‑1402‑01‑04

Case No. 28‑18‑961217‑1397‑01‑04

Hearing

Betty Williams, Grievant

Remedy

Date of Hearing: October 7, 1997 Place: Northcoast Behavioral Healthcare

Management Advocate‑ Timothy Wagner Northfield, Ohio

Union Advocate: Herman Whitter

Issues and Answers

Issue 1: Was leave of eleven (11) hours of vacation for November 9‑10, 1996 properly denied?

Answer: Yes.

Issue 2: An issue on insurance reinstatement and claims was discussed and resolved by mutual agreement.

Agreement: The parties mutually agree the Ohio Department of Mental Health will immediately follow up on insurance reinstatement and payment of claims.

Issue 3: An issue on withholding of Union dues was discussed and resolved by mutual agreement.

Agreement: The Union will rebate Union dues to the extent they have been overpaid.

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Issue 4: Is the Grievant entitled to overtime for holidays she would have worked but for her removal?

Answer: Pursuant to the past practice of the parties, this issue is untimely as inclusion of overtime was not

raised during the grievance procedure up to and

including the arbitration bearing.

Issue 5: Is the Grievant entitled to interest?

Answer: No

.

Issue 6: Did the Grievant make a good faith attempt to mitigate damages?

Answer: Yes. The good faith standard is low and the burden is on the Employer. No specific effort is required, nor is success. The Employer did not establish that the Grievant failed to make a reasonable effort to secure income. In this case, the Grievant unsuccessfully sought income by a number of methods, including those used to secure her employment with ODMH. She testified she consulted newspaper advertisements, friends, and postings at OBES when she went to apply for unemployment benefits, but her education, vision and lack of transportation hindered her success. She also testified she was under the impression she had completed her application for unemployment benefits. The Notice of Determination of Benefits Rights which she received by mail about the time her grievance arbitration was scheduled did not tell her

otherwise, but instead states, "Claimant's application is allowed," speaks to

appeal rights and procedure, and makes reference to a forthcoming "determination of eligibility." It was reasonable for her to await that determination and not to be alarmed when it was not immediately forthcoming. Nowhere in here is there indication of a bad faith attempt to take advantage of the situation at the expense of the Employer. The Grievant

believed she had filed for unemployment benefits and she sought other work.

This clarification applies only to Case Nos. 28‑18‑961217‑1397‑01‑04 and 28‑18‑961230‑1402‑01‑04.

_____________________________

Anna DuVal Smith, Ph.D. Arbitrator

Cuyahoga County, Ohio October 9, 1997 **2**

Date: October 9, 1997

Anna DuVal Smith, Ph.D.

3411 Helen Road

Shaker Heights, Ohio 44122‑3870

(216) 295‑0430

FACSIMILE TRANSMISSION

FAX (216) 283‑2651

To: Linda Thernes

Ohio Department of Mental Health (330) 929‑6659

Herman Whitter (614) 487‑1526

OCSEA/AFSCME

Michael Duco (614) 466-1859

Ohio Office of Collective Bargaining

Number of Pages Following: 2

Special Instructions:

Revision per Robert Thornton and Herman Whitter.

Signed originals follow by U.S. Mail,

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