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For the Ohio Civil Service Employees Association/AFSCME Local 11/AFL-CIO:
David Justice, Staff RepresentativeMark E. Linder, Assistant General CounselOhio Civil Service Employees Association/AFSCME Local 11/AFL-CIO
For the Ohio Department of Rehabilitation and Correction:
David J. Burrus, Labor Relations OfficerOhio Department of Rehabilitation and Correction
Krista Weida, Labor Relations SpecialistOhio Office of Collective Bargaining
A hearing on this matter was held at 9:00 a.m. on March 9, 2004, at the Chillicothe
Correctional Institution in Chillicothe, Ohio, before Anna DuVal Smith, Arbitrator, who was
mutually selected by the parties pursuant to the procedures of their collective bargaining
agreement. The parties stipulated the matter is properly before the Arbitrator and authorized her
to frame the issue on the merits. They were given a full opportunity to present written evidence
and documentation, to examine and cross-examine witnesses, who were sworn or affirmed and
excluded, and to argue their respective positions. Testifying for the Ohio Civil Service
Employees Association/AFSCME Local 11/AFL-CIO (the “Union”) were Chapter President
Cheryl Rhoads, Chief Steward Rick McElwee and the Grievant, Kathryn L. George. Testifying
for the Ohio Department of Rehabilitation and Correction (the “Employer”) were Personnel
Officer Lachona McKee and Warden James Erwin. Also in attendance was Labor Relations
Officer Chris Lambert. Joint Exhibits 1-9 were entered into evidence. The oral hearing was
concluded at 1:40 p.m. Written closing statements were timely filed and exchanged by the
Arbitrator on April 22, 2004, whereupon the record was closed. This Opinion and Award is
based solely on the record as described herein.
The Grievant has been a correction officer at Chillicothe Correctional Institution since
November 18, 1996. Job duties of correction officer include “prevents escapes or incidents
which threaten the security or safety of the facility/inmates, staff or general public which
includes, when necessary using physical force, unarmed self-defense, firearms or other force to
detain or secure inmates.” (Joint Ex. 8 & 9)
In the summer of 2002 the Grievant bid on and was awarded a Pick-A-Post position as
visiting/utility officer on the second shift. She began working in this position on or about July 2.
There are three visiting/utility posts at the institution, one of which is male-only because its
duties include inmate shakedowns. Another works the visiting stand, monitoring visits,
dispensing medications and performing other duties. The third is assigned to the A-building,
processing visitors and making reservations. A supervisor decides which officer works the
visiting stand, which one works visiting registration, and where the stand officer works after the
On July 26 the Grievant’s obstetrician-gynecologist supplied her with a statement stating
she was pregnant with an expected due date of March 22, 2003, and advising her not to lift more
than ten to fifteen pounds for the duration of her pregnancy. The Grievant reported this to her
employer the following week and worked her usual position Tuesday and Wednesday. While she
was off on personal leave on Thursday, she received a message from the personnel office asking
her to telephone the institution. When she called the next day she was told she would not be
allowed to work because of lifting restrictions.
A meeting was held the following week with Warden James Erwin during which other
posts for the Grievant were discussed. The Union could not agree to her displacing other officers
in violation of the Pick-A-Post Agreement and the warden could not agree to splittimg her job
between the visiting hall and entrance building because if she had to use force against an inmate
or visitor she would be in violation of her weight-lifting advisory. The Grievant was told to
On August 7, Chapter President Cheryl Rhoades filed a grievance on behalf of Officer
George (who was on vacation that week) claiming violation of Article 11.11 (later amended to
include Articles 2.01 and 2.02). While this grievance was being processed, the Grievant applied
for disability and dually filed a charge with the Ohio Civil Rights Commission (“OCRC”) and
the U.S. EEOC. The disability application was initially denied, but after a third-party physician
determined she was physically incapable of performing the job duties of a correction officer, she
was granted disability benefits for the period August 15, 2002 through March 25, 2003. The
documentation the Grievant submitted to substantiate her disability claim included a statement
from her doctor’s partner which states in part,
The patient’s pregnancy is complicated with chronic hypertension and she iscurrently on Labetalol to control her blood pressures. It is the policy of ourpractice that patients that are pregnant are put on limited restrictions to preventpossible complications with the pregnancy. Our policy is that patients do noheavy lifting with a 20 lb. weight limit on lifting and pushing. We have alsorecommended to patients that they work no more than 40 hours per week and nomore than eight hours a day. We find that patients that do exceed theserestrictions have increased risk of preterm labor and potential preterm delivery. (Joint Ex. 3B)
The OCRC determined there was no probable cause and dismissed the charge on October 30,
2003. There is no evidence in the record of an appeal or request for review by the EEOC.
The grievance thereafter came to arbitration as aforesaid, free of procedural defect, for
final and binding decision on the Arbitrator-framed issue of: Did the Employer violate theCollective Bargaining Agreement in refusing to provide work for the Grievant while she waspregnant? If so, what is the remedy?
In arbitration the Grievant testified she has seen approximately six other pregnant officers
working. Two of these, she said, were on work restrictions, a fact she was aware of from seeing
their files when working temporarily as a supervisor. Chief Steward Rick McElwee testified he,
too, has seen obviously pregnant officers working, but he was unable to find anything about work
restrictions in the files of the officers named by the Grievant. Training Officer and Chapter
President Cheryl Rhoades, too, testified that in her many years with the department she has seen
quite a few pregnant officers working. Never before now has she had to represent an employee
for lack of accommodation. She named two officers with firearms restrictions placed on them by
their doctors. Other nonpregnant officers have been accommodated where they have been
prohibited by domestic violence convictions from carrying firearms or because of medical
restrictions. Warden Erwin testified that sometimes an accommodation is made for the sake of
training, such as how a shotgun is held or by performing exercises at half speed. Not all
positions require carrying a firearm, and employees can bid only on those for which they are
qualified. The institution has made accommodation for some disabled employees under a
transition–to–work program, but these are based on a doctor’s assessment of the employee’s
ability to return to full duty within ninety days. He further testified that he can think of no
position in the institution that does not require self-defense ability and that the issue with respect
to the Grievant was not her pregnancy but the lifting restriction.
III. PERTINENT PROVISIONS OF THE CONTRACT
Neither the Employer nor the Union shall discriminate in a way inconsistent with the laws of
the United States or the State of Ohio on the basis of race, sex, creed, color, religion, age, nationalorigin, political affiliation, disability, sexual orientation, or veteran status.
No employee shall be discriminated against, intimidated, restrained, harassed or coerced in
the exercise of rights granted by this Agreement, nor shall reassignments be made for these purposes.
The Employer will make a good faith effort to provide alternative, comparable work and
equal pay to a pregnant employee upon a doctor’s recommendation.
Only disputes involving the interpretation, application or alleged violation of a provision of
the Agreement shall be subject to arbitration. The arbitrator shall have no power to add to, subtractfrom or modify any of the terms of this Agreement, nor shall he/she impose on either party a limitationor obligation not specifically required by the expressed language of this Agreement. (Joint Ex. 1)
The Union’s position is that the Employer failed to rebut the Union’s prima facie case
that Chillicothe Correctional Institution impermissibly discriminated in excluding a pregnant
woman with a weight advisory of 15 pounds from working inasmuch as the employer presented
no evidence demonstrating the ability to lift more than 15 pounds is essential to good job
performance. It did not establish which, if any, essential functions of the position she was unable
to perform. Neither the correction officer classification nor its position description has a weight
lifting qualification. Nor was there any evidence of what weight, if any, is required for unarmed
self-defense, just the personal beliefs of the warden. In fact, Training Officer Rhoades testified
that it is leverage, not weight, that is key to unarmed self-defense. Further, the Grievant’s doctor
issued only an “advisory.” That is, the Grievant was offered an opinion, not given a command.
She was thus not under a weight-lifting restriction, but had free will. Additionally, the warden is
not an expert in obstetrics. He is therefore not qualified to rebut the Grievant’s position that she
was able to perform all her duties and responsibilities in emergency situations. He did not even
get a medical opinion before prohibiting her from returning to work, as has been done in other
disability cases. Dr. Copeland, on the other hand, opined that she could perform her job at least
until December 25, 2002. Then, too, other officers have been able to requalify in unarmed self-
defense and weapon training, and to perform their normal job duties during their pregnancies.
The Employer thus had a past practice of accommodating pregnant correction officers until now.
The Union argues that Articles 2.01, 11.11 and 34.05 demonstrate that the Employer is
required to make a good faith attempt to provide reasonable accommodation. The fact that there
is no light duty policy does not negate the requirement to accommodate where possible. The
Employer never did try. It just rejected the Union’s proposal and instead offered a proposition
that would violate the contractual rights of another employee.
As to the Employer’s claim that allowing the Grievant to work as a correction officer
poses a direct threat to the health and safety of others, the Union submits that this is an overly
protective condition that has a discriminating effect on the employment of women. It is not
based on an individualized assessment and the most current medical knowledge and reasonable
medical judgment as it should be. If safety is its claimed purpose, the policy must be shown to
serve it. Merely raising the mantra of “safety” will not do. As supported by Dr. Copeland and
unrebutted by the Employer, correction officers experiencing a typical pregnancy should have
little difficulty performing their regular duties until girth becomes an issue, most often after the
first trimester. The fact that the Grievant was awarded disability benefits retroactively does not
negate the fact that the warden implemented a discriminatory policy.
Finally, the Union argues that the Pregnancy Discrimination Act of 1978, amending Title
VII of the Civil Rights Act, makes it clear that it is discriminatory to treat pregnancy-related
conditions less favorably than other medical conditions.
The Union concludes that the record establishes that the Employer discriminated against
the Grievant, violating the Pregnancy Discrimination Act and Article 2.01 and 11.11 of the
Collective Bargaining Agreement when it denied her work despite the fact that she could perform
the essential functions of her position. It therefore requests that the grievance be sustained in its
The Employer urges the Arbitrator not to entertain the Union’s argument with respect to
Title VII of the Civil Rights Act. Citing panel member Arbitrator Murphy in the Donald Miles
case (Case No. 14-23-000828-0029-01-13), it says such claims are outside the four corners of the
contract and therefore not within the Arbitrator’s jurisdiction. Additionally, the Grievant filed
her discrimination claim in the proper forum where it was dismissed.
Looking at the Union’s argument that the Employer violated Article 2.02, the Employer
asserts that no evidence supports this claim. The testimony that approximately six other pregnant
correction officers, including two with restrictions, were allowed to work, was rebutted by Union
Steward McElwee who found no documentation of work restrictions in those officers’ files.
The Employer submits that the only claim the Arbitrator should consider is whether the
Employer made a good faith effort to find work for the Grievant under Article 11.11. This article
clearly does not mandate an alternate assignment. The Employer contends it met the
requirements of this provision when it met at least twice with the Union, considered the Union’s
The Employer continues that there is no merit to the Union argument that other
employees have been allowed to continue working when they could not participate in self-
defense training or firearms certification. These employees were allowed to participate after
clarification or consultation with their doctors. Moreover, there is a difference between training
and being able to use the training, and there is no similarity between the Grievant’s situation and
that of those who are not permitted to carry firearms.
Finally, the Employer argues that its position in this matter is validated by the Department
of Administrative Service’s approval of the Grievant’s disability claim. While the delay may
have had a financial impact on the Grievant and her family, she received what she was due under
the Collective Bargaining Agreement. Any other relief would add to the terms of the contract
and is therefore outside the Arbitrator’s authority to grant.
For all these reasons, the Employer requests that the grievance be denied in its entirety.
The Arbitrator is persuaded that the Employer has not violated the Collective Bargaining
Agreement in this case. To begin with, the Grievant’s position requires the ability to use physical
force and unarmed self-defense. The incidents requiring the exercise of this ability can and do
occur wherever there are inmates or even members of the general public present including the A-
building and visitors hall. Not withstanding the fact that unarmed self-defense depends in large
measure on leverage, the Arbitrator has no reason to disbelieve the warden’s testimony that
exertion greater than the weight limits specified by the Grievant’s doctor are required. His
opinion, though not an expert one, is grounded in his years of experience in corrections and,
significantly, it was corroborated by the independent third-party physician who determined on
remand from the Department of Administration Service’s hearing officer, that the Grievant was
physically incapable of performing the job duties of a correction officer. The same physician’s
opinion also supports the Employer’s claim that, despite the use of the term “advised” on the
doctor’s slip, this was a restriction in the sense that one acts against the advice at one’s peril.
While the Grievant does have free will and may choose to assume the risks, one cannot expect an
employer to disregard competent medical opinion that the employee should not be engaged in
certain activities. It is true that the Employer here did not seek another opinion, but it had no
reason to do so for it did not question the doctor’s advice. Rather, it was the employee who
disagreed with it (or at least the Employer’s interpretation of it) and was willing to disregard it.
Thus, the burden was on her to seek another opinion, not on the Employer. Finally, even the
doctor’s partner uses the term “limited restrictions” (Joint Ex. 3B, p.10) in his memorandum
The fact that other women worked as correction officers while pregnant and other officers
were able to requalify in unarmed self-defense does not prove that the Employer discriminated
against the Grievant in refusing to accommodate her limitations. The Grievant was not simply
pregnant. She was also restricted in her ability to perform her duties whereas there is no
evidence these other officers were similarly restricted. She was thus differently situated than the
others and so different treatment was warranted. The Employer’s refusal to accommodate her
did not impose an overly protective condition with a discriminatory effect on women. It was
based not on her pregnancy, but on her weight restrictions, as demonstrated by the fact that other
women without similar restrictions did work as correction officers during their pregnancies.
Indeed, the Arbitrator finds no policy regarding pregnant correction officers in general. What she
does see is an individual employee with weight limitations placed on her by her physician which
the Employer is obliged to honor absent conflicting opinion of which none was presented. Dr.
Copeland’s opinion, which the Union urges the Arbitrator to follow, speaks to “traditional
approach” and “standard pregnancy restriction,” not whether the Grievant, herself, was capable
of performing her duties, which is why the Department of Administrative Service’s hearing
officer remanded for an individualized assessment.
The question, then, is whether the Employer made a good faith effort to accommodate the
Grievant’s restrictions. As the employer points out, the Contract does not require
accommodation, only a “good faith” effort. Here, the employer met, conferred, considered and
and ultimately rejected the Union’s proposal for the valid reason that the position’s requirements
for physical force and self-defense hold even in the visitors hall and A-building. It offered its
own proposal, which the Union rejected for valid reasons of its own. There is nothing in the
record that speaks of lack of good faith, so the Arbitrator finds no violation of Article 11.11.
Finally, there is the question of Title VII. Without addressing arbitral jurisdiction over
Title VII issues, the Arbitrator finds that the Grievant dually submitted her charge to the Ohio
Civil Rights Commission and the U.S. EEOC. The OCRC took jurisdiction and found, as does
the Arbitrator, that the Employer’s actions were not due to her pregnancy, but to her restrictions
which were more limiting than those placed on others, including pregnant females, who were
permitted to work. The Grievant thus has her answer to the Title VII issue from the OCRC.
The Employer did not violate the Collective Bargaining Agreement in refusing to provide
work for the Grievant while she was pregnant. The grievance is denied in its entirety.
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Bullying has claimed our attention as Youth Advocates over the past two years as we attempt to bring updated education to schools in Vermont. Sandra Brauer was one of the first to become familiar with and committed to the Olweus Method , attending a weeklong training in Portland, Maine and then working with various schools in her district. I interviewed her recently to glean her wisdom on