by Contract Number (PDF) - OCSEA

The grievant was removed for allegedly allowing
meat to enter the food chain without inspection
and for allowing product to be shipped without
inspection of its label. The arbitrator noted that
the grievant’s problems coincided with transition
to a new program. Records indicate that the
grievant did not effectively adapt to the new
system. The arbitrator noted that discipline is
used to correct a problem and must be
progressive. The record indicated that this
instance was the grievant’s third performancerelated
violation and according to the discipline
grid, called for a suspension. The arbitrator
stated that a long term employee like the grievant
deserved another chance. However, returning
the grievant to her job without training would be
futile. 762
The arbitrator determined that the charges of
failing to notify a supervisor of an absence or
follow call-in procedure and misuse of sick leave
were without merit. He found that the charge of
AWOL did have merit. The issue of what
constitutes a pre-disciplinary hearing/meeting
arose in this arbitration. A hearing was held, but
the hearing officer did not issue a report. She
later testified that a report was not issued
because no hearing occurred. Instead of the
hearing officer issuing a report, management
dropped two of the charges, changed one and set
up another pre-disciplinary hearing. The
arbitrator referred to Section 24.04 of the
Contract, which requires a pre-disciplinary
conference but never refers to that conference as
a hearing. It is called a meeting and the term is
used five or more times in the section. One
sentence states what is to occur at the meeting:
“The Union and/or employee shall be given the
opportunity to ask questions, comment, refute, or
rebut.” The Union was able to prove that a predisciplinary
“meeting” did indeed take place
because the Union called witnesses and
questioned them at the meeting. The arbitrator
determined management’s tactic to be in
violation of the contract. He concluded that the
prejudicial process contaminated the charge for
which the arbitrator found the grievant guilty to
the point that no discipline was warranted. 765
The grievant was charged with using his mace
against a member of the public during a “road
rage” incident and leaving the victim,
temporarily blind, on the side of the highway.
The arbitrator found that the grievant’s alibi was
offered to late to be credible and his witnesses
were not credible. The arbitrator determined that
although the incident occurred while the grievant
was off duty, the discipline issued by the
employer was justified because of the use of
state-issued weapon and the fact that the act was
committed while the grievant was in uniform.
768
The arbitrator determined that it was not
reasonable to deny an employee roll call pay
when the employee’s removal has been found to
be without just cause. Roll call pay is for
attending a mandatory meeting and is identical to
other work which requires a meeting with
management.769
The evidence clearly established that the grievant
was 25 minutes late for work. The arbitrator
noted that management’s policy did not support
its position that an employee could be both tardy
without mitigating circumstances and AWOL for
the same period of 30 minutes or less.The
arbitrator found that management violated
§24.04 of the Collective Bargaining Agreement
when it denied the grievant representation at a
meeting regarding his timesheet. Management
had already spoken to the Union regarding this
matter, but at a subsequent meeting the next day
denied representation. The employer prevented
the grievant from choosing wisely when he was
given a direct order to correct his timesheet
within 55 minutes. 770
The grievant made threatening comments to her
supervisor in a DOH office. The arbitrator
determined that comments made to members of
the center’s police department and the Highway
Patrol Trooper, in addition to the grievant’s
insubordination supported the state’s decision to
remove the grievant. 772
The grievant was accused of having an
unauthorized relationship with an inmate and of
writing checks to the inmate. The arbitrator
stated that the grievant’s testimony and
statements were inconsistent and did not match
the facts. While he accepted the premise that
some of the witnesses had motivation to lie, the
arbitrator noted that neither the order of events
which occurred not the documents nor the
testimonies supported the grievant’s conspiracy
theory. The arbitrator found that the evidence
and testimonies presented made a convincing
case that the grievant was involved with the
inmate which threatened security at the
institution. 773