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her work. The arbitrator stated that the
significance of the grievant’s error is that she is
an investigator and the value of her work was
dependent upon her integrity. That integrity was
compromised by her actions. The arbitrator was
sympathetic to the grievant’s motivation, but
found that the grievant erred in her method of
self-protection. The action she took brought
damage to her employer. Therefore, the
arbitrator determined that the five-day
suspension was within the guidelines for a first
offense. 785
The employer alleged that the grievant provided
an invalid commercial driver’s license (CDL) to
an individual for the payment of $200. The
Arbitrator found the testimony of the individual
who received the invalid CDL was evasive,
inconsistent, and unconvincing. He also found
that the witness’s testimony does not prove the
grievant was the person who approached him in
the nightclub; however, the witness did not
exonerate the grievant. The grievant’s former
supervisor testified that the tests were graded by
machine and the Employer could not prove that
the grievant had the ability to tamper with the
scores. The supervisor also testified that the
employee seals were often not sufficiently
secured.The Arbitrator concluded that when
discipline is imposed, the reasoning used to
make the judgment is to be based upon the
evidence known at the time of the discharge.
The Arbitrator found that the parties intended the
obligation of an arbitrator was to judge the
merits of the discharge at the time it took place
and on the specific charges alleged at the time.
He noted that the evidence presented,
specifically, the deposition of the State’s witness
was flawed because the witness refused to sign
the transcript of his deposition. ollowing review
of all the evidence the Arbitrator concluded that
there was no doubt that the grievant has regularly
been associated with individuals who have been
involved in criminal activities creating an air of
suspicion around her. However, the Arbitrator
found that the appearance of impropriety did not
support the conclusion arrived at by the
Employer. 786
Grievant Johnson was a Penal Workshop
Supervisor and Grievant Paige was a Penal
Workshop Specialist, both at the Trumbull
Correctional Institute. Both supervised the Ohio
Penal Industries (OPI) division where inmates
dismantled donated personal computers,
upgraded and fixed them before sending them to
schools and other locations. Johnson served as
the “group leader” which involved supervising
Paige’s activities. A finding of pornographic
material in an inmate’s cell that was determined
to have come from OPI led to a search of the OPI
area on December 19, 2000. Numerous security
violations were found in OPI as the result of the
search including telephone splitters, cellular
phones and 3.5 floppy disks in unauthorized
areas, keys lying in unsecured areas, hidden
laptop computers with charged battery packs,
inmates legal papers and personal letters,
unauthorized tools, among many others
including a finding that several personal phone
calls were made daily on the phone without
authorization. The arbitrator found that while
the Employer failed to substantiate all of the
proposed rule violations, the cumulative effect of
the security breaches allowed by Grievant
Johnson was so egregious to the safety, health,
and security of the institution that her removal
was justified. The arbitrator found Rule 5(b),
which is the purposeful or careless act resulting
in damage, loss or misuse of property of the state
was violated due to the illegal computer, fax, and
printer use and allowing of such activity, even if
only negligent was a dischargeable offense. The
arbitrator found many other rule violations
including Rule #7 for failure to properly
inventory equipment and tools, and Rule #28 for
the grievant’s failure to control the keys thereby
jeopardizing the security of others. The
arbitrator further found that Grievant Paige’s
removal was not justified in that she was not
similarly situated as Grievant Johnson. Grievant
Paige was on probationary status at the time of
the search and had spent a limited time in the
area since she had been on sick leave. Grievant
Paige was trained and under the direct
supervision of Grievant Johnson, and therefore
the arbitrator found that any shortcoming in
Grievant Paige’s performance was directly
attributable to Grievant Johnson’s interventions.
787
The grievant was charged with entering the room
of a mental patient and striking him in the eye.
The grievant stated that any injury the patient
suffered was not the result of an intentional act
by him. It was determined that the employer
provided the only plausible explanation of what
occurred. The arbitrator based this determination
of the facts that the grievant failed to report the
incident until the next day and that the patient’s
testimony was consistent with the statement he
made during the investigation seven months
earlier. The arbitrator found the grievant’s