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egarding IME’s within ODNR. The arbitrator
noted that the grievant was aware that his
employer could discipline him for failure to
release medical results. The grievant’s conduct
was insubordinate and he failed to follow clear
directives. The hearing officer decided that due
to the grievant’s work history and length of
service, and his willingness to see other
examiners, a 10-day suspension, as opposed to
removal was warranted. The arbitrator elected
not to substitute his judgment in this matter.806
The grievant was charged with sexual
harassment of a co-worker. The record indicated
that no action taken during investigation was
sufficient to modify or vacate the suspension,
however some of the statements the investigator
collected could not be relied upon because they
were hearsay or rebutted by the witness. The
arbitrator noted that the matter came down to the
testimony of one person against another and
there was no substantial evidence to sustain the
charge. The arbitrator determined that the matter
was properly before her because it was appealed
within ninety days of the Step 3 response. The
arbitrator noted that the fact that it was appealed
before the mediation meeting did not invalidate
the appeal. 807
The arbitrator found that the grievant lied about
having a handgun in his truck on State property.
The State did not prove that the grievant
threatened a fellow employee. The arbitrator
stated that it was reasonable to assume that the
grievant was either prescribed too many
medications or abusing his prescriptions. The
arbitrator determined that the grievant’s use of
prescription medications played a major role in
his abnormal behavior. The grievant’s seniority
and good work record were mitigating factors in
this case and his removal was converted to a
time-served suspension. 808
The grievant was charged with various alleged
violations including unexcused tardiness,
AWOL, and Failure of Good Behavior for not
following the directions of a superior when he
was told to take a midday lunch break before
going to his next appointment. He chose not to
take the break and to proceed to his next
appointment. The arbitrator found that the initial
determination by the employer that the AWOL
and Failure of Good Behavior charges were
“serious” was correct. However, these charges
were ultimately found to have been improperly
leveled against the grievant. The unexcused
tardiness allegation was considered diminished
in severity by the fact that some of the tardiness
charges were simply in error, others were
withdrawn and one was improper. The arbitrator
found that the employer gave proper weight to
the insubordination charge and that the
remaining tardiness charge was recidivist in
nature. He found that the charge of Exercising
Poor Judgment was proper in this instance
because the offense followed specific counseling
regarding how to handle his lunch break. This
charge was concededly less serious than
insubordination, and the 10-day suspension was
reduced to an 8-day suspension. 809
The grievant was charged with failing to initiate
payments, which resulted in negative cash flows
in projects, and making an inappropriate
payment. She was also charged with failing to
reconcile documents and failing to file
documents in a timely manner. She received a
fifteen-day suspension. The arbitrator stated that
a lack of specificity makes it virtually impossible
for the Union to establish a defense strategy. He
concluded that the circumstances surrounding the
charges against the grievant clouded the State’s
proof of misconduct. The alleged errors
occurred when the existing system was being
automated. The employer also relied on the
grievant’s prior disciplinary history. The
arbitrator determined that the Union proved its
unequal treatment claim and that a proper and
impartial investigation that should have been
conducted did not take place. 810
The grievant was charged with violating
institution policy by opening the cell door of the
segregation unit prior to the inmates being
restrained in handcuffs. Another CO struggled
with, and was accused of injury, one of the
inmates. The grievant was evasive in the
interview with the investigator regarding what
actually occurred during the incident. The
arbitrator determined that the grievant was a
relief officer who rotated among several posts.
There was no evidence that the grievant received
training regarding specific procedures for the
segregation unit. The arbitrator found the
grievant’s testimony credible. He concurred
with the Union that not all of the evidence was
considered in this matter. Although the grievant
had only twenty months of service, the fact that
she had no prior disciplines was also a mitigating
factor. 811
The grievant was involved in a verbal altercation
with the Deputy Warden of Operations regarding
failure to follow a direct order from the Warden.