by Contract Number (PDF) - OCSEA

arbitrator noted that if the behavior displayed by
the grievant continued, he would surely be
terminated. 828
The grievant requested leave on various dates to
go to medical and dentist appointments.
Investigation by the employer revealed that the
grievant had no appointments on the dates stated
on the leave forms. The grievant was ordered to
provide a statement from his physician and
dentist regarding the appointments. The
arbitrator found that a preponderance of the
evidence supported the employer’s allegations
that the grievant was insubordinate and that he
falsified official documents. He noted that the
grievant had an active discipline at the time of
his suspension and that employers routinely
remove individuals who engage in either
misconduct. The grievant engaged in both.
Although the grievant had 22 years of state
service, it did not outweigh the mitigating factors
in this instance. 829
The grievant lost his keys at the institution and
did not report the loss for five hours. The
arbitrator determined that he used poor judgment
and was inattentive when he left his keys
unattended. The keys could have been used as a
weapon against personnel or other inmates. A
violation of the alleged charge as a second
offense permitted removal as a discipline. The
grievant had disciplines from reprimands to fines
prior to this violation. The arbitrator found that
management did not abuse its discretion in
removing the grievant from his position. 830
The grievant and a former girlfriend were both
employed at ToCI. The relationship did not end
amicably. During and following roll call the two
co-workers had a verbal confrontation. The
grievant allegedly struck the former girlfriend in
the presence of witnesses. The arbitrator found
that the conduct of both individuals was
deplorable and neither had convinced him that
either was the victim in this situation. He
determined that the “…the discipline conduct
was demonstrated by the grievant not Pedro.
The quid pro quo being, that is Pedro had
engaged in similar conduct the result would have
been similar in my viewpoint”. The arbitrator
found no mitigation to lessen the discipline. 832
The grievant was an Elevator Inspector who was
subsequently promoted to Elevator Inspector as a
result of a settlement even though management
had reservations regarding the grievant’s ability
to perform his duties. He had two active
disciplines – a written reprimand for carelessness
after leaving a state credit card as a gas station
which he did not promptly report, and a second
written reprimand for carelessness when his state
vehicle was destroyed by flooding. The
arbitrator found that this was not a discipline
case. It was a competency case in which the
correction for inadequate performance is
reassignment, training or separation. The
grievant was a short-term employee who never
met the employer’s expectations in the
performance of his duties. The only
classification lower than the one he was in was
Elevator Inspector Trainee. The arbitrator stated
that the employer could not be expected to keep
an employee in perpetual training when that
employee “shows little or no evidence of ever
achieving at least a minimum level of
competency “. The employer produced
substantial evidence that the grievant was unable
to perform his job safely and made reasonable
efforts to help the grievant reach that a
satisfactory level of competency. The arbitrator
determined that the employer’s assessment was
reasonable. Removal was not excessive because
there were no reasonable alternatives. 833
The grievant was charged with the use of a State
gasoline card for a personal vehicle, misuse of a
parking pass, personal telephone calls, being
insubordinate and AWOL. Once removed, the
Union sought to schedule this matter for
arbitration citing Article 25.02 of the Contract
regarding the timeline for arbitration of
discharge grievances. The employer refused to
schedule an arbitration in this matter because a
criminal investigation was pending. The Union
filed an action in state court and it was agreed by
both parties that an arbitrator would hear the
dispute. Arbitrator John Murphy found that
there must be a formal criminal action pending
against the employee in order to defer the sixty
(60) day deadline for discharge grievances to be
heard. A criminal investigation was not
sufficient reason for delaying arbitration. The
grievance was scheduled for arbitration. The
arbitrator found that due to the employer’s
misinterpretation of the Contract language, the
employer violated Article 25.02. The grievance
was granted due to procedural defect and not on
substantive charges. The arbitrator stated that an
“unfortunate consequence, is this award will be
viewed as a win by the Grievant and it should
not. The overall conduct of the Grievant is not
addressed, herein, but serious concerns were