by Contract Number (PDF) - OCSEA

evident in the evidence presented by the
employer and if continued unabated the end
result will include future disciplinary action(s)
by the employer.” 834
The arbitrator determined that it was not
necessary to examine the merits of the grievance
under the ADA of 1990. The language in Article
2.01 stated: “The arbitrator shall have no power
to add to, subtract from or modify any terms of
this Agreement, nor shall he/she impose on
either party a limitation or obligation not
specifically required by the expressed language
of this Agreement”. (Emphasis added) The
arbitrator stated that he must find duties
specifically required in the expressed language
of the Contract. The arbitrator noted second
paragraph of Article 2.01 states the employer
“may” undertake reasonable accommodation
pursuant to the ADA of 1990. The term “may”
indicates that the employer had “the power to” or
“the privilege to” provide the accommodations
but was not mandated to do so. 835
The grievant was charged with an unauthorized
relationship with an inmate. She denied having a
relationship with the inmate and continued up to
and throughout the relationship Telephone
records (home and cell), transcripts of a control
call between the grievant and an inmate, the
investigator’s interview and the testimony of the
investigator at arbitration convinced the
arbitrator that the grievant was removed for just
cause. The arbitrator noted that the grievant
continued her denial of the employer’s
allegations throughout the arbitration and
provided no credible evidence to support her
position. The arbitrator also found no disparate
treatment in the employer’s decision. 836
The grievant was assigned to the dining hall to
check for contraband. He found a coat stored by
an inmate in an improper area. He dragged the
coat across the floor and threw it to the floor.
The inmate approached the grievant about the
way in which the grievant treated his clothing
and a confrontation ensued. During the
confrontation, the inmate was handcuffed and the
grievant shoved the inmate into a wall. The
grievant failed to include that action in his report.
The arbitrator found that the witnesses – other
CO’s and the inmate – were more credible than
the grievant. The arbitrator noted that the
grievant’s action “was not of an egregious
nature” and one its own would not support
removal; however, lying about what transpired
during the incident was very serious and coupled
with the excessive force warranted the grievant’s
removal. 837
The grievant reported for work under the
influence of alcohol. He signed a Last Chance
Agreement (LCA) which held his removal in
abeyance pending his participation in, and
completion of, an EAP program. Random
drug/alcohol testing was a component of the
LCA. He was told to report for a random test.
He failed to comply and was removed. The
arbitrator found that the employer’s failure to
notify the chapter president of a change in the
LCA was a violation of good faith but did not
negate the grievant’s obligation to adhere to the
agreement. The grievant had ample opportunity
to confer with his union representative prior to
signing the agreement and without specific
reason for the necessity to speak to his
representative prior to the test, the grievant’s
procedural arguments did not justify his refusal
to submit to the test. The grievant had the option
to “obey now and grieve later” and he did not
elect to do so. The arbitrator also determined
that the affirmative decision of the commission
which reviewed his unemployment
compensation application had no bearing in this
matter because different criteria was applied in
making that decision. 838
The employer raised the issue of timeliness at
arbitration. The arbitrator found that
management’s acceptance of the grievance form
at Step 2 did not relieve the grievant from timely
filing his grievance at Step 3 in accordance with
specific language of the Collective Bargaining
Agreement. “It is reasonable to assume that the
Grievant and the current Local Union President
(then steward) were well aware of the filing
procedures for discipline and were even
reminded of the procedures by the language of
the grievance form. 840
The grievant was removed from her position for
unauthorized viewing of emails of co-workers
and superiors. The arbitrator found that there are
various types of conduct which warrant removal
on the first offense; the fatal element in this case
is that the grievant could no longer be trusted by
her employer. The arbitrator stated that the
misconduct and the subsequent dishonesty
regarding her actions destroyed the employeremployee
relationship. The arbitrator noted he
lacked the authority to order the employer to
transfer the grievant to a less sensitive position,