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number – was de minimis. The grievant is a
seventeen-year employee with no active
disciplines and an exemplary work record. The
arbitrator noted that the grievant’s conduct
complied with Rule 25 of the “Performancebased
Standards Track” and the provisions of the
Whistleblower Statute, “thereby advancing the
explicit and desirable goals of the Adult Parole
Authority and the State of Ohio.” The
Whistleblower Statue specifically prohibits the
removal or suspension of an employee who
complies with the requirements of the statute.
The arbitrator also found that the grievant was a
victim of disparate treatment when comparing
the serious violation of the Parole Officer and the
minimal measure of discipline imposed upon
him. The arbitrator concluded that the grievant’s
removal “was unreasonable, arbitrary, and
capricious and not for just cause.” 849
The grievant was removed from his position for
making sexual comments and other types of
nonverbal sexual conduct towards a Deputy
Registrar who worked in the same building, thus,
creating a hostile work environment. The
arbitrator found that the evidence and testimony
presented by the employer was clear and
convincing that the grievant’s conduct was
unwelcome, offensive and adversely effected the
victim’s job performance, ultimately becoming a
major factor in “constructively discharging her”.
The two aggravating factors which weighed the
most against the grievant were the serious nature
of his misconduct and his resistance to
rehabilitation despite that fact that he had
received sexual harassment training as the result
of an earlier violation. 850
Grievant was removed for violating agency
policy against physically and or verbally abusing
a resident. Although there was not enough proof
of physical abuse, there was sufficient evidence
of verbal abuse to sustain the charge and the
subsequent removal. If there is a solid “web of
evidence” that eliminates all other plausible
explanations, a circumstantial case can be
sufficient to meet a “clear and convincing”
evidentiary standard required in physical and
verbal abuse cases, but to also exercise extreme
caution in such cases. The arbitrator found that
given the combination of strong circumstantial
evidence and witness credibility (a crucial factor
in this case), these supported the employer’s
position to sustain the charge of verbal abuse
against the grievant. There was insufficient
evidence of physical abuse; eyewitness
testimony could only depict grievant’s demeanor
as aggravated, that he made abusive remarks, and
directed intimidating behavior at the resident--
enough evidence to amount to verbal abuse as
defined by the center’s policy. Grievant’s
inconsistent, varied and generally unconvincing
testimony undermined his credibility. The
arbitrator found that at a minimum, the grievant
struck something, possibly with a paddle, at least
three times causing loud noise, sufficiently
intimidating the resident who was known by
grievant to be intimidated by these acts, that
grievant lost his temper with the resident and
verbally abused him in accordance with the
definition of verbal abuse contained in the
Department’s policy. 851
The grievant was charged with failing to utilize
the proper techniques to diffuse a physical attack
against her by a patient. The patient was a much
larger person than the grievant and was known to
be aggressive. She allegedly punched the patient
several times in an attempt to get him to release
her hair. The arbitrator determined that while it
was clear the grievant placed herself in a position
to be a target of the patient and her judgment was
very suspect, a lapse in common sense, the
failure to flee and the improper use of hair
release did not equal abuse of a patient. The
arbitrator noted that there was no evidence that
the patient sustained any physical injuries. The
arbitrator found that “…it is not reasonable to
fire an employee for employing immediate and
reasonable defensive measures that come to the
fore to avoid serious injury”. 852
The grievant was given a 10-day suspension for
various alleged violations including Neglect of
Duty, Insubordination, Exercising Poor
Judgment; Failure of Good Behavior and
Working Excess Hours Without Authorization.
The Union argued that the same person
conducted the third step proceeding, the predisciplinary
meeting, another third step meeting
and also prepared the notice of the predisciplinary
meeting notice. In essence, the
grievant’s “Accuser, Judge and Employer
Representative.” The arbitrator determined that
there was no conflict and that the contract does
not require that different individuals preside over
the various steps in the process. He noted that
the pre-disciplinary meeting was not an
adjudicatory hearing, stating that it is described
in Article 24.04 as a meeting. The arbitrator
found that five examination reports were not
submitted by the grievant. The supervisor was