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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
“extraordinarily patient with the grievant” and gave him several reminders to submit the examination reports. The grievant clearly understood he was to submit the reports. The grievant’s failure to submit the reports was a failure to perform a fundamental part of his job. The Employer failed to make its case with regards to the grievant’s time sheets. The employer did not show just cause to discipline the grievant for working excess hours without authorization. Though the time sheet was not clear, it was obvious that the grievant was not claiming hours beyond his scheduled hours. The arbitrator determined that there was no just cause for Working in Excess Poor Judgment, Failure of Good Behavior and Exercising Poor Judgment; however, he found just cause for Insubordination and Neglect of Duty.The arbitrator found the 10- day suspension reasonable. The decision by the employer to suspend the grievant for 10 days in this case was based in part on an act of insubordination that occurred approximately one month prior to the charges in this matter. 854 The grievant was charged with providing Mine Safety and Health Administration compliance training as an independent contractor for compensation. He stated that he had been providing the training sine the late 1980’s and saw nothing wrong with it. The supervisor gave the grievant a direct order to discontinue providing the training. Following the direct order, the grievant notified management that he would be providing the training and that the Division did not provide the compliance training. Management stated that providing the training was a conflict of interest. The BWC Code of Ethics prohibits employees from engaging in outside employment that results in “conflict or apparent conflict with the employee’s official duties and responsibilities.” The arbitrator concluded that outside employment and matters of his employer need not be direct and a relationship is recognized if outside employment relates “in any way to workers compensation matters.” The arbitrator noted that the Bureau considered providing the training at one time but chose not to due to a lack of funds. That consideration clearly established the training as a BWC matter. The grievant’s supervisor at the time encouraged him to provide the training because the Bureau did not provide the training. While it was confirmed by both parties that the grievant did not provide the training as a BWC employee, the grievant could have been assigned the task by his supervisor. “It is important that the public understand that the employees of the Bureau act only in the interest of the people uninfluenced by any consideration of selfinterest, except those inherent in the proper performance of their duties.” The 10-day suspension was within the scope of the violation, however, the employer, through the grievant’s supervisor, contributed to the grievant’s conduct. While the supervisor’s encouragement did not constitute permission from the employer, it was sufficient evidence to show that BWC must share responsibility for the grievant’s conduct. 855 The burden of proof for the employer where a correction officer is charged with misconduct of a criminal nature is clear and convincing of which the arbitrator must be pretty certain the grievant is guilty. The use of polygraph testing will be given weight to their results when they corroborate direct evidence of innocence. The grievant’s guilty plea in court and the use of the polygraph test results were not persuasive enough to deny the grievance, but other evidence did support the charge that grievant physically abused an inmate. The arbitrator sites to the following evidence of grievant’s guilt: (1)the grievant’s disappearance with the inmate for a length of time, although the parties disputed the approximate length, while en-route to the captain’s office, did provide enough time for the abuse to take place; (2)the grievant could not explain the procedure he took in transporting the inmate with two other correction officers and his description of what happened between himself and the inmate was unreliable; (3)the grievant was untruthful in his testimony about what happened at the polygraph examination because evidence did not support his contention that the questions were too personal, that the examiner was not professional and that he was not told he could quit without admitting guilt. 856 The grievant was charged with engaging in his outside job, scalping baseball tickets, while on FMLA to care for sick parents. The arbitrator found that the employer failed to prove that the grievant did not provide assistance to his parents while on leave. However, it was clear that the grievant engaged in his supplemental employment while on leave. There was no evidence the parties agreed that FMLA was subject to the same contractual conditions as under Article 29.04 regarding unauthorized use of sick leave or abuse of sick leave. There are no provisions in FMLA restricting an employee’s use of the leave to medical treatment. Though
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INDEX BY CONTRACT SECTION ARTICLE 1
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this case, one cannot conclude that
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Muskingum Counties that were consol
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in Article 24.04 as a meeting. The
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Article 2.01 requires that neither
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The Arbitrator found that when the
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hardship when an employee was on Un
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determined that through Article 5,
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The grievant had a thirty-day time
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Management established a list of in
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the FR clothing during these five m
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11.11 - Concern for Pregnancy Hazar
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of the contract occurred. Based upo
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“In paragraph 3…the word “win
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overtime. The arbitrator found that
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an educated guess, the grievance mu
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2. The Agreement also designates th
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which this particular agreement did
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In this case the Union grieved that
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Arbitrator held that the Grievant f
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when he was placed back into his fo
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selected because she was within ten
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she was in Section 17.04 applicant
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for a new DCS Assessment. The union
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won is not sufficient to prove incr
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Ohio Revised Code 145.298 requires
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18.04 (formerly Article 18.03 of 19
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establishes that the just cause sta
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suspension would be excessive and u
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employee cannot be on “notice”
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grievant was a nine-year employee w
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not lead to the conclusion that the
Page 65 and 66: grievant’s allegation that the si
Page 67 and 68: etween the grievant and his supervi
Page 69 and 70: her car on state property and she p
Page 71 and 72: The Employer had just cause to remo
Page 73 and 74: The employer had just cause to remo
Page 75 and 76: a period of about 10-15 minutes whe
Page 77 and 78: commodities was completely lacking
Page 79 and 80: answer questions, even after the De
Page 81 and 82: offenders. The incident was recorde
Page 83 and 84: judgment and his less than credible
Page 85 and 86: employees and the Union are aware t
Page 87 and 88: once the Youth was on the ground. C
Page 89 and 90: enroll in an EAP program within fiv
Page 91 and 92: The parties did not intend that pre
Page 93 and 94: progressive and commensurate discip
Page 95 and 96: Bureau of Employment Services, had
Page 97 and 98: jurisdiction to resolve differences
Page 99 and 100: language toward a number of inmates
Page 101 and 102: a motor vehicle with an inoperative
Page 103 and 104: The grievant was removed for allege
Page 105 and 106: her work. The arbitrator stated tha
Page 107 and 108: meeting. The evidence also suggeste
Page 109 and 110: egarding IME’s within ODNR. The a
Page 111 and 112: individual under the supervision of
Page 113 and 114: arbitrator noted that if the behavi
Page 115: particularly in light of layoffs, b
Page 119 and 120: and he had remained in contact with
Page 121 and 122: credible. Evidence presented indica
Page 123 and 124: oad, commonsensical guidelines abou
Page 125 and 126: aware of the grievant’s poor work
Page 127 and 128: procedural error. He found that whe
Page 129 and 130: youth at his facility. The evidence
Page 131 and 132: COs were aiding in investigations a
Page 133 and 134: The grievant was involved in a resp
Page 135 and 136: with sleep apnea and begun treatmen
Page 137 and 138: that he would have accrued during t
Page 139 and 140: years of state service. The arbitra
Page 141 and 142: workers who were aware of the condu
Page 143 and 144: criminal Assault and Falsification.
Page 145 and 146: held that removal was unreasonable,
Page 147 and 148: was knowledgeable of the corrective
Page 149 and 150: 24.04 - Pre-Discipline supervisor.
Page 151 and 152: equire support before one can estab
Page 153 and 154: is considered when fashioning a rem
Page 155 and 156: The grievant was an investigator wi
Page 157 and 158: egarding the conduct of a superviso
Page 159 and 160: The grievant was a Corrections Offi
Page 161 and 162: considered the grievant’s guilty
Page 163 and 164: 24.05. The Arbitrator agreed with t
Page 165 and 166: The grievant was reinstated to her
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consider that the co-worker may hav
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grievant’s removal was upheld, an
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once the Youth was on the ground. C
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undermines the purpose of the EAP p
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exercised its discretion in an arbi
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the possible violation was not brou
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irrelevant for the purpose of calcu
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grievance was held arbitrable, (the
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prohibited from using the grievance
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employee in her right to bring a gr
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26, 1994. The language of Contract
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y the grievant, would be compensabl
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committed other acts of neglect of
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filed a grievance arguing that assi
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guarantee that a document has suffi
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25.08 because the union made excess
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26.03 Work on Holidays No dispute e
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ARTICLE 28 - VACATIONS 28.01 - Rate
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contains various interventions and
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comported entirely with her initial
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ARTICLE 32 - TRAVEL 32.02 - Persona
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ARTICLE 36 - WAGES 36.02 - General
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37.04 - In-Service Training Under 3
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arbitrator found the grievance arbi
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43.03 - Mid-Term Contractual Change
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permanent part-time employees earn
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she was evaluated below average in
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“similar or related series” as
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