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the arbitrator found that the grievant was initially
untruthful, his dishonesty did not warrant
removal, based on his 16 years of service and
satisfactory performance evaluations. The
arbitrator noted that if ODOT had a policy
regarding non-work which met the test of §
825.312(h) of the FMLA, the decision would
have been different. 861
Grievant was terminated from his position as
Cook 1 at the Department of Youth Services for
reporting to work 22 minutes late on June 15,
2003 and one minute late on June 16, 2003. In
addition, the grievant was arrested at the facility
for failing to pay a fine for a traffic offense. The
arbitrator found that since the grievant was late
on two consecutive days and admitted to his
prior problems of tardiness, the department was
justified in its discipline despite the severity.
The Union argued that the grievant was treated
differently than other employees, however, the
arbitrator ruled that there was no disparate
treatment because the grievant had been warned
that he needed to have his warrant cancelled,
while the other employees had not had a similar
forewarning. Furthermore, the arbitrator found
that despite the fact that the grievant was ordered
to clock out before he was arrested, it is still
possible for him to be absent without leave. In
this case, the superintendent was simply trying to
eliminate the disruption that might result from an
employee being arrested at the facility. In
addition, the arbitrator denied the Union’s
contention that the grievant’s arrest could not be
considered because it was not addressed in his
removal letter. The grievant was not terminated
for his unpaid traffic ticket but for his
unauthorized leave that resulted from his arrest.
The arbitrator also found that the state was not
required to offer a last chance agreement to an
employee because nothing in the collective
bargaining agreement required it. Finally, the
arbitrator did consider seniority as a mitigating
factor, but found that the grievant had only three
years of seniority during which time his service
with the department was poor. 862
The grievant was notified that she would be
removed from her position as a Therapeutic
Program Worker as a result of her threatening
comments to the charge nurse on duty as well as
several instances of tardiness and attendance
violations. However, prior to the imposition of
the removal, the grievant and NBH entered into
an agreement that would hold the removal in
abeyance for 180 days if she successfully
completed the EAP program and remained free
from other policy violations during that period.
On January 3, 2003, the grievant called off sick
without sufficient sick leave balance. She
successfully completed the EAP program on
May 2, 2003 but was later notified that as a
result of the January 3 rd AWOL violation, she
had failed to remain free from policy violations.
Therefore, her removal held in abeyance was
reactivated. The arbitrator ruled that to support a
claim for violation of the Workplace Violence
Prevention Policy, the employer must
demonstrate that a specific threat occurred and
the grievant had the power to carry it out. Also,
the victim must have feared or had reason to fear
for her safety. Here, the arbitrator found that the
evidence was insufficient to support a finding or
inference that a specific threat occurred. In
addition, there was no evidence to suggest that
the grievant had the power to direct clients
and/or others to physically harm or cause
property damage to the victim. Finally, after
reviewing the victim’s own written statement
and testimony, the arbitrator concluded that the
victim did not perceive the grievant’s conduct as
a threat. Therefore, the arbitrator ruled that the
employer failed to meet its burden of proof with
respect to this incident. With regard to the EAP
violation on January 3 rd , the arbitrator found that
there were several mitigating circumstances that
did not justify removal of the grievant- the fact
that the grievant was employed for 24 years with
NBH coupled with the fact that NBH originally
sought to decrease the punishment for the
confrontational incident and the attendance
violations to a five day fine subject to successful
completion of the EAP program. The arbitrator
concluded that since the employer failed to meet
its burden of proof regarding the workplace
violence incident, reinstatement of the grievant is
appropriate. However, he found that since the
grievant received a written reprimand on a prior
occasion for similar violent behavior, NBH’s
zero tolerance policy for workplace violence, and
the grievant’s violent conduct in the present
action, the grievant will not receive back pay and
the five day fine shall remain as part of the
grievant’s discipline record. 865
The grievant had 16 years of services as a
Correction Officer at Chillicothe Correctional
Institution. A confidential informant revealed
that; the grievant had supplied narcotics,
particularly heroin and cocaine, to a few of the
inmates; he had supplied tubes of Superglue as
well as food and candy to several of the inmates;