by Contract Number (PDF) - OCSEA

and he had remained in contact with one of the
inmates (Plowman) after the latter’s release from
the institution. The employer conducted an
investigation into the matter and found that the
grievant and Plowman had been friends during
Plowman’s stay at the institution, they had
several telephone conversations with each other
after Plowman release, and in an interview the
grievant admitted to having contact with
Plowman and other ex-inmates. Consequently,
the employer discharged the grievant. The
Union argued that the employer did not satisfy
Arbitrator Daughtery’s seven tests of just cause
and therefore the discharge should be overturned.
The arbitrator rejected this argument and refused
to apply Daughtery’s seven tests. In reference to
the tests he stated, “Their mechanical application
demeans the arbitration process.” He also
rejected the grievant’s contention that he did not
know that the institution’s policies prohibited
telephone contact with inmates after their
release. He reasoned that the grievant had 16
years of experience and had many hours of
training. Therefore, he could not have been
ignorant to the institution’s policies. Finally, the
arbitrator acknowledged that the offenses
committed by the grievant were serious breaches
of the code of conduct prescribed for Correction
Officers, however; he found that the penalty was
too harsh. He took into account the grievant’s 16
years of service with only one prior written
reprimand, and his selection as Officer of the
Year on a prior occasion. The arbitrator
concluded that the grievant’s offense was
serious, but a lesser punishment is appropriate in
this case. 866
The grievant involved in a verbal and physical
confrontation with a co-worker. The testimony
presented by the employer’s witnesses was found
credible by the arbitrator. The arbitrator noted
that no evidence or facts were presented to
indicate that the co-worker made any physical
gestures towards the grievant. The arbitrator
stated that the grievant’s confrontational
behavior during the incident and her continued
aggressive behavior towards co-workers
convinced him that the employer met its burden
of proof. He also noted that the employer had
shown a previous measure of restraint in its
unsuccessful attempt to correct the grievant’s
behavior. The arbitrator stated that a long-term
employee could not seek protection if he/she was
continually abusive towards co-workers or
management. 867
The grievant was charged with an unauthorized
relationship with an inmate. The employer
presented evidence that the grievant refused to
cooperate in the official investigation when she
refused to come to a pre-disciplinary meeting
stating that her doctor advised her not to go to
the institution. The arbitrator found that the
grievant’s refusal was under the guise of medical
protection. The grievant’s disability application
failed to provide the mitigating factor to overturn
her removal. The arbitrator determined that
because of the grievant’s reluctance to
participate at any stage of the investigation,
based on the evidence presented; the employer
met its burden of proof. 868
The grievant was a Therapeutic Program Worker
who worked part-time for MRDD and part-time
for a county-level supported-living provider.
The grievant was criminally charged with
resident abuse at the county facility and
terminated without an administrative hearing.
The investigator reported the allegations to the
state facility which, in turn, placed the grievant
on administrative leave and subsequently
removed him. The county’s investigator did not
speak to the grievant about the violations, nor
did the grievant have the opportunity to face his
accusers or present his position until his trial.
Neither a jury nor the hearing officer who heard
the grievant’s unemployment compensation
appeal found sufficient evidence to warrant
termination. The Union presented testimony at
arbitration that the definition for “substantiated”
in regards to evidence did not exist in the Ohio
Revised Code, or in the Medicaid regulations. It
was the Union’s position that the arbitrator must
use the ordinary definition of “substantiated”, as
well definitions included in other jurisdictions to
determine the meaning of the word. It further
noted that in the absence of a definitive
substantial evidence, the State relied on one
investigator’s declaration that the grievant was
guilty of the allegations. The arbitrator found
that the allegations of physical abuse were not
substantiated that the grievant was removed
without just cause. 870
The arbitrator found that the grievant displayed
contempt rather than compassion for a coworker,
had a insubordinate attitude towards
management, used foul language and apparently
resented being corrected and reprimanded.
However, the arbitrator found no evidence of this
behavior being a plan to intentionally harm; it
was rather a private bad joke. The arbitrator