by Contract Number (PDF) - OCSEA

agreed that the employer could prohibit
expressions of hostility in the workplace, even
when they are merely bad jokes and take
corrective action. The arbitrator also agreed that
the grievant cannot be allowed to continue as he
is. For this reason, the charge of
Menacing/threatening/harassing behavior was
removed from his record and replaced with the
charge noted in the award. 872
The grievant went on approved disability leave.
She exhausted her available leave balances and
was placed on Physician’s Verification. The
grievant was sent a set of disability forms, but
failed to submit the documents or contact the
personnel office. The arbitrator found that the
grievant’s actions, or inactions, aggravated rather
than mitigated the situation. It is reasonable to
expect an employee experiencing an extended
absence to know that he/she must call his/her
supervisor. The grievant made no attempt to
contact her employer. The employer made
several efforts to contact the grievant regarding
her absence and the necessity to contact
personnel. Nothing in the record indicates the
employer did not have the grievant’s telephone
number or correct address; nor was there any
indication that the grievant had moved or
changed her number. The arbitrator stated he
had to assume the grievant blatantly disregarded
the employer’s efforts. He found it ironic that
had the grievant notified her employer, she could
have filed her disability application in a timely
manner. 873
The grievant was a visiting room shakedown
officer responsible for checking for drugs and
contraband. While of-duty, he was arrested and
charged with the possession cocaine and
tampering with evidence. In lieu of a conviction,
the grievant was sentenced to three (3) years
probation. Other CO’s, as well as inmates
testified that they were aware of the grievant’s
arrest and subsequent removal and the
circumstances surrounding them. The arbitrator
determined there was a substantial relationship
between his off-duty misconduct and his job as a
CO. The arbitrator noted that the “grievant had a
duty to enforce the law and the very subject
matter of his off-duty misconduct was identical
to his job duties.” 874
The grievant admitted to giving his cell phone
number to an inmate; engaged in a phone
conversation with the inmate; and failed to report
contact with a parolee. The grievant admitted he
was aware of DR&C policies and work rules
regarding unauthorized relationships with
inmates and parolees. The arbitrator noted that
the DR&C mandates a safe and efficient
rehabilitation/corrections system for inmates,
requiring even-handed treatment, and insists on
the absence of any preferential treatment of
inmates by COs. Without expressed permission,
unauthorized relationships between a CO and an
inmate cannot exist. 875
The grievant was charged with using her fist to
strike or punch a client on her upper arm
approximately three times. The arbitrator found
the testimony of the witness to be more credible
than that of grievant. He found that the
testimony and evidence regarding grievant’s
actions supported the agency’s position that the
grievant physically abused a client, which is
against agency policy. The arbitrator noted that
Article 24.01 prohibited him from modifying or
otherwise changing the agency’s discipline once
client abuse has been established. 876
The grievant had been disciplined on three (3)
prior occasions for absenteeism. She was
charged with an unauthorized absence and
misuse of FMLA leave. The arbitrator noted that
the grievant’s prior disciplines and stated that a
fourth violation may occur to justify removal,
but the facts in this instance did not convince the
arbitrator that the employer met its burden of
proof of just cause. After receiving her
assignment, the grievant informed her supervisor
that she was sick, that her sickness was due to a
medical condition recognized under FMLA and
she wanted to go home. Her supervisor granted
her request, but ordered her to provide a
physician’s verification when she came back to
work. The employer over-stepped its bounds
when the grievant’s supervisor demanded a
physician’s verification upon the grievant’s
return to work. The arbitrator determined that “if
an employee is FMLA certified and calls off
stating FMLA, then no physician statement for
that absence can be required.” He found do
difference between an employee using a
telephone outside the institution and calling off
while at the institution. 878
The grievant was charged with striking a youth
with an open hand in the presence of other
youths. The arbitrator stated that the grievant did
not present himself well in arbitration and
displayed no regret for his actions. The
arbitrator did not find the grievant’s testimony