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credible. Evidence presented indicated that the
grievant initiated the confrontation with the
youth when he grabbed the youth’s shirt. After
intervention by two co-workers, the grievant
struck the youth in the face. Although the
grievant had recent favorable performance
evaluations, the employer pointed out that the
grievant had been suspended for various reasons
eleven times in twenty-six years. The arbitrator
found no mitigating factors to overrule the
actions taken by employer in this case. 879
The grievant, a TPW with 12 ½ years of service,
no active disciplines and satisfactory evaluations
was removed from his position for leaving a
client alone in a restroom. The client was under
an “arms length”, “one-on-one supervision”
order. The client was discovered on the restroom
floor by the grievant who did not report the
incident. The arbitrator stated that the
employer’s definition of client neglect was twofold.
First, there must be a failure to act.
Second, the failure to act must result in, or cause
“potential or actual harm.” The arbitrator found
that the grievant failed to act when he allowed
the client to enter the restroom alone; however,
there was no evidence to establish “causal link”
to the client’s injuries. The arbitrator determined
that the grievant’s neglect exposed the client to
potential harm and that his act of neglect was
more than simply poor judgment. The arbitrator
found that the mitigating and aggravating
circumstances did not outweigh the severity of
the violations allegedly committed by the
grievant. 880
The grievant had four active disciplines in her
records – a two-day suspension (falsifying
reports), a five-day suspension (inefficiency and
making false statements, a written reprimand
(AWOL) and an oral reprimand (failure to follow
policy). The grievant accumulated four
disciplines, including two suspensions, during
approximately five years of service. The
disciplines did not change her behavior. She was
removed from her position for the use of vulgar
and abusive language in two separate incidents
occurring one week apart. The arbitrator found
that “the state did not have to continue to employ
a person who repeatedly violates the standards of
employee conduct.” 881
The grievant was charged with failing to act as
required by the resident’s “full code” status. She
did not administer CPR; she also did not
intervene when the RN present failed to do so.
The arbitrator stated that a licensed practical
nurse accepting and maintaining employment in
the profession has to be presumed to be informed
on the duties and responsibilities of her
profession. The grievants 2½ years of service
was no excuse for failing to clarify with the RN
that the resident was full code and then take the
necessary steps if the RN was non-responsive.
The arbitrator noted that aside from the facts of
the case, since her termination, the grievant had
held other employment as an LPN and the Ohio
Board of Nursing had not – by the time of
arbitration – pulled her license. Removal was
not unreasonable.882
The grievant was removed from his position for
being absent without proper authorization and
job abandonment. The grievant had two active
disciplines at the time of his removal – a one-day
fine and a two-day fine. Both fines were for
absence without proper authorization. At the
time of removal, the grievant had no sick,
vacation or personal time available. After
exhausting his FMLA leave, the grievant was
advised to return to work, which he failed to do.
The arbitrator concluded that the grievant at least
implied that he was abandoning his job by not
giving proper notification. The arbitrator noted,
“…one could reasonably conclude that the
Grievant made either a conscious or an
unconscious decision to focus on health related
problems and to place his job on the “back
burner”.” The arbitrator found that the grievant
was in almost continual AWOL status without
providing proper notification and the employer
provided testimony that it encountered undue
hardship due to the grievant’s absences. The
arbitrator was sympathetic to the grievant’s
situation with a sick parent, however, it was
noted that he showed little concern for his job.
The employer’s decision to remove the grievant
was neither arbitrary nor capricious. 883
The grievant was charged with an unauthorized
relationship with an inmate. The former inmate,
who was not under the supervision of the State at
the time of the arbitration, did not attend the
hearing and could not be located. The arbitrator
listened to six selected taped telephone calls and
determined that the voice she heard was that of
the grievant; and, that she did in deed have a
personal relationship with the former inmate.
The arbitrator found that the affidavits presented
by the grievant did not place the grievant
somewhere else at the time of the calls. The
grievant only presented denials and testimony of