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oad, commonsensical guidelines about inmate
movement during counts, it is unfair to hold him
fully accountable for specific provisions in rules
where the Agency has not shown that he either
knew of the rules or had reasonable access to
them.” 890
It is the Arbitrator’s opinion based on the
evidence presented that the Grievant abused the
Inmate, and thus, the removal decision was
properly imposed. The arbitrator found that the
Grievant abused “a patient or another in the care
of custody of the State of Ohio,” and, therefore,
in accordance with Article 24.01, the Arbitrator
“does not have the authority to modify the
termination of an employee committing such
abuse.” Once an abuse finding is declared, all
other related charges, whether well-founded or
justified, are rendered moot for consideration
purposes. 891
It is the Arbitrator’s opinion based on the
evidence presented that the State cannot prove
that the Grievant acted as the Employer claimed.
It could not be concluded with any degree of
confidence that the abuse reference in Section
24.01 of the Agreement occurred. There was no
rational basis for preferring the testimony of the
sole witness over the Grievance testimony. The
arbitrator concluded that in such situations the
case of the Employer must fail. 892
It is the Arbitrator’s opinion that the employer
had just cause to remove the Grievant for
violating Standards of Employee Conduct Rule
46 (B). The Grievant was engaged in an
unauthorized personal relationship with Parolee
Young who was at the time under the custody or
supervision of the Department. The Arbitrator
also noted that evidence discovered postdischarge
is admissible as long as it does not
deal with subsequently discovered grounds for
removal. Furthermore, the Arbitrator concluded
that Article 25.08 was not violated in this
circumstance because the Union’s information
request did not meet the specificity requirement
contained in the provision. Finally, the Union
failed to plead and prove its disparate treatment
claim since it did not raise the issue at Third
Stage or Mediation Stage. 893
The Agency failed to produce even a
preponderance of evidence (more likely than not)
that the Grievant abused the Client. The Agency
produced virtually no circumstantial evidence to
support its charge in this dispute, so its case
rested entirely on witness testimony and
investigatory statements. The outcome of this
case, therefore, rested entirely on two witnesses.
Neither of the witnesses ultimately proved to be
credible. 894
The employer failed to present evidence to
support the Grievant’s removal for abuse.
Nothing in the record provides significant proof
that the Grievant was guilty as charged.
Improperly supported allegations, regardless of
the employer’s well-intentioned purpose, require
a ruling in the Grievant’s favor. Mere innuendo,
without proper support in the form of consistent
and valid evidence and testimony, will lead to
similar findings in the future. This finding was
fashioned primarily by the overwhelmingly
consistent testimony provided by the Grievant
and her co-workers. 895
The grievant was escorting a resident to the
dining room at her facility. The resident was
known to grab individuals by the shirt and throat,
falling to the floor with the individual in tow.
The grievant was suddenly grabbed by the
patient who pulled the grievant to the floor and
began choking her. There was no one in the area
to assist her. The grievant used a training
maneuver (knuckle pressure) to loosen the
patient’s grip. The action failed. The grievant
who was loosing her ability to breathe tapped the
resident on the side of his face to get him to
release her. As the episode was ending and the
resident was releasing his grip on the grievant, an
M.R. Professional came upon the situation. The
grievant was accused of abusing the resident.
Management contended that the grievant abused
the resident and there is never justification for
“slapping” a resident in the face. The agency
representative went so far as to state at
arbitration that staff are expected to die or suffer
serious injury rather than use unauthorized force
against residents. The arbitrator noted that
“neither regulation, nor contractual provision
requires the Grievant to suffer death or serious
bodily injury rather than to use unauthorized
force, as a last resort, to repel the Customer’s life
threatening attack.” The arbitrator found that the
grievant faced a life-threatening situation and
only after the unsuccessful attempt to use an
authorized technique to free herself, was forced
to strike the resident. 896
The grievant had several disciplines in his
personnel record related to attendance. The
grievant’s removal was the result of a