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confrontation with a resident. The confrontation
ended with the grievant swinging a frame from a
shirt hamper and damaging a ceiling tile. The
arbitrator stated such behavior violated the
employer’s work rules and that the grievant had
been trained in those rules. However, the Union
presented evidence that another employee at the
facility had compiled a record of several
incidents of workplace violence. He remained
employed at the facility. The arbitrator noted an
element of disparate treatment and overturned
the removal. 898
The employer bears the burden of proof to
demonstrate that Collins’ removal from his
position for violation of ODJFS Rule F2 was for
just cause in compliance with CBA Article 24.
Rule F2 prohibits false, abusive, inflammatory,
or obscene statements or gestures by any
employee of ODJFS. Additionally, the
discipline must be commensurate with the
offense and not solely for punishment; it must be
for “just cause”; it must follow the principles of
progressive discipline; and it must not be
disparate in nature. Here, the Union cited
McDaniel v. Princeton City Schools Board of
Education (45 Fed. Appx. 354: 2002 U.S. App.
LEXIS 16713), but the Arbitrator found that the
Union’s reliance on McDaniel was misplaced. In
contrast to McDaniel, the reasons for Collins’
removal remains the same, and no new
additional charges were added stating that
Collins did not have an opportunity to present
full evidence surrounding the event. Only the
charge classification was altered. Also unlike
McDaniel, Collins had an opportunity to respond
to all of the conduct that brought him to the predisciplinary
hearing. Furthermore, the arbitrator
held that the Union’s procedural argument still
does not successfully show a violation of
Collins’ procedural rights based on Cleveland
Brd. Of Educ. v. Loudermill, 470 U.S. 532, 547-
48 (1985). The Arbitrator found that the
employer did not act arbitrarily or capriciously
because the Grievant’s one email was
inflammatory and borderline abusive, and his
other “aggressive” emails occurred on the
employer’s nickel as well. The language in
Article 24.02 does not require nor is it intended
for absolute adherence. The principles of
aggressive discipline allow for leeway.
Finally, under proper circumstances Collins
would be entitled to mitigation; however, the
facts of this case warrant no mitigation. Collins
engaged in repeated offenses and made no effort
to modify his behavior in response to progressive
discipline, with understanding that his ‘active’
discipline would have a grave impact on future
violations. The Union could not argue that
Collins as a long-term employee had a good
work record without any active discipline.
Furthermore, as a long-term employee, Collins
was clearly aware that his position required
public trust and confidence. 899
The grievant was charged with submitting a false
expense report. The arbitrator found the
evidence overwhelming convincing that he was
removed for just case. The grievant was unable
to present any evidence to support his position.
Hr admitted that he did not attend a scheduled
meeting as he had indicated on his expense
report. The arbitrator stated that the grievant’s
account of what occurred on his alleged trip
included premises his could not support with any
evidence. The arbitrator found that the grievant
submitted false expense reports. The
disciplinary grid for the agency included removal
as a penalty for this violation for a first offense.
Although the grievant was a decorated veteran of
the USAF and a good employee, the arbitrator
noted that he made a series of mistakes which
justify his removal. 901
The grievant was charged with allegedly
submitting false documents about his work
history to an outside certification institute,
forging an ODOT employee’s initials on the
paperwork. These actions resulted in an award
of certification by the outside institute to the
grievant which he used in an effort to obtain a
promotion. The arbitrator found that the grievant
was less than honest with co-workers who were
assisting him in obtaining certification. It was
problematic for the arbitrator that the grievant
rejected responsibility for his actions which led
to the removal. The arbitrator noted that the
record contained a series of events that were not
minor and covered an extensive period of time.
Those actions outweighed length of service as a
mitigating factor. The arbitrator also noted that
the grievant had a fiduciary position as a PS II
and his conduct demonstrated dishonesty and a
manipulative approach for personal gain that
warrants removal. 902
During her brief employment with the State of
Ohio, the grievant accumulated a number of
disciplines: an oral reprimand, a written
reprimand, a three-day suspension and a five-day
suspension. Violations included misplaced files,
incomplete claims and claims which were
processed improperly. The employer had been