by Contract Number (PDF) - OCSEA

The grievant was charged with accessing
employee email accounts without authorization.
He was removed for failure of good behavior;
unauthorized use of state time/property/resources
for personal use. The Union argued that a
procedural flaw occurred in this matter in that
the disciplinary action was untimely. In its
implementation of discipline, management relied
upon a report that took 1¾ years to complete. It
was not reasonable to expect the grievant to
remember events over such a long period of
time. The Union noted that there was a
distinction between accessing an email account
and actually viewing the emails. Accessing the
accounts did not violate the grievant’s network
privileges. The employer could not prove that
the grievant did indeed view the contents of the
accounts. The grievant had a good work record
prior to the discipline. The employer did not
implement progressive discipline in this instance.
The arbitrator rejected the Union’s timeliness
objection, stating that the employer moved in a
timely manner once it was satisfied that the
grievant had violated policy. The arbitrator
noted that the employer allowed ample time for
the Union to conduct a proper investigation. The
arbitrator found that management could prove
that the grievant logged on to several accounts,
but could not prove that he actually read the
contents. Management could not prove that the
grievant used state resources for personal use or
gain. The arbitrator noted that a co-worker had
also accessed email accounts that were not his,
but he had not been disciplined. The arbitrator
stated, “If it is a serious offense to log on to
accounts other than one’s own the question
arises as to why one employee was discharged
and the other was neither discharged nor
disciplined.” The grievance was sustained. The
grievant was reinstated. He received back pay
minus any earnings he received in the interim
from other employment due to his removal. The
grievant received all seniority and pension credit
and was to be compensated for all expenditures
for health incurred that would have been covered
by state-provided insurance. All leaves balances
were restored and any reference to this incident
was ordered stricken from the grievant’s
personnel record. 924
The grievant was allegedly injured by an
unknown assailant who was attempting to enter
the building where the grievant worked. There
were no witnesses to the incident. Due to
inconsistencies in the grievant’s statements the
arbitrator found that the record did not indicate
that the grievant was injured at work. The
arbitrator found that the grievant was well aware
that he did not have leave balances accrued and
that the medical choices made by the grievant
were his own doing. Given the arbitrator’s
finding regarding the assault, the arbitrator
determined that the grievant was absent without
leave for more than four days and that he
misused/abused approved leave. The arbitrator
stated that those violations warranted removal.
The arbitrator concluded that the facts did not
support a work-related injury. He stated that
critical to his conclusion was the grievant’s
credibility. The grievant provided no evidence
to conclude that an unknown assailant injured
him. The arbitrator stated that the grievant’s
overall testimony was not believable and his
refusal to acknowledge wrongdoing negated any
mitigating factors. 925
The grievance was granted in part, denied in
part. The grievant’s removal was converted to a
7-day suspension. He received back pay minus
the 7 days and interim earnings. His benefits and
seniority were restored. The grievant was
charged with excessive force in subduing a youth
during an incident in the gym at a youth facility.
The arbitrator noted a disparity in the discipline
decisions to remove the grievant, but not to
discipline a General Activities Therapist whose
actions included dragging a youth to the floor by
his shirt. The arbitrator found that the grievant’s
actions warranted progressive discipline, but not
removal. The grievant failed to take the most
appropriate action during the incident and was
unable to timely anticipate the need to call for
assistance from other officers. The arbitrator
determined that the charge of dishonesty lacked
sufficient evidence. There was no evidence in
the grievant’s employment record to indicate that
he could not correct his actions through
additional training. The employer’s decision to
allow the grievant to continue to work for an
extended period of time following the date of the
incident indicated that the employer did not
foresee any additional problems. 926
The grievance was granted in part and denied in
part. The removal was vacated and converted to
15-day suspension without pay. Grievant to
receive back pay less 15 days and any interim
earnings. The arbitrator noted that the grievant
needed to understand that taking a youth to the
floor without provocation was a misjudgment
that should never happen again. The grievant
was charged with excessive use of force on a