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prohibitions against abuse and use of excessive force. 955 When the Grievant organized, planned, and promoted a work stoppage she violated Rule 30B. The Arbitrator believed she developed the plan and solicited the participation of other employees. When the grievant organized a work stoppage in the face of an approaching winter storm, she engaged in “action that could harm or potentially harm . . . a member of the general public” and violated Rule 26. Grievant violated Rule 4 by interfering with the investigation of the work stoppage. Testimony from other witnesses showed that the grievant was not truthful in her accounts of the events. The Arbitrator believed the state conducted a full and fair investigation. The Arbitrator did not believe the grievant was the object of disparate treatment. Leaders of work actions are identified and discharged, while employees playing a lesser role receive less severe penalties. The Arbitrator did not believe the state failed to use progressive discipline. In the case of very serious misconduct an employer is not required to follow the usual sequence of increasingly severe discipline. Mitigating factors of long service, good evaluations, and behaving in a professional manner in her work as a union steward did not offset the seriousness of the Grievant’s misconduct. The Arbitrator concluded that when the Grievant organized a work stoppage in the face of major winter storm she provided the state with just cause for her discharge. 956 The grievance was granted in part and denied in part. The grievant must enroll in and successfully complete an EAP program associated with anger management. The grievant was required to enroll in the program no later than thirty days from the date of the award. Failure to enroll would be grounds for removal. The grievant was reinstated with all applicable seniority rights within thirty days of the award. The discipline was reduced to a two-day fine. The grievant received no back pay. The grievant was a Correction Officer charged with threatening an inmate. The arbitrator found that the grievant’s conduct warranted discipline; however, the Union demonstrated that a coworker who previously committed a similar offense was treated differently. The employer offered no explanation for the disparate treatment. The removal was ruled excessive and the grievant was reinstated. 957 The grievant was a TPW working third shift at a group home. When he arrived at work he was told that a resident was found with knives and Tylenol. He was instructed to position himself so he could visually monitor the resident. Coworkers testified that they saw the grievant sleeping while on duty. They also testified that the grievant was not in a physical position to see the resident if he were on the stairs. During his shift the grievant placed three telephone calls to the supervising nurse at home. He was allegedly rude and disrespectful each time he called. The arbitrator found that the grievant’s removal was just. In addition to his rude behavior the grievant had previously been given a verbal warning and two (2) five-day working suspensions for similar offenses within his four years of employment. 958 The central question was whether the Grievant lost control of security keys to an inmate through no fault of his own. The Arbitrator felt that the Grievant used poor judgment in holding the keys in front of an inmate and letting him take them without protest. The Grievant’s actions afterward suggested he knew he had made a mistake and was trying to cover it up. These were not actions in-and-of-themselves warranting termination; however, a proven act of misconduct must be viewed in context. This was the Grievant’s sixth performance related misconduct in his less than two years service and he was on a Last Chance Agreement strictly limiting an arbitrator’s authority to that of reviewing whether he violated the Last Chance Agreement and/or the rule. When he violated the rule he broke the Last Chance Agreement and the Employer had the right to terminate his employment. The grievance was denied in its entirety. 961 The grievance was sustained in part and denied in part. The discharge was to be converted to a thirty (30) day suspension without pay. The Grievant was to be restored to employment with all back pay and benefits, less the thirty day suspension. The restoration to employment was to be regarded as a “last chance.” Further instances of discipline, if not overturned or modified in the grievance procedure of the parties, would result in her discharge. Neither the Employer nor the Union were entirely right or wrong in the case. The Grievant’s discipline did not stand in isolation. She had 29+ years of service with the state with a satisfactory record until 2004. In addition, she had been diagnosed
with sleep apnea and begun treatment. Under the circumstances her discharge could not stand. The Employer acted properly in administering progressive discipline to the Grievant; on the other hand, the Grievant was ill. Because she had called-off the two days prior to the day in question she had a reasonable belief, albeit erroneous, that the Employer knew she would not report. As a veteran of many years of service she should have known that she should call in. She had been subject to recent and increasingly serious discipline. Therefore a make-whole remedy could not be adopted. 964 The Arbitrator held that the discipline was for just cause and was not excessive. TPW’s are required to report any incident of known or suspected abuse they observe or become aware of, to ensure that a proper and timely response occurs, while considering the unique circumstances of each client. The Grievant had a duty to report and did not comply. Three incidents were not timely reported on a UIR, but were disclosed by the Grievant during an official investigation by CDC’s Police Department into alleged abuse. The Grievant admitted a UIR was incomplete, but attempted to justify his actions by alleging that: a.) he had been employed only seven months; b.) he did not want to be viewed as a “snitch” among his peers; c.) he has a passive personality; d.) he was concerned other TPWs might retaliate against him; and e.) an unwritten “code of silence” was used by his coworkers which encouraged TPWs not to report unusual conduct. The Arbitrator determined that the Grievant’s overall testimony was not credible and believable. This was buttressed by the Grievant’s failure to provide any specific facts or verifiable supportive evidence to support claims that alleged abuse, unknown to CDC, occurred during his employment. An affirmative defense of disparate treatment could not be supported. Evidence offered was insufficient for a finding that the behavior of one employee and the Grievant’s behavior were closely aligned or that another employee’s behavior was similarly situated as the Grievant. 965 The grievant was reinstated with all applicable seniority within thirty (30) days of the award. The discipline for violating Rule 3(G)–leaving the work area without authorization was a fiveday fine. The grievant received thirty (30) days back pay, but no other benefits. The grievant was accused of failing to follow post orders and interfering with an official investigation. He allegedly improperly stored a large package brought in by a visitor to the institution and he left his post to go to a unit where he was seen having an unauthorized conversation with an inmate. Prior to the grievant’s removal he received a two-day fine for a rule violation that the employer then included in its basis for the removal. The Union argued that the employer subjected the grievant to double jeopardy because the charges resulting in the fine were also included in the charges for which the grievant was removed. The arbitrator found that “the conduct of the Grievant in violation of Rules 3(G) and 24, became intertwined in the investigation and was never separated during the disciplinary process to establish the division required in maintaining the disciplinary grids regarding attendance and performance offenses argued by the Employer.” The arbitrator found the investigatory interview was flawed in that there was no difference in the questions for each specific violation. The arbitrator found that the grievant did violate the work rule regarding visiting an inmate in the segregation area without authorization. 966 In accordance with Section 24.01 the Arbitrator found the Grievant abused another in the care and custody of the State of Ohio. The force used by the Grievant was excessive and unjustified under the circumstances. The inmate’s documented injuries were a direct result of the Grievant’s actions. The Grievant admitted the entire situation could have been avoided if he had walked toward the crash gate and asked for assistance. Since abuse was found, the Arbitrator did not have the authority to modify the termination. This provision precluded the Arbitrator from reviewing the reasonableness of the imposed penalty by applying mitigating factors. 967 The Grievant was indicted on criminal charges, but entered an Alford plea to the lesser charges of criminal Assault and Falsification. As part of the Alford plea Grievant agreed not to work in an environment with juveniles, which precluded his being reinstated at Scioto. The Union subsequently modified the Grievance to exclude the demand for the Grievant’s reinstatement and that he only sought monetary relief and a clean record. The Arbitrator was not persuaded that there was clear and convincing evidence that the Grievant used excessive force against the Youth. The Arbitrator held that for constitutional purposes an Alford Plea was equivalent to a
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INDEX BY CONTRACT SECTION ARTICLE 1
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this case, one cannot conclude that
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Muskingum Counties that were consol
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in Article 24.04 as a meeting. The
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Article 2.01 requires that neither
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The Arbitrator found that when the
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hardship when an employee was on Un
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determined that through Article 5,
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The grievant had a thirty-day time
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Management established a list of in
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the FR clothing during these five m
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11.11 - Concern for Pregnancy Hazar
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of the contract occurred. Based upo
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“In paragraph 3…the word “win
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overtime. The arbitrator found that
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an educated guess, the grievance mu
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2. The Agreement also designates th
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which this particular agreement did
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In this case the Union grieved that
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Arbitrator held that the Grievant f
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when he was placed back into his fo
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selected because she was within ten
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she was in Section 17.04 applicant
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for a new DCS Assessment. The union
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won is not sufficient to prove incr
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Ohio Revised Code 145.298 requires
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18.04 (formerly Article 18.03 of 19
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establishes that the just cause sta
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suspension would be excessive and u
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employee cannot be on “notice”
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grievant was a nine-year employee w
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not lead to the conclusion that the
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grievant’s allegation that the si
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etween the grievant and his supervi
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her car on state property and she p
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The Employer had just cause to remo
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The employer had just cause to remo
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a period of about 10-15 minutes whe
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commodities was completely lacking
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answer questions, even after the De
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offenders. The incident was recorde
Page 83 and 84: judgment and his less than credible
Page 85 and 86: employees and the Union are aware t
Page 87 and 88: once the Youth was on the ground. C
Page 89 and 90: enroll in an EAP program within fiv
Page 91 and 92: The parties did not intend that pre
Page 93 and 94: progressive and commensurate discip
Page 95 and 96: Bureau of Employment Services, had
Page 97 and 98: jurisdiction to resolve differences
Page 99 and 100: language toward a number of inmates
Page 101 and 102: a motor vehicle with an inoperative
Page 103 and 104: The grievant was removed for allege
Page 105 and 106: her work. The arbitrator stated tha
Page 107 and 108: meeting. The evidence also suggeste
Page 109 and 110: egarding IME’s within ODNR. The a
Page 111 and 112: individual under the supervision of
Page 113 and 114: arbitrator noted that if the behavi
Page 115 and 116: particularly in light of layoffs, b
Page 117 and 118: “extraordinarily patient with the
Page 119 and 120: and he had remained in contact with
Page 121 and 122: credible. Evidence presented indica
Page 123 and 124: oad, commonsensical guidelines abou
Page 125 and 126: aware of the grievant’s poor work
Page 127 and 128: procedural error. He found that whe
Page 129 and 130: youth at his facility. The evidence
Page 131 and 132: COs were aiding in investigations a
Page 133: The grievant was involved in a resp
Page 137 and 138: that he would have accrued during t
Page 139 and 140: years of state service. The arbitra
Page 141 and 142: workers who were aware of the condu
Page 143 and 144: criminal Assault and Falsification.
Page 145 and 146: held that removal was unreasonable,
Page 147 and 148: was knowledgeable of the corrective
Page 149 and 150: 24.04 - Pre-Discipline supervisor.
Page 151 and 152: equire support before one can estab
Page 153 and 154: is considered when fashioning a rem
Page 155 and 156: The grievant was an investigator wi
Page 157 and 158: egarding the conduct of a superviso
Page 159 and 160: The grievant was a Corrections Offi
Page 161 and 162: considered the grievant’s guilty
Page 163 and 164: 24.05. The Arbitrator agreed with t
Page 165 and 166: The grievant was reinstated to her
Page 167 and 168: consider that the co-worker may hav
Page 169 and 170: grievant’s removal was upheld, an
Page 171 and 172: once the Youth was on the ground. C
Page 173 and 174: undermines the purpose of the EAP p
Page 175 and 176: exercised its discretion in an arbi
Page 177 and 178: the possible violation was not brou
Page 179 and 180: irrelevant for the purpose of calcu
Page 181 and 182: grievance was held arbitrable, (the
Page 183 and 184: prohibited from using the grievance
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employee in her right to bring a gr
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26, 1994. The language of Contract
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y the grievant, would be compensabl
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committed other acts of neglect of
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filed a grievance arguing that assi
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guarantee that a document has suffi
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25.08 because the union made excess
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26.03 Work on Holidays No dispute e
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ARTICLE 28 - VACATIONS 28.01 - Rate
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contains various interventions and
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comported entirely with her initial
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ARTICLE 32 - TRAVEL 32.02 - Persona
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ARTICLE 36 - WAGES 36.02 - General
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37.04 - In-Service Training Under 3
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arbitrator found the grievance arbi
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43.03 - Mid-Term Contractual Change
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permanent part-time employees earn
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she was evaluated below average in
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“similar or related series” as
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