by Contract Number (PDF) - OCSEA

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
guilty plea; however, for the purposes of
arbitration the Grievant’s Alford Plea did not
establish that the Grievant used excessive force.
In addition, the Arbitrator held that the Grievant
did not violate any duty to report the use of
force. The Grievant did have a clear and present
duty to submit statements from youth when
requested and violated Rule 3.8 and 5.1 when
refusing to do so. The Arbitrator found that the
termination of the Grievant was unreasonable.
Under ordinary circumstances he would have
reinstated the Grievant without back pay, but
reinstatement could not occur due to the Alford
plea. However, because of the number of
violations and the defiant nature of his
misconduct, the Grievant was not entitled to any
monetary or non-monetary employment benefits.
The grievance was denied. 968
The grievance was sustained in part and denied
in part. The grievant was reinstated without back
pay. However, his seniority was left intact. The
grievant was not awarded any other benefit the
interim of his removal. The grievant was
charged with pushing and attempting to choke a
youth inmate. The arbitrator found that the
grievant used inappropriate force against the
youth on three occasions. However, the removal
was unreasonable in light of the grievant’s
seventeen years of service and his discipline-free
record. The arbitrator stated that a “healthy dose
of discipline was clearly warranted to impress
upon the grievant and any other JCOs of like
mind “ that such behavior is unsatisfactory. 971
The grievance was sustained in part and denied
in part. The Grievant’s removal was reduced to
a three-month (3-month) suspension. The
Agency was entitled to deduct from any back
pay owed to the Grievant any and all wages he
either did or could have earned with due
diligence and a good-faith effort to secure
alternative employment. The Grievant was
entitled to Roll Call Pay, Shift Differential, and
Holiday Premium Pay. He received overtime
pay for any overtime that he could prove he
normally would have worked based on his
historical work record. He received any
Vacation Leave, Sick Leave, and Personal Leave
that he would have accrued during the
reinstatement period. Any leaves the Grievant
had on the books and cashed out were restored to
his balances. The Agency compensated the
Grievant for any medical or dental costs he
incurred during the reinstatement and for which
he was not otherwise compensated. The
Arbitrator held that the Agency failed to
establish by preponderant evidence that the
Grievant engaged in either sexual activity or
sexual contact with a Youth. In addition,
preponderant evidence in the record did not
establish that the Grievant violated Rule 6.1,
Rule 3.1, Rule 3.9, and 4.10. The Arbitrator
concluded that the Youth was less credible than
the Grievant. The Grievant’s refusal to submit to
a polygraph test did not establish his guilt. The
slight probative value of polygraphic
examinations disqualifies them as independent
evidence and relegates them to mere
corroborative roles. Because the Agency
established the Grievant’s failure to cooperate
under Rule 3.8, some discipline was indicated.
The strongest mitigative factor was the
Grievant’s satisfactory and discipline-free work
record. The major aggravative factor was the
Grievant’s dismissive attitude toward the
Agency’s administrative investigation. 972
The Grievant admitted that he failed to make all
of the required 30-minute hallway checks and a
2:00 a.m. headcount and then made entries in the
unit log indicating he had done so. The
Arbitrator held that just cause existed for
discipline. Since the Grievant committed a
serious offense less than two years after being
suspended for six days for the same offense, the
Arbitrator held that the principles of progressive
discipline had been followed. In addition, the
Arbitrator held that long service cannot excuse
serious and repeated misconduct. It could be
argued that an employee with long service
should have understood the importance of the
hallway checks and headcount more than a less
senior employee. The Union argued that since
the Grievant was not put on administrative leave,
it suggested that his offense was not regarded as
serious. The employer, however, reserved the
use of administrative leave for cases where an
employee is accused of abuse. The Union also
argued that the time it took to discipline the