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held that removal was unreasonable, but only
barely so, in light of the Grievant’s poor
judgment and his less than credible performance
on the witness stand. The primary reason for his
reinstatement is that the Grievant never intended
to harm the Youth. The Grievant was reinstated
under very strict conditions: he was entitled to
no back pay or other benefits during the period
of his separation, and he was reinstated pursuant
to a two-year probationary plan, under which he
shall violate no rule or policy involving any
youth. Failure to comply will be grounds to
remove the Grievant. 995
The Arbitrator concluded that more likely than
not the Grievant transported a cell phone into the
institution within the period in question,
violating Rule 30, by using it to photograph her
fellow officers. The Arbitrator held that the
Agency clearly had probable cause to subpoena
and search 13 months of the Grievant’s prior
cell phone records. The prospect of serious
present consequences from prior, easily
perpetrated violations supported the probable
cause. The Arbitrator held that the Grievant
violated Rule 38 by transporting the cell phone
into the institution and by using it to telephone
inmates’ relatives. The Arbitrator held that the
Grievant did not violate Rule 46(A) since the
Grievant did not have a “relationship” with the
inmates, using the restricted definition in the
language of the rule. The Arbitrator held that the
Grievant did not violate Rule 24. The Agency’s
interpretation of the rule infringed on the
Grievant’s right to develop her defenses and to
assert her constitutional rights. The mitigating
factors included: the Agency established only
two of the four charges against the Grievant; the
Grievant’s almost thirteen years of experience;
and her record of satisfactory job performance
and the absence of active discipline. However,
the balance of aggravative and mitigative factors
indicated that the Grievant deserved a heavy
dose of discipline. Just cause is not violated by
removal for a first violation of Rules 30 and 38.
1003
The Arbitrator held that there
was ample evidence that the
Grievant failed to take care of
a resident of the Ohio
Veteran’s Home. The
Grievant left the resident, who
was unable to take care of
himself, unattended for five
and one-half hours. In light of
the Grievant’s prior discipline,
the Arbitrator found the
removal to be progressive.
The Union made a procedural
objection to the use of video
evidence on a CD, because it
was not advised of the CD’s
existence until less than a week
prior to the hearing. Since the
employees and the Union are
aware that video cameras are
placed throughout the
institution, the Arbitrator ruled
that the CD could be used;
however, he reserved the right
to rule on its admissibility in
relation to the evidence. The
Union’s objection to the use of
video evidence was sustained
as to all events that occurred in
a break room. The Arbitrator
found little independent
evidence of those events and
did not consider any of that
evidence on the video in
reaching his decision. 1007
The Arbitrator found that the Grievant
told her co-worker that she was taking a
bathroom break at 6:30 a.m., left her
assigned work area, and did not return
until 7:30 a.m. This length of time was
outside the right to take bathroom
breaks, and therefore, the Grievant had
a duty to notify her supervisor. Failing
to notify the supervisor would have
given rise to a duty to notify the
grounds office supervisor who is
available 24 hours a day, 7 days a week.
The Grievant’s prior discipline record
should have put her on notice of the
seriousness of the offense.
The supervisor should have
raised the matter of the absence with the
Grievant sooner, but there was nothing
in the record to show that this failure in
any way inhibited the case presented by
the Union, or enhanced the case
presented by the Employer.
The Arbitrator held that there
was no proof that the discharge was
tainted by any claim of due process or
unfairness, when the same supervisor
conducted both the fact-finding and the
investigation. The most damaging
testimony to the Grievant was presented