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y her co-employees, not by the supervisor. The Arbitrator found that the Grievant exhibited disregard for the performance of her duties to care for the residents, a matter for which she had been amply warned on previous occasions. 1012 The Arbitrator found that the evidence and testimony clearly established that the Grievant committed numerous violations of the computer use policy on a regular basis. These included: i. installing a Palm Pilot on her work computer. j. maintaining non‐work related files on her department computer. k. accessing two non‐departmental email accounts from her computer l. using the computer to actively access shopping sites The Arbitrator rejected the charge of insubordination. The Arbitrator held that “dishonesty” was not a proper charge. It implies serious misconduct where an employee’s motive is often to obtain pay that he/she is not entitled to receive. The Grievant’s timesheets suggest that she simply recorded her regular starting, lunch, and ending times regardless of the actual times and none involved a claim for extra compensation. Furthermore, all the timesheets were approved by her supervisor. The prior five-day suspension for computer misuse suggests that the Grievant was familiar with the computer use policy and knew that further discipline would result from continued computer misuse. It also indicates that she failed to take advantage of the opportunity to correct her behavior. Despite the Grievant’s 13 years of state service, the Arbitrator held that the state had the right to remove her. The Grievant’s extensive violations of the computer use policy combined with the other less serious offenses support the state’s actions. Her prior five-day suspension for computer misuse removes any doubt that the state acted pursuant to its contractual authority. 1016 While on a hunting trip and staying in Mt. Vernon, the Grievant was arrested for operating a vehicle while impaired. The Grievant became very belligerent and verbally abusive. A newspaper report regarding the incident was later published in Mt. Vernon. The Arbitrator held that the Employer had just cause to remove the Grievant. The Arbitrator was unwilling to give the Grievant a chance to establish that he was rehabilitated. Some actions or misconduct are so egregious that they amount to malum in se acts--acts which any reasonable person should know, if engaged in, will result in termination for a first offense. Progressive discipline principles do not apply in these situations and should not be expected. The Employer established a nexus for the off-duty misconduct. The Grievant’s behavior harmed the reputation of the Employer. It would be difficult or impossible to supervise inmates who may find out about the charges and their circumstances. This would potentially place other officers in jeopardy; an outcome the Arbitrator was unwilling to risk. 1025 The Arbitrator held that the Employer had just cause to terminate the Grievant. The Grievant’s disciplinary record exhibited several progressive attempts to modify his behavior, with the hope that progressive penalties for the same offense might lead to positive performance outcomes. As such, the Grievant was placed on clear notice that continued identical misconduct would lead to removal. The Arbitrator also held that the record did not reflect any attempt to initiate having the Grievant enroll in an EAP program within five days of the pre-disciplinary meeting or prior to the imposition of discipline, whichever is later. This barred any attempts at mitigation. 1030 The Grievant had entered into a Last Chance Agreement with the agency. She then violated the Corrective Action Standard, AWOL—No approved request for leave. The Arbitrator held that the Last Chance Agreement was fair, just, and reasonable. The Grievant
was knowledgeable of the corrective action standard and there was no evidence showing that those corrective action standards were not published or selectively used rather than evenhandedly applied. The Arbitrator found that the Grievant’s excuse for the absence lacked corroboration in any manner or respect. The Arbitrator reminded the parties that if a termination is based upon a Last Chance Agreement the just cause provisions may not apply, but rather the application is under the Last Chance Agreement. 1031 The Arbitrator found that the Grievant was removed without just cause. Management did not satisfy its burden of proving that he acted outside the Response to Resistance Continuum and engaged in the conduct for which he was removed. The Youth’s level of resistance was identified as combative resistance. The Grievant’s response was an emergency defense, which he had utilitized one week earlier with the same Youth and without disciplinary action by Management. A fundamental element of just cause is notice. Management cannot discharge for a technique where no discipline was issued earlier. In addition there was no self-defense tactic taught for the situation the Grievant found himself in. 1032 The Arbitrator held that BWC had just cause for removing the Grievant, since the Grievant was either unwilling or unable to conform to her employer’s reasonable expectation that she be awake and alert while on duty. The agency and the Grievant had entered into a settlement agreement, wherein the Grievant agreed to participate in a 180-day EAP. However, the Arbitrator found that the sleeping while on duty was a chronic problem which neither discipline or the EAP had been able to correct. The Grievant raised the fact that she had a common aging problem with dry eyes and was taking a drug that made the condition worse. However, she never disclosed to the supervisor her need to medicate her eyes. The Arbitrator held that this defense amounted to post hoc rationalization and couldn’t be credited. The Arbitrator felt that a person on a lastchance agreement for sleeping at work and who had been interviewed for an alleged sleeping infraction would take the precaution of either letting her supervisor know in advance about this treatment, take the treatment while on break and away from her work area, or get a witness. 1033 The Arbitrator found that Management satisfied its burden of proving that the Grievant failed to maintain the close supervision for one patient and one-onone supervision for another patient. The Grievant chose to work without adequate sleep, rather than to seek leave, and her choice placed the residents in her supervision, and the Center at risk. However, Management had created an arbitrary distinction in supervision cases arising from sleeping on duty. The Union established that other similarly situated employees received suspensions and/or other disciplinary action far short of removal for similar conduct. Therefore, the Arbitrator held that discipline was warranted, but the removal was without just cause. 1037 The Arbitrator held that despite the Grievants 19 ½ years of service, her extension of her break, and more importantly, her dishonesty in the subsequent investigation, following closely her ten-day suspension for insubordination, gave him no alternative, but to deny the grievance and uphold the removal. The Arbitrator rejected the argument that the removal was inconsistent with progressive discipline because dishonesty and insubordination are different offenses. The Arbitrator found this contention contrary to the accepted view of Arbitrators regarding progressive discipline. Also, the agency policy stated that “discipline does not have to be for like offenses to be progressive.” 1040
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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
Page 15 and 16:
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
Page 21 and 22:
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
Page 31 and 32:
an educated guess, the grievance mu
Page 33 and 34:
2. The Agreement also designates th
Page 35 and 36:
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
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judgment and his less than credible
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employees and the Union are aware t
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once the Youth was on the ground. C
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enroll in an EAP program within fiv
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The parties did not intend that pre
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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 and 134: The grievant was involved in a resp
Page 135 and 136: with sleep apnea and begun treatmen
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: held that removal was unreasonable,
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
Page 185 and 186: employee in her right to bring a gr
Page 187 and 188: 26, 1994. The language of Contract
Page 189 and 190: y the grievant, would be compensabl
Page 191 and 192: committed other acts of neglect of
Page 193 and 194: filed a grievance arguing that assi
Page 195 and 196: 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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