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exercise its “comment, refute or rebut” prerogatives. 192 Where the grievant had never been confronted with a certain allegation until the arbitration phase, the arbitrator found that it was a due process shortcoming in violation of 24.04 which justifies a modification of the penalty meted out on the earlier charges: 211 The arbitrator found the removal order defective where it contained different particular violations than the pre-disciplinary hearing notice. The latter document referred to one insubordinate event but the removal order referred to several. This circumstance failed to provide the grievant with proper and timely notice as required by 24.01 and 24.04. This may have prevented a full and exact defense of the entire episode. 220 Section 24.04 was violated where the grievant was never specifically informed that his actions (refusal to obey an order on the basis of a claim that working conditions were unsafe) amounted to a malum in se offense. This arbitrator disagrees because the nature of this specific insubordinate offense differs significantly from the “obey now – grieve later” situation. (Note that in this case the arbitrator did find that the grievant should have obeyed the order because a reasonable person would not have believed the working conditions unsafe). 220 Being informed both as to the charge and the possible form of discipline is a right guaranteed by the collective bargaining agreement (24.04). The arbitrator found that this right was violated where (1) the possible form of discipline was not specified in either the notice of investigation or the notice of predisciplinary conference (2) the established practice was to issue suspensions for sleeping on duty, even where the offender had 2 previous violations, (3) No one knows when the new rule which specifies removal for sleeping on duty took effect. 227 The employer violated 24.04 by failing to specify in writing the contemplated forms of discipline. 227 24.04 requires the employer to provide a list of witnesses no later than at the pre-discipline. 230 24.04 does not require the Employer to supply union requested witnesses prior to the grievance procedure. 230 Section 24.04 does not require the Employer to communicate “the” form of discipline but “the possible” form of discipline. An interpretation which required the employer to state the actual discipline on the pre-disciplinary notice would tend to chill the pre-disciplinary hearing process because it could preclude a penalty modification at a fact finding stage. This option was not contemplated by the parties, as evidenced by the contract language. Of course, any modification needs to be within certain reasonable parameters based upon the circumstances. Although labormanagement discussions surrounding this issue are laudable, they cannot usurp specific language negotiated by the parties. 241 Section 24.04 was not violated when the employer escalated the penalty after the employee had been informed of the possible penalty. 24.04 requires that the employer inform the employee or the employee’s representative of the “possible” form of discipline. It does not require the employer to specify “the discipline.” 246 The employer failed to give notice before the predisciplinary conference of what the possible discipline would be. The notice of the predisciplinary meeting only referred to the notice of investigation which referred to a rule which did not specify the possible discipline. The first mention of removal was 8 weeks after the incident, 2 ½ weeks after the decision to remove was made, and one day before the removal took effect. The violation was intentional because management was afraid it could not replace the grievant. That is no excuse for the employer’s violation of the contractual requirement that the grievant be notified of the possible discipline. 255 Section 24.04 was violated by untimeliness in holding the pre-disciplinary meeting where the meeting was not held until a month after the incident, despite the fact that the violation was unequivocal. 255 To prove that §24.04 was violated by denying union representation, evidence must be given as to which meetings were unattended, whether grievant requested the presence of a Union Steward, and whether she had reasonable grounds to believe that the interview would be used to support a disciplinary action. These particulars were negotiated by the parties and
equire support before one can establish that a procedural defect has indeed occurred. 257 Where the employer was not aware at the time of the pre-disciplinary meeting of certain items that would be used as employer exhibits at arbitration, the employer did not violate 24.04 by failing to provide those items at the time of the pre-disciplinary meeting. 257 The employer was found to have violated §24.04 by denying the grievant of his right to union representation by issuing a notice of investigation at a time when there was no union representative on the site stating that the grievant would be disciplined if he did not complete a written statement. However, the arbitrator did not modify the grievant’s discipline because there was no indication that the employer’s violation was deliberate and no prejudice to the grievant resulted. 260 Sections 24.04 and 25.08 were not violated when the employer failed to provide the work product of the security force investigation until just before the arbitration hearing. The security force did not release the information to the employer until that time which was when it determined that criminal and/or civil proceedings were no longer contemplated. Management requested the work product but was refused. Thus, management neither relied on the documents at issue, nor were they reasonably available. Management is allowed to rely on the documents at arbitration because the union introduced them into evidence. The bifurcated investigation procedure is reasonable on its face since collateral investigations cannot be made the basis for discipline but can only be used as supporting evidence. 263 The employer violated §24.04 by failing to give notice, prior to the pre-disciplinary meeting, that the grievant might be removed for sleeping on duty. The rules under which he was disciplined were not clear on this point. The pre-disciplinary notice only stated that the grievant would be subject to discipline. The employer’s past disciplinary practices indicated that a suspension would be imposed. All these factors operated together to deprive the grievant of notice that his job was in danger. 276 If the hearing is held at a jail to accommodate an imprisoned grievant, the hearing is not procedurally defective. 279 Fair interpretation of Article 24.04 dealing with providing documents seems to prescribe that the Union is to be provided with the actual documents. 291 The Pre-disciplinary hearing officer does not have to play a neutral role. The fact at the Inspector promised that the inmate would be protected does not prove that the inmate witness was coerced into false testimony. 291 Fair interpretation of Section 24.04 would prescribe that Management must provide the actual documents to the Union. The employer technically violated this contractual duty but there is no indication that the Union or the grievant suffered harm as a result. The delay of the first hearing day and the fact that the predisciplinary proceedings encompassed ten days cured any substantive impact of the employer’s failure to follow the Agreement. Even though the employer violated the Agreement, there was substantial compliance with the disclosure rules and the grievant was not denied due process. 292 An inadequacy in the initial investigation can be subsequently wiped clean by a full and fair opportunity to present all existing evidence on the grievant’s behalf. In this case the grievant was afforded a full-blown disciplinary hearing prior to the final decision of removal. He was given a full opportunity to tell his side of story and was fully aware of the seriousness of the situation prior to the hearing. There was no showing of prejudice to the grievant’s case. 298 When the employer sought to admit photographs taken of the alleged victim, the Union objected on the grounds that they had not been provided at the predisciplinary or Step 3 meetings. There is no evidence that the employer deliberately suppressed this evidence as, for example, keeping secret their existence or refusing a request by the Union to see them. The photographs do not establish a new fact, but merely corroborate the statements of several witnesses – including a Union witness that the youth had marks on his face. The arbitrator therefore found no undue hardship in admitting and crediting the evidence of the photographs. 300 The Union protested that the State did not produce witnesses that the Union considered important to its case. This protest was dismissed
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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
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an educated guess, the grievance mu
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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
Page 45 and 46:
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
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Bureau of Employment Services, had
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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 and 146: held that removal was unreasonable,
Page 147 and 148: was knowledgeable of the corrective
Page 149: 24.04 - Pre-Discipline supervisor.
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
Page 197 and 198: 25.08 because the union made excess
Page 199 and 200: 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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