by Contract Number (PDF) - OCSEA

grievant was an experienced Correction Officer
and well-versed in the detection of contraband
which was evidenced by his numerous
commendations. The arbitrator found that he
grievant made a judgment when he found the
metal blanks and placed them in a secured
receptacle. Although the grievant’s decision
may have been erroneous, the arbitrator noted
that there are no precise definitions for “hot
trash” versus contraband. In his decision, the
arbitrator stated, “As ambiguity exists
concerning the treatment of contraband found by
Officers discharge for disposing of the metal
blanks rather than reporting them is
inappropriate.” The grievant’s removal was
reduced to a written warning for failure to report
contraband. All references to his discharge were
to be stricken from his personnel record. Back
pay was made at straight time minus any interim
earnings. 914
The Arbitrator held that to sustain a charge of
threatening another employee an employer must
have clear and convincing proof. Here the proof
did not even rise to the preponderance standard,
being based solely on the report of the co-worker
allegedly threatened, who had a deteriorated
relationship with the Grievant since the events of
a prior discipline. The investigator did not
consider that the co-worker may have
exaggerated or over-reacted. Management’s
handwritten notes were held to be discoverable
under Article 25.09. It had refused to produce
them until after the grievance was filed and then
had to be transcribed for clarity, which delayed
the arbitration. The investigator breached the just
cause due process requirement for a fair and
objective investigation which requires that
whoever conducts the investigation do so
looking for exculpatory evidence as well as
evidence of guilt. Then, to make matters worse,
the same investigator served as the third step
hearing officer, essentially reviewing his own
pre-formed opinion. 985
The Arbitrator found nothing in the record to
support the falsification charge. The
administration and interpretation of the Hours of
Work/Time Accounting Policy were
inconsistent. The policy in no way restricts an
employee’s ability to supplement an approved
leave and lunch with an afternoon break. The
Employer admitted violating Article 24.04 by
failing to inform the Union about the purpose of
the interview. It viewed the violation as de
minimus. The Arbitrator found that this cannot
be viewed as a mere procedural defect. “Without
prior specification of the nature of the matter
being investigated, the right of ‘representation’
becomes a hollow shell.” Without a purpose
specification, interviews become an unfocused
information gathering forum and can often lead
to ambiguous results. The Employer attempted
to raise certain credibility concerns because the
Grievant provided differing justifications for her
action at the investigatory interview versus the
pre-disciplinary hearing. This difference in
justification was plausible since the purpose
requirement of Section 24.04 was violated. A
contractual violation of this sort represents a
severe due process abridgment, which the Ohio
Revised Code, state and federal courts view as a
critical element of representation rights.
Investigation defect allegations dealing with
unequal treatment were supported by the record.
Other similarly situated bargaining unit members
who had not been disciplined for similar offenses
were identified for the Employer. The Employer
did nothing to investigate this unequal treatment.
1006
The Arbitrator agreed with the state that
the grievance was not properly filed. It
was filed as a class action grievance on
behalf of all employees at OVH;
however, the dispute appeared to be
limited to two employees, who were
brought into an investigatory interview
to provide evidence and requested union
representation. That request was
denied. However, the Arbitrator did not
believe the grievance should be
dismissed. Failure to list the members
of the class by the Step Three hearing
meeting did not require the dismissal of
the grievance. Communication from
the staff representative to the state
indicates that the union identified the
potential witnesses and the nature of
their testimony.
The fact that the union may
have requested an improper remedy
does not mean that the Arbitrator could
not consider whether there was a
contract violation and, if necessary,
devise a proper remedy.
The Arbitrator held that the
two Grievants were not entitled to union
representation. Their meetings with
management were not investigatory
interviews. They met with management
as a result of a union complaint