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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
egarding the conduct of a supervisor. The supervisor was the object of the investigation, not the Grievants. The Grievants had no reason to believe that they could be subject to discipline; they were simply asked to write statements regarding what they saw or heard. The Arbitrator rejected the claim that an employee is entitled to union representation at a meeting with management where the employee feels uncomfortable or feels that he/she needs representation. This position is inconsistent with the standard adopted by SERB and the NLRB which requires employees to reasonably believe that they could be subject to discipline before they are entitled to union representation. 1011 24.05 - Imposition of Discipline Violated, technically at least, when captain delivered order of removal to employee in the presence of other employees. 1 Where there was no effort to humiliate grievant, and no evidence that grievant was publicly humiliated, violation of 24.05 does not warrant setting aside a removal, or modification thereof. 1 Requirement that discipline be reasonable and commensurate with offense is violated where grievant had sufficient past absenteeism disciplines that another absenteeism offense would have justified removal, but was removed for the first offense of violating procedural rules with regard to requesting and documenting sick leave. 24 Removal is the most serious remedy available in the arsenal of disciplinary tools and should only be use as a last resort. 27 Where state took some time before issuing final disciplinary decision, the arbitrator found no violation of 24.05 because (1) delay was due to state conducting a thorough investigation before predisciplinary meeting, and (2) the final disciplinary decision was issued less than 45 days after both investigatory interview and predisciplinary meeting (so that which ever meeting triggered the 45 day period, the 45 day time limit was not exceeded). 36 Requires that discipline be reasonable and commensurate with the offense and not be used solely for punishment. If mitigating factors are available, then every violator must have those factors considered. If a disciplinary grid gives notice of a lesser discipline, then that notice creates a reasonable expectation that where appropriate a lesser discipline will be imposed. 86 Discipline was not “solely for punishment” where it was also intended to compel the grievant to recognize his duties, as well as to punish. 119 Proof that the grievant is guilty as charged does not automatically justify the penalty. The arbitrator is required to weigh the discipline against 3 interrelated contractual standards: 1. Discipline must follow the principles of progressive discipline. 2. Discipline must be commensurate with the offense and not solely for punishment. 3. Discipline must be for just cause. 123 Reading sections 24.02 and 24.05 together leads to the conclusion that the 45 days is an absolute maximum. It supplements, but does not entirely supersede the Employer’s responsibility to react to a disciplinary event “as soon as reasonably possible.” 140 Removal is not commensurate with the offense of abandoning the work site without permission for 2 ½ hours under the circumstances of the case: employee with 7 years of good service. The removal violated 24.02 and 24.05. 173 Where the warden of the correctional institution removed a probationary employee, the state did not violate 24.05; there is no contractual requirement that the agency head approve a probationary employee’s removal prior to the end of the probationary period. 207 The grievant overslept inadvertently and through no fault of her own. She attended to her domestic duties and hurried to work. That she failed to call-in under these circumstances is understandable. It is not indicative of an employee acting in disregard of the employer’s interests. Rather, it is indicative of an employee doing her utmost to get to work quickly. Section
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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
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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
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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
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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
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language toward a number of inmates
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a motor vehicle with an inoperative
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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 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: The grievant was an investigator wi
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
Page 201 and 202: ARTICLE 28 - VACATIONS 28.01 - Rate
Page 203 and 204: contains various interventions and
Page 205 and 206: 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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