by Contract Number (PDF) - OCSEA

24.05 provides that discipline will be
“reasonable and commensurate with the offense
and shall not be used solely for punishment.” In
this situation the increase form a 1 day
suspension to a 6 day suspension is unreasonable
and is not commensurate with the offense. 210
The appointing authority or his designee, in
accordance with §24.05, makes a final decision
of the recommended disciplinary action. They
have the authority to impose different penalties
than those recommended as long as their
decision is not arbitrary or capricious. 246
Even though technically the employer violated
its contractual duties of disclosure there is no
indication that the Union or the grievant suffered
harm as a result. The pre-disciplinary hearing
proceedings encompassed ten days. There was
substantial compliance by the State with the
disclosure rules. 292
The State does not have to notify the employee
of impending discipline within forty-five days.
The clear language of Section 24.05 states only
that the employer must make a decision within
forty-five days. The employer must notify the
employee without undue delay, but this does not
have to be within the forty-five day time frame.
292
The five months between the alleged abuse of an
inmate by the grievant and the discharge may
seem to violate Article 24.02 which sets the
standard as requiring the employer to act with as
much dispatch “as reasonably possible.” In this
case the arbitrator found that management did act
as quickly as statutory procedures allowed and
the grievant’s case was aided by the delay, not
hampered by it. 292
Ohio Administrative Code 5120-9-01 establishes
the basis for allowing force in a prison setting
and distinguishes between uses which are
legitimate and those which are not. When force
is used or alleged, an internal investigation is
performed and the institution head is advised of
the findings. The Predisciplinary hearing was
scheduled six days after this review. There was
no unreasonable delay. 292
The forty-five day time limit to impose
discipline means only that the decision to impose
discipline must be made within forty-five days.
The arbitrator decided that Article 24.05 of the
Agreement did not make the employer
responsible for notifying the employee within
forty-five days. The employer must notify an
employee of his/her discipline without undue
delay. This does not mean that the employer has
to notify the employee within forty-five days.
292
In the case of an alleged inmate abuse the
predisciplinary hearing was not unreasonably
delayed since the facility must conduct a Use of
Force investigation under Ohio Administrative
Code 5120- 09-02. Without this investigation the
grievant’s statutory rights could have been
seriously jeopardized. 307
Section 24.05 requires a final decision on
disciplinary action as soon as possible not to
exceed 45 days. The exception to the 45 day time
limit is in cases where a criminal investigation
may occur and the employer decides no to make
a decision on the discipline until after disposition
of the criminal charges. This specific exception
was intended to suspend the otherwise applicable
time constraints when the results of a criminal
investigation are unknown. By its terms, the
exception is future oriented; when the criminal
investigation is complete, it no longer “may
occur” and the exception no longer applies.
Because the employer took longer that 45 days
after the end of the criminal action, it was in
technical violation of the provision. 307
The grievant began his pattern of absenteeism
after the death of his grandmother and his
divorce. The grievant entered an EAP and
informed the employer. He had accumulated
104 hours of unexcused absence, 80 hours of
which were incurred without notifying his
supervisor, and 24 hours of which were incurred
without available leave. Removal was
recommended for job abandonment after he was
absent for three consecutive days. The
predisciplinary hearing officer recommended
suspension, however the grievant was notified of
his removal 52 days after the pre-disciplinary
hearing. The arbitrator found that the employer
violated the contract because the relevant notice
dates are the hearing date and the date on which
the grievant receives notice of discipline. Other
arbitrators have looked to the hearing date and
decision date as the relevant dates. Additionally,
the employer was found to have given “negative
notice” by overlooking prior offenses. The
arbitrator reinstated the grievant without back
pay and ordered him to enter into a last chance
agreement based upon his participation in EAP.
371