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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
The grievant was a Corrections Officer, as was his wife. She had filed sexual harassment charges against a captain at the facility. The grievant and the grievant’s wife’s attorney contacted an inmate to obtain information about the captain. The employer removed the grievant for misuse of his position for personal gain, and giving preferential treatment to an inmate, 44 days after the pre-disciplinary hearing, and he received notice of his removal on the 46th day after the pre-disciplinary. The arbitrator held that the employer proved that the grievant offered the inmate personal and legal assistance in exchange for information. The investigation was proper as it was a full investigation and it was conducted by persons not reporting to anyone involved in the events. It was found that the investigation need not be exhaustive and the hearing officer’s report need not contain all information, only relevant information, thus the grievance was denied. 372 The grievant was a Corrections Officer who was removed for watching inmates play cards while they were outside their housing unit. The grievant admitted this act to his sergeant. The pre-disciplinary hearing had been rescheduled due to the grievant’s absence and was held without the grievant or the employer representative present. The arbitrator found that because the union representative did not object to the absence of the employer’s representative that requirement had been waived. There was also no error by the employer in failing to produce inmates’ statements as they had not been used to support discipline. The removal order was timely as the 45 day limit does not start until a predisciplinary hearing is held, not merely scheduled. 377 The grievant attended a pre-disciplinary hearing for absenteeism, at which his removal was recommended, but deferred, pending completion of his EAP. He failed to complete his EAP and was absent from December 28, 1990 to February 11, 1991. The grievant was then requested to attend a meeting with a union representative to discuss his absence and failure to complete his EAP. The grievant was removed for absenteeism. The arbitrator found the grievant guilty of excessive absenteeism and prior discipline made removal the appropriate penalty. The employer was found to have committed a procedural error. Deferral because of EAP participation was found proper, however the second meeting was not a contractually proper predisciplinary hearing. No waiver was found on the part of the union, thus the arbitrator held that the employer violated the contract and reinstated the grievant without back pay. 383 The grievant worked in a Medical Records office when a new supervisor was hired in January 1985. The supervisor changed the office location and began to strictly enforce the work rules. The office layout was also changed twice due to new equipment purchases. The supervisor also instituted a physician’s verification policy which was stricter than the previous policy. The grievant was on work related disability in February 1987. She received Disability Leave benefits and Workers’ Compensation. When these benefits expired she began working for a private employer. She received an order to return to work in July 1987 because management became aware of her other employment. The grievant refused to return to work under her prior supervisor. The grievant appealed her denial offurther Workers’ Compensation benefits and lost, after which she contacted the facility to come back to work. The arbitrator found that the grievant failed to prove supervisory harassment or constructive discharge. All the supervisor’s acts were within her scope of authority and related to efficiency. The removal was timely because the tree year delay was caused by the grievant’s pursuit of her worker’s compensation claim in state court. The arbitrator held that the grievant abandoned her job and denied the grievance. 384 The grievant was a Youth Leader 2 who had forgotten that his son’s BB gun was put into his work bag, because it was to be taken in to be repaired. While at work a youth entered the grievant’s office, took the BB gun and hid it in the facility. Management was informed of the presence of the BB gun by another youth and the grievant was informed the next day. He was removed for failure of good behavior, bringing contraband into an institution, and possessing a weapon or a facsimile on state property. It was proven that the grievant committed the acts alleged but removal was found to be too severe. The grievant had no intent to violate work rules, the BB gun was not operational, and the employer withdrew the act of leaving the office door open as a basis of discipline. The grievant’s work record also warranted a reduction to a thirty day suspension. 388
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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
Page 27 and 28:
“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
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
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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 and 156: The grievant was an investigator wi
Page 157: egarding the conduct of a superviso
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
Page 207 and 208: 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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