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Grievant disparately in disciplining him for his attempt to gain drug bust information since his coworkers were not disciplined for failing to report the conduct. He found their knowledge made them complicit in the violation and found that they only came forward after the disciplinary process commenced. Therefore, the Arbitrator found that DR&C failed to enforce its rule on an equal basis. 940 Insubordination is a serious offense. The Grievant’s misconduct took place in a correctional facility where following orders is particularly important. The very next day the Grievant violated policies and procedures when she left a youth unattended. The Grievant’s disciplinary history was a major factor supporting termination—she had received a 12- day suspension on January 19, 2005. The Arbitrator rejected the claims that the Grievant was the victim of disparate treatment; that the imposition of discipline was delayed; and that the employer was “stacking” charges against the Grievant in order to justify her termination. The Union was unable to show how the delay prejudiced the Grievant’s case or violated the contract. The decision to combine two incidents appeared to be reasonable. The disciplinary record of another JCO involved in leaving the youth unattended justified the different treatment. The Arbitrator concluded that the Grievant’s discharge was for just cause and was in compliance with the collective bargaining agreement. 942 The grievant was a CO who was charged with allegedly giving preferential treatment to an inmate and having an unauthorized relationship with an inmate. The grievant admitted at arbitration that on occasion he provided an inmate cigars, scented oil and food from home and restaurants. He admitted that he accepted cigarettes from inmates who received contraband. The arbitrator found that the grievant was removed for just cause. His misconduct continued for an extended period of time; thus his actions were not a lapse in judgment. He attempted to conceal his misconduct by hiding food so the inmates could find it. Therefore, the grievant knew what he was doing was wrong. The grievant accepted “payment” for the contraband when he accepted cigarettes in exchange for the food and other items he provided to the inmates. The arbitrator found that grievant’s actions compromised the security and safety of inmates and all other employees at the facility. 953 When the Grievant organized, planned, and promoted a work stoppage she violated Rule 30B. The Arbitrator believed she developed the plan and solicited the participation of other employees. When the grievant organized a work stoppage in the face of an approaching winter storm, she engaged in “action that could harm or potentially harm . . . a member of the general public” and violated Rule 26. Grievant violated Rule 4 by interfering with the investigation of the work stoppage. Testimony from other witnesses showed that the grievant was not truthful in her accounts of the events. The Arbitrator believed the state conducted a full and fair investigation. The Arbitrator did not believe the grievant was the object of disparate treatment. Leaders of work actions are identified and discharged, while employees playing a lesser role receive less severe penalties. The Arbitrator did not believe the state failed to use progressive discipline. In the case of very serious misconduct an employer is not required to follow the usual sequence of increasingly severe discipline. Mitigating factors of long service, good evaluations, and behaving in a professional manner in her work as a union steward did not offset the seriousness of the Grievant’s misconduct. The Arbitrator concluded that when the Grievant organized a work stoppage in the face of major winter storm she provided the state with just cause for her discharge. 956 The Arbitrator held that the Employer had just cause to remove the Grievant for falsification. When an employee is found to have falsified a series of request forms to receive compensation for which he is not entitled, this misconduct is equivalent to “theft.” The Grievant used education leave for periods of time when no classes were scheduled and falsified a request for sick leave on a date he was not sick. The Arbitrator found no notice defects. The Grievant’s credibility was hurt based on the differing justifications for his misconduct. 982 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 evidence does support a finding that just cause exists for discipline under Rule #6 because it was the clear intent of the Grievant to threaten the co-worker. A picture posted in the break room by the Grievant was offensive and was intended to threaten and intimidate the coworker. However, just cause does not exist for removal. The evidence fails to indicate that during the confrontation in the break room the Grievant engaged in any menacing or threatening behavior toward the co-worker. The co-worker’s initial response to the posting of the picture failed to demonstrate any fear or apprehension on his part. In fact, his reaction in directly confronting the Grievant in the break room underscores his combative nature, and was inconsistent with someone allegedly in fear or apprehension. The Arbitrator took into consideration several mitigating factors. None of the Grievant’s allegations against the co-worker were investigated. The facts are unrefuted that the Employer failed to provide any documents or witness list before the pre-disciplinary hearing, in violation of Article 24.05. The Grievant’s immediate supervisor was directed by his supervisors to alter his evaluation of the Grievant. The revised evaluation contained four “does not meet” areas, whereas his original evaluation had none. Witnesses from both sides, including management, were aware of the animus between the co-workers. The Employer was complicit in not addressing the conduct or performance issue of the Grievant and the coworker, which escalated over time and culminated in the break room incident. 1013 24.06 – Prior Disciplinary Action Reliance on pre-contractual discipline is not inappropriate when not based on records kept in violation of 24.06 (in this case, record used was suspension order initiated prior to effective date of contract). 47 The parties have agreed that, for the purpose of applying progressive discipline, pre-contract disciplinary actions are to be considered under the same guidelines as post-contract actions (24.06). 91 Pre-contractual discipline is not irrelevant. To the contrary, the parties have expressly provided in 24.06 that pre-contractual and post-contractual discipline are to be treated equally insofar as inclusion in personnel records. As Arbitrator Rivera suggests, however, it may be appropriate in certain circumstances for an arbitrator to assign somewhat less weight to some precontractual discipline due to the lesser disciplinary standard applied at the time. 106 When the state offered a past reprimand that should have been expunged from grievant’s records under 24.06, the state violated 24.06. The arbitrator mistakenly ignored 24.06 when he accepted the reprimand into evidence. Consequently, the arbitrator gave the reprimand no weight. 140 While the arbitrator endorsed Arbitrator Dworkin’s analysis of 24.06 which prevented the admission of evidence about discipline prior to the contract, he held that the analysis did not anticipate the circumstances surrounding the present case where the grievant had falsified her employment application by omitting that she had previously been removed from employment with the state. The arbitrator held that evidence of that removal obtained by an investigation was admissible in such a situation. To preclude such an investigation would frustrate the employer’s selection and appointment process. Without additional evidence of the intent of the parties regarding 24.06, the arbitrator was unwilling to find that the employer had violated 24.06. 268 − The Trooper investigating the escape and the Step Three official both knew of a 1984 incident in which the grievant was disciplined. Citing this discipline was not proper under Section 24.06 which requires excising discipline from the employee’s record. 314
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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
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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
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her work. The arbitrator stated tha
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meeting. The evidence also suggeste
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egarding IME’s within ODNR. The a
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individual under the supervision of
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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 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: The grievant was reinstated to her
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
Page 209 and 210: ARTICLE 36 - WAGES 36.02 - General
Page 211 and 212: 37.04 - In-Service Training Under 3
Page 213 and 214: arbitrator found the grievance arbi
Page 215 and 216: 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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