by Contract Number (PDF) - OCSEA

grievant’s removal was upheld, an award of back
pay and benefits was given from the date of her
discharge to the date of award. The date of her
award would also be noted as the grievant’s
termination date. 701
The Grievant admitted that he failed to make all
of the required 30-minute hallway checks and a
2:00 a.m. headcount and then made entries in the
unit log indicating he had done so. The
Arbitrator held that just cause existed for
discipline. Since the Grievant committed a
serious offense less than two years after being
suspended for six days for the same offense, the
Arbitrator held that the principles of progressive
discipline had been followed. In addition, the
Arbitrator held that long service cannot excuse
serious and repeated misconduct. It could be
argued that an employee with long service
should have understood the importance of the
hallway checks and headcount more than a less
senior employee. The Union argued that since
the Grievant was not put on administrative leave,
it suggested that his offense was not regarded as
serious. The employer, however, reserved the
use of administrative leave for cases where an
employee is accused of abuse. The Union also
argued that the time it took to discipline the
Grievant should mitigate against his termination.
The Arbitrator held that the investigation and
pre-disciplinary hearing contributed to the delay
and the state made its final decision regarding
the Grievant’s discipline within the 45 days
allowed. 978
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
Verbal exchanges between two corrections
officers resulted in a physical struggle between
the two officers. The Arbitrator held that the
Agency failed to prove that the Grievant violated
either Rule No. 19 or Rule No. 37. The
Arbitrator held that more likely than not, the
other officer was the aggressor in the events
leading up to the struggle. The Grievant acted in
self defense and believed that any reasonable
person would have acted similiarly. Rule 19 was
not intended to deprive the Grievant or other
corrections officers of the right to defend
themselves against a physical attack from a
fellow staff member. The Arbitrator held that it
strained credibility to argue that the purpose or
spirit of Rule No. 37 was to deprive correctional
officers of the right to protect themselves against
attacks from coworkers. The Grievant’s
behavior was the kind of misconduct that
undermines the Grievant’s position as a role
model for the inmates. However, the altercation
took place where only a handful of inmates were
present. The Grievant’s fault or misconduct in
this dispute was her voluntary participation in
verbal exchanges with the other corrections
officer that led to a physical struggle between the
Grievant and that Officer. That misconduct
warranted some measure of discipline. The
Arbitrator held that the Grievant was not
removed for just cause. The Agency should not
terminate a fourteen-year employee for selfdefense
conduct or for engaging in juvenile
verbal exchanges with a coworker, even though
the behavior is clearly unacceptable. Some
measure of discipline is clearly warranted to
notify the Grievant and the other corrections
officer that verbal barbs have no place in the
Agency and will not be tolerated. A three-month
suspension without pay should sufficiently deter
the Grievant and others from embracing such
conduct. The agency was ordered to reinstate the
Grievant. 987
The Arbitrator held that, management
demonstrated by a preponderance of the
evidence that the Grievant violated General
Work Rules 4.12, 5.1, and 5.12, and therefore,
some measure of discipline was indicated.
Mitigating factors were the Grievant’s three
years of tenure, satisfactory performance record,
and no active discipline. In addition, the Agency
established only one of the three major charges
that it leveled against the Grievant. Also,
nothing in the record suggested that the Grievant
held ill will against the Youth. The Arbitrator
held that removal was unreasonable, but only
barely so, in light of the Grievant’s poor
judgment and his less than credible performance
on the witness stand. The primary reason for his
reinstatement is that the Grievant never intended
to harm the Youth. The Grievant was reinstated
under very strict conditions: he was entitled to
no back pay or other benefits during the period