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of his separation, and he was reinstated pursuant to a two-year probationary plan, under which he shall violate no rule or policy involving any youth. Failure to comply will be grounds to remove the Grievant. 995 The Arbitrator concluded that more likely than not the Grievant transported a cell phone into the institution within the period in question, violating Rule 30, by using it to photograph her fellow officers. The Arbitrator held that the Agency clearly had probable cause to subpoena and search 13 months of the Grievant’s prior cell phone records. The prospect of serious present consequences from prior, easily perpetrated violations supported the probable cause. The Arbitrator held that the Grievant violated Rule 38 by transporting the cell phone into the institution and by using it to telephone inmates’ relatives. The Arbitrator held that the Grievant did not violate Rule 46(A) since the Grievant did not have a “relationship” with the inmates, using the restricted definition in the language of the rule. The Arbitrator held that the Grievant did not violate Rule 24. The Agency’s interpretation of the rule infringed on the Grievant’s right to develop her defenses and to assert her constitutional rights. The mitigating factors included: the Agency established only two of the four charges against the Grievant; the Grievant’s almost thirteen years of experience; and her record of satisfactory job performance and the absence of active discipline. However, the balance of aggravative and mitigative factors indicated that the Grievant deserved a heavy dose of discipline. Just cause is not violated by removal for a first violation of Rules 30 and 38. 1003 The Grievant acted contrary to the Employer’s training and directives and admitted he acted inappropriately. The Youths made verbal comments that were tied in to their combative behavior. The Arbitrator found that there were grounds for discipline, but did not think removal was warranted. Considering the total evidence, the discipline was not progressive and needed to be modified. The removal was changed to a forty-five day suspension. 1015 The Arbitrator found that the evidence and testimony clearly established that the Grievant committed numerous violations of the computer use policy on a regular basis. These included: m. installing a Palm Pilot on her work computer. n. maintaining non‐work related files on her department computer. o. accessing two non‐departmental email accounts from her computer p. using the computer to actively access shopping sites The Arbitrator rejected the charge of insubordination. The Arbitrator held that “dishonesty” was not a proper charge. It implies serious misconduct where an employee’s motive is often to obtain pay that he/she is not entitled to receive. The Grievant’s timesheets suggest that she simply recorded her regular starting, lunch, and ending times regardless of the actual times and none involved a claim for extra compensation. Furthermore, all the timesheets were approved by her supervisor. The prior five-day suspension for computer misuse suggests that the Grievant was familiar with the computer use policy and knew that further discipline would result from continued computer misuse. It also indicates that she failed to take advantage of the opportunity to correct her behavior. Despite the Grievant’s 13 years of state service, the Arbitrator held that the state had the right to remove her. The Grievant’s extensive violations of the computer use policy combined with the other less serious offenses support the state’s actions. Her prior five-day suspension for computer misuse removes any doubt that the state acted pursuant to its contractual authority. 1016 The Arbitrator overruled the timeliness issue raised by the union. Article 24.06 gives the employer the option to delay the decision to discipline and halt the running of the forty-five days until after any criminal investigation. The evidence was clear that there was a fight and that the Grievant and several other JCO’s were injured. However, the evidence was clear from witnesses that the Grievant hit and kicked the Youth
once the Youth was on the ground. Considering the severity of the assault, the Arbitrator found the removal to be correct. 1020 The Arbitrator found that the Grievant was removed without just cause. Management did not satisfy its burden of proving that he acted outside the Response to Resistance Continuum and engaged in the conduct for which he was removed. The Youth’s level of resistance was identified as combative resistance. The Grievant’s response was an emergency defense, which he had utilitized one week earlier with the same Youth and without disciplinary action by Management. A fundamental element of just cause is notice. Management cannot discharge for a technique where no discipline was issued earlier. In addition there was no self-defense tactic taught for the situation the Grievant found himself in. 1032 The Arbitrator found that Management satisfied its burden of proving that the Grievant failed to maintain the close supervision for one patient and one-onone supervision for another patient. The Grievant chose to work without adequate sleep, rather than to seek leave, and her choice placed the residents in her supervision, and the Center at risk. However, Management had created an arbitrary distinction in supervision cases arising from sleeping on duty. The Union established that other similarly situated employees received suspensions and/or other disciplinary action far short of removal for similar conduct. Therefore, the Arbitrator held that discipline was warranted, but the removal was without just cause. 1037 The Arbitrator held that despite the Grievants 19 ½ years of service, her extension of her break, and more importantly, her dishonesty in the subsequent investigation, following closely her ten-day suspension for insubordination, gave him no alternative, but to deny the grievance and uphold the removal. The Arbitrator rejected the argument that the removal was inconsistent with progressive discipline because dishonesty and insubordination are different offenses. The Arbitrator found this contention contrary to the accepted view of Arbitrators regarding progressive discipline. Also, the agency policy stated that “discipline does not have to be for like offenses to be progressive.” 1040 24.07 – Polygraph Stress Tests The parties did not intend to expressly bar the use of polygraph evidence. If they had, they would have done so expressly in 24.07 which deals with polygraph evidence. 124 “The results of polygraph examinations are generally not accepted as reliable evidence of truthfulness.” United States Steel Corp., 70 LA 146 (Powell, 1977). “Under the overwhelming weight of arbitral authority…where an employee does submit to lie detector testing, the test results should be given little or no weight in arbitration.” Elkouri and Elkouri How Arbitration Works (BNA, 1985) p. 315. The arbitrator could understand the polygraph tests being used by the State to aid its investigation concerning the grievant, but decided to give the result of the test little weight. 293 The grievant’s refusal to take a polygraph is a bargained for right and is therefore without value in determining the grievant’s credibility. Grievant’s belligerence is as easily characterized as fury over perceived injustice as it is guilt. It was improper for the Warden to believe the grievant was guilty because the grievant refused to take the polygraph test. 307 The grievant was being investigated for theft. The Highway Patrol in its investigation asks the grievant and another employee to take a polygraph examination. The grievant agreed to take the test which was administered two to three weeks after the alleged incident of theft. The grievant “failed” the test. When given an option of resigning with no mark on her personnel record, the grievant resigned. The Union challenged whether the resignation was voluntary. The basic criteria to decide whether the grievant’s resignation was voluntary is: 1. Was the grievant competent to make the decision? Was she operating under such an emotional deficit as to render her incompetent?
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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,
Page 17 and 18:
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
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“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
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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
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particularly in light of layoffs, b
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“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 and 166: The grievant was reinstated to her
Page 167 and 168: consider that the co-worker may hav
Page 169: grievant’s removal was upheld, an
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
Page 217 and 218: permanent part-time employees earn
Page 219 and 220: she was evaluated below average in
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“similar or related series” as
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