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disciplinary 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 was a field employee who was required to sign in and out of the office. He began to experience absenteeism in 1990 and entered drug abuse treatment. He continued to be excessively absent and was removed for periods of absence from October 2nd through the 10th and October 26th to the 30th, during which he called in sporadically but never spoke to a supervisor. The grievant was found to have violated the employer’s absenteeism rule. Additionally, the employer was found not to be obligated to enter into a last chance agreement nor to delay discipline until the end of the grievant’s EAP. Mitigating circumstances existed, however, to warrant a reduced penalty. The arbitrator noted the grievant’s length of service from 1981 to 1990, and the fact that he sought help himself, therefore the arbitrator reinstated the grievant with no back pay pursuant to a last chance agreement after a physical examination which must show him to be free of drugs. 391 While on disability leave in October 1990 the grievant, a Youth Leader, was arrested in Texas for possession of cocaine. After his return to work, he was sentenced to probation and he was fined. He was then arrested in Ohio for drugrelated domestic violence for which he pleaded guilty in June 1991 and received treatment in lieu of a conviction. The grievant was removed for his off-duty conduct. The grievant’s guilty plea in Texas was taken as an admission against interest by the arbitrator and the arbitrator also considered the grievant’s guilty plea to drug related domestic violence. The arbitrator found that the grievant’s job as a Youth Leader was affected by his off-duty drug offenses because of he coworkers’ knowledge of the incidents. The employer was found not to have violated the contract by delaying discipline until after the proceedings in Texas had concluded, as the contract permits delays pending criminal proceedings. No procedural errors were found despite the fact that the employer did not inform the grievant of its investigation of him, nor permit him to enter an EAP to avoid discipline. No disparate treatment was proven as the employees compared to the grievant were involved in alcohol related incidents which were found to be different than drug-related offenses. Thus, the grievance was denied. 410 The arbitrator recognized the employer's right to implement and enforce a drug policy but cautions that enforcement of such a policy cannot be done in violation of the provisions of the Contract. First, the arbitrator pointed out that the employer was not required to remove an employee upon his/her first drug offense. The arbitrator concluded that the discipline was not progressive in light of the grievant's past discipline. Further, the arbitrator found that the phrase "in any way" does not include possession of drugs. As for the absenteeism problem, there was no doubt that it exists. However, removal was too severe a punishment for such actions. The grievance was sustained. The removal was set aside and reduced to a ten day suspension. The award was conditioned upon the grievant's participation in and compliance with her Employer's Employee Assistance Program. The grievant was further placed on notice that a second violation of the drug policy would warrant her removal. 429 The grievant became involved in an EAP program prior to receiving notice of pending discipline, and as such, this was a mitigating circumstance in modifying his removal. 456 (1992-94 contract) The Employer and grievant signed a last chance agreement, which included EAP completion, after the Employer ordered the removal of the grievant based on a charge of patient abuse, a charge which was not grieved. The grievant failed to meet the conditions of the last chance agreement, and so the Employer had just cause to activate the discipline held in abeyance, regardless of any mitigating circumstances. 465 (1992-94 contract) The fact that the grievant enrolled in the EAP is irrelevant, particularly because the grievant inquired about EAP only after disciplinary action had begun. 466 (1992-94 contract) The State was under no obligation to offer the grievant an EAP agreement under Article 24.09 of the collective bargaining agreement. The language of the shows that the State is not obligated to, but rather has the discretion to enter into EAP agreements in lieu of discipline under certain circumstances. In this case there was no evidence or testimony to show that the State
exercised its discretion in an arbitrary manner or that its denial of an EAP agreement represented disparate treatment of grievant. 549 (1994-97 contract) Article 24.09 allows an employee who is in danger of being disciplined to enroll in an Employee Assistance Program (EAP), which could result in the delay or mitigation of the disciplinary measures to be taken. The Arbitrator held that entering into an EAP agreement is not mandatory for the State, but is solely at the discretion of the employee’s supervisor. 605 (1994-97 contract) Although the grievant's participation in the Employee Assistance Program did not appear to have improved his job performance, the Arbitrator found that the grievant, a seventeenyear employee of the State, deserved a chance to allow the EAP to work. (1997- 2000 contract) Though the Arbitrator found the grievant guilty of a number of the charges and there was just cause for removal, the Arbitrator noted that the State was eager to either change the grievant's behavior, and failing that, to get rid of her. The Arbitrator stated that Management must accept partial responsibility for the grievant's troubles and the working environment. While the Arbitrator found no just cause for removal, the grievant was removed, and an award of back pay and benefits was given to the grievant from the date of her discharge to the date of award. The date of her award would also be noted as grievant's termination date. 701 In the period leading up to his dismissal the Grievant was having issues with members of his household and his own health. The Grievant did not call in or show up for work for three consecutive days. The Arbitrator held that employers unquestionably have the right to expect employees to come to work ready to work when scheduled. However, just cause also demands consideration for the surrounding circumstances of a violation, both mitigating and aggravating. The Arbitrator found the circumstances in this case did not indicate a “troubled employee” such as one suffering from addiction or serious mental illness. Rather, the Grievant was an otherwise good employee temporarily in crisis (because of circumstances beyond his control) and unable to help himself. This case, in which professional intervention may eventually rehabilitate the employee, was ripe for corrective discipline rather than discharge. The Grievant received a thirty-day suspension to impress upon him his responsibility to inform his employer of his status. 983 ARTICLE 25 - GRIEVANCE PROCEDURE Article 25 does not prevent arbitrator from enforcing Article 13. 55 The grievant was charged with various alleged violations including unexcused tardiness, AWOL, and Failure of Good Behavior for not following the directions of a superior when he was told to take a midday lunch break before going to his next appointment. He chose not to take the break and to proceed to his next appointment. The arbitrator found that the initial determination by the employer that the AWOL and Failure of Good Behavior charges were “serious” was correct. However, these charges were ultimately found to have been improperly leveled against the grievant. The unexcused tardiness allegation was considered diminished in severity by the fact that some of the tardiness charges were simply in error, others were withdrawn and one was improper. The arbitrator found that the employer gave proper weight to the insubordination charge and that the remaining tardiness charge was recidivist in nature. He found that the charge of Exercising Poor Judgment was proper in this instance because the offense followed specific counseling regarding how to handle his lunch break. This charge was concededly less serious than insubordination, and the 10-day suspension was reduced to an 8-day suspension. 809 The grievant was charged with physically striking a youth inmate. The arbitrator found that although the youth was not seriously hurt, he could have been badly injured. The Grievant had options which could have been used in an effort to avoid confrontation. The discipline short of removal was warranted. The award issued by the arbitrator was meant to correct the Grievant’s behavior and to emphasize “discretion is often the better part of valor when it comes to handling dangerous and difficult juvenile inmates.” 915 25.01 – Process
Page 1 and 2:
INDEX BY CONTRACT SECTION ARTICLE 1
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this case, one cannot conclude that
Page 5 and 6:
Muskingum Counties that were consol
Page 7 and 8:
in Article 24.04 as a meeting. The
Page 9 and 10:
Article 2.01 requires that neither
Page 11 and 12:
The Arbitrator found that when the
Page 13 and 14:
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
Page 19 and 20:
Management established a list of in
Page 21 and 22:
the FR clothing during these five m
Page 23 and 24:
11.11 - Concern for Pregnancy Hazar
Page 25 and 26:
of the contract occurred. Based upo
Page 27 and 28:
“In paragraph 3…the word “win
Page 29 and 30:
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
Page 37 and 38:
In this case the Union grieved that
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Arbitrator held that the Grievant f
Page 41 and 42:
when he was placed back into his fo
Page 43 and 44:
selected because she was within ten
Page 45 and 46:
she was in Section 17.04 applicant
Page 47 and 48:
for a new DCS Assessment. The union
Page 49 and 50:
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”
Page 61 and 62:
grievant was a nine-year employee w
Page 63 and 64:
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
Page 93 and 94:
progressive and commensurate discip
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Bureau of Employment Services, had
Page 97 and 98:
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
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and he had remained in contact with
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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 and 170: grievant’s removal was upheld, an
Page 171 and 172: once the Youth was on the ground. C
Page 173: undermines the purpose of the EAP p
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
Page 221 and 222: “similar or related series” as
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