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guarantee that a document has sufficient weight
to be either credible or probative. 53
In regard to whether manager’s disciplinary
recommendations are reasonably available
arbitrator said, “The management responsibilities
of department heads and deputy administrators
include, one supposes, making disciplinary
recommendations. The arbitrator fails to see
how making these responsibilities secret will
On its face, 25.08 includes broad discovery. 53
Relevancy in discovery is traditionally s
ignificantly more liberal than in evidentiary matters. 53
Since the purpose of the arbitration is to determine whether
the decisions to discipline was made with “just cause,” any
information used to arrive at the at decision is “relevant to
that grievance” for the purpose of discovery. 53
Section 43.01 gives precedence to the agreement over any
statute other than ORC 4117, where such statues conflict
with the agreement. Thus, the requirement in §25.08 that the
state produce evidence requested by the union supercedes
the Ohio Highway Patrol’s statutory privilege in ORC
149.43. 75
The union has the right to discover the predisciplinary report
only after the final disciplinary decision has been made.
This preserves the situation here both sides present their
statements simultaneously to the disciplinary authority with
neither having the opportunity to rebut the other. 83
Arbitrator followed opinion #53: Pre-disciplinary reports are
discoverable. 83
There is a distinction between what is discoverable under
§25.08 and what is admissible at the arbitration hearing. 83
In regard to whether manager’s disciplinary
Complete incident reports are both relevant to the grievance
and reasonably available under 25.08 and hence are
discoverable. 83
Discovery rights. 86
Section 25.08 specifically provides that not only documents,
but witnesses reasonably available from the employer, be
made available for arbitration. 106
While the arbitrator found that A-302(F) did not require a
written pre-disciplinary report, she was troubled by the
practice since she had held in a previous arbitration that
written pre-disciplinary reports are discoverable under
25.08. 109
contribute to a reasonable and fair process. If
knowing that their words will be scrutinized will
cause persons to choose words carefully, then so
be it. The arbitrator finds that well chosen,
reasonable words will strengthen the process, not
“chill” it. 83
A deliberate action to avoid the essence of 25.08 (by
deliberately failing to provide the pre-disciplinary report)
would violate the implicit due process requirements of the
contract. The arbitrator took note of the absence of evidence
that the action had been deliberate in this case. 109
Discovery. 116
The Arbitrator concluded that the Employer's refusal to
provide a transcript of the resident's interview and witness
statements did constitute a violation of Sections 25.08 and
24.01 of the Contract. The Union was entitled to those
statements and the Employer could not unilaterally
determine that statements of eyewitnesses were not relevant
and refuse to produce them. The Union would have no
opportunity to determine whether those statements were
inconsistent with the oral testimony of the witnesses and
would be forced to guess at a witness' testimony when it had
previously been reduced to writing. Withholding the
statement of the victim of an alleged abuse was particularly
prejudicial. Had a witness been
unavailable to testify, the Union and the Arbitrator would
have been deprived of the key information that the resident
had admitted falsely accusing the Grievant of threatening
him with a knife. The Arbitrator concluded that the
Employer’s violations of Section 25.08 also constitute a
failure to establish just cause for Grievant's removal as
required by Section 24.01 of the Contract. 116
Section 442.502, CFR, a regulation that protects patient
confidentiality in certain ways, supersedes 25.08 where
25.08 conflicts with the regulation. The parties did not
intend for the contract to supersede federal laws and
regulations. 116
The employer violated 25.08 by refusing to provide the
union with a transcript of an investigatory interview of the
patient who made the allegation against the grievant. It was
a serious violation since it contained the statement of the
alleged victim. The seriousness is highlighted in this case
where the victim had admitted that part of the allegation had
been false. 116
The employer violated 25.08 by refusing to furnish the
written statements of certain persons that had been taken at
step 3. That the persons testified at the arbitration hearing
does not cure the violation. (1) The Union should have the