by Contract Number (PDF) - OCSEA

establishes that the just cause standard was
applied. 248
The Arbitrator held that the grievant was not
entitled to progressive discipline due to the
seriousness of the violation (fighting). 586
(1994-97 contract)
The grievant was charged and acquitted of
criminal misconduct, yet the Arbitrator found the
investigation that identified the grievant as the
responsible party was full and fair and
conclusive. While it is true that the Contract
requires the employer to follow a principle of
progressive discipline and the employer's own
policy permits flexibility in the penalty, the
Contract and just cause standards also demand
that disciplinary action be commensurate with
the offense. Removal for theft is justified
provided that the employer is not arbitrary,
capricious or discriminatory in its imposition.
587 (1994-97 contract)
Considering the fact that the investigation was
complete when the indictment was returned, the
Arbitrator concluded, pursuant to Contract
Article 24, that the employer had the option to
terminate the grievant’s Administrative Leave
and, if circumstances warranted, the grievant
could have been returned to work. In the instant
case the grievant could not return to work.
Therefore, it was appropriate for the employer to
terminate the grievant’s Administrative Leave.
Additionally, the employer had just cause to
terminate the grievant based on the grievant’s
Neglect of Duty, Absence Without Leave and
Job Abandonment. 591 (1994- 97 contract)
24.01 - Standard
A very high standard of “just cause” must be met
where the employee has 20 years of service with
the state. 3
Provision against arbitrator modifying discharge
where abuse is found was held not to apply
where there was no abuse under the departments
definition of abuse. 14
There was no intent of the parties as to the scope
of “abuse” in section 24.01. 56
For the purposes of the Department of Mental
Health and the Department of Mental
Retardation and Developmental Disabilities, the
parties shall be subject to the definition of abuse
contained in Ohio Revised Code 2903.33(B)(2)
and their respective Ohio Administrative Code
Sections (5123-3-14(C)(1) and 5122-3-
14(C)(1)). For the purposes of all other
departments, however, all applicable state laws
shall be incorporated only if the parties have
traditionally
employed the term “abuse” in determining the
propriety of termination decisions. 56
Since 24.01 requires just cause for any
discipline, the employer must establish that it
had just cause to undertake the termination
before it can allege that an arbitrator does not
have authority to modify a penalty. 56, 108
The employer has the burden of proof to
establish just cause for termination. 71
Where the employer has published guidelines for
timeliness in steps of the disciplinary process
which were presumably relied upon by
employees, since 24.02 requires that disciplinary
action be initiated as soon as is reasonably
possible and directs that the arbitrator consider
“timeliness of the Employer’s decision to begin
the disciplinary process, and since just cause
under 24.01 requires fairness in the imposition of
discipline, having promulgated the guidelines,
the employer must follow them. 83
Under 24.01, the employer has the burden of
proof to establish just cause for the removal of
the grievant from employment. Termination
constitutes “economic capital punishment” and
heightens the burden of proof on the employer to
produce at least a preponderance of evidence
sufficient to warrant discharge. 91
Arbitrator held that where she did not modify
grievant’s termination, but did award back pay,
the award did not violate 24.01 even if the
offense was Abuse. 105
Employer violations of 25.08 (failure to furnish
documents) are relevant as to whether the
employer established just cause for discipline.
116
Proof that the grievant is guilty as charged does
not automatically justify the penalty. The
arbitrator is required to weigh the discipline
against 3 interrelated contractual standards:
1. Discipline must follow the principles of
progressive discipline.