by Contract Number (PDF) - OCSEA

2. Discipline must be commensurate with the
offense and not solely for punishment.
3. Discipline must be for just cause. 123
The arbitrator disagreed with Arbitrator Pincus’
ruling that 24.01 is intended to prevent an
arbitrator form holding that an employee was
disciplined for proper cause on the basis of
certain misconduct, but that termination for
misconduct should be reduced. 130
The contract imposes the burden of proof on the
Employer to establish just cause. 153
Just cause: The Employer has established just
cause for the removal of the Grievant. The
Employer is not unreasonable in demanding an
enhanced standard of care from its employees in
this area. Grievant's claim that he has not been
trained in proper tub bath procedure is
unpersuasive. Grievant's knowledge of the
resident's physical infirmities was enough to put
the Grievant on notice that he should not leave
the resident unattended and to his own devices in
a bathtub. 161
Standard of discipline: Employer did have just
cause to discharge the Grievant. The entire series
of events is extremely troublesome, but the
absenteeism infraction alone provides sufficient
justification for the removal. Grievant failed to
abide by the conditions contained in the "last
chance” agreement, and he failed to provide any
rationale for his absence. 162
Having found abuse, the arbitrator held that
under 24.01, no consideration may be given to
any reduction of the penalty imposed by the
state. 165
Automatic termination: One of the key
components of a disciplinary system is the
employer's duty to make a "fair and objective"
investigation before imposing discipline. The
Employer must make a "good faith" effort to
determine if accusations against employees are
supported by facts by interviewing witnesses and
making a careful investigation to see that both
sides of the story are available and fairly
presented. Here no real investigation was ever
conducted. The so-called investigation report
was not a report of an investigation by a neutral.
Rather, the report contained solely the complaint
of the accuser, who himself had a questionable
record. The only component of an investigation
was the medical examination which produced
evidence to call the accuser’s report into
By contract the employer bears the burden of
proof to establish just cause for the thirty-day
suspension levied against the grievant. 136
In any judgment, the standard of “just cause”
requires that punishment be reasonable in light
of all the circumstances. 137
question. The police chief failed to view or
measure the site, interview other persons in the
area, or test the accusations against the physical
evidence. This lack of investigation by a trained
police officer tainted all subsequent disciplinary
steps and creates a procedural error fatal to the
Employer's position. 167
Progressive discipline: The arbitrator concluded
that 15-day suspension of the Grievant was not
imposed for just cause nor was it progressive as
required by Article 24 of the Contract. The
arbitrator said that the mitigating circumstances
must be considered. First, the Grievant was not
responsible for the events that occurred on his
shift. Second, the other crew members did not
have a reasonable expectation that the Grievant
would intervene during the episode with the
knife. Third, he did not have authority to
intervene as a bargaining unit member, he did
not have authority to discipline employees.
Fourth, the Grievant's personnel file indicates
that he has not received any prior discipline by
the employer. 168
The Employer has not satisfied the burden of
showing either insubordination or fighting or
striking the supervisor. The Grievant did not
intentionally assault the supervisor and even if
he had, removal under the circumstances would
still be excessive. The removal was based on
prior discipline for "similar problems." However,
the Grievant's physical contact with the
supervisor was not sexual in nature and
therefore, is not similar to the prior disciplinary
problem of sexual harassment. The mitigating
circumstances also warrant a lesser discipline
than removal. In addition to the mitigating
factors raised by the Union, the Grievant's upset
condition at the time of the incident provides
some justification for striking the supervisor.
The Grievant's only actionable offense was
leaving work early without leave which the
Grievant had not done previously. Under the
circumstances, the Arbitrator concludes that any
discipline for this offense beyond a three day