by Contract Number (PDF) - OCSEA

suspension would be excessive and
unreasonable. 73
The disciplinary action cannot be mitigated by
the Grievant's performance and attendance
because the offense itself has its own
consequences. If the penalty were reduced
because the Grievant did not knowingly bring
the items onto the grounds, the unit's policy
would be weakened and an unsafe work
environment would be created. Therefore, due to
the severity of the Grievant’s offense and the
type of Institution involved. Removal was
appropriate. 174
When just cause is the issue, the ordinary
presumption is that the employer must establish
both the cause and the ethical justification for
discipline. The parties to this dispute have taken
the presumption a step further, turning it into a
contractual mandate in Section 24.01. 183
To establish just cause in the case the state must
clearly and convincingly show:
1. Acts by the grievant
2. which constitute the violations
charged
3. and that the removal of the grievant
was consistent with
a.The Commission’s
progressivedisciplinary Guidelines, and
b. Labor agreement requirements,
particularly sections 24.02 and
24.04.
Furthermore, removal cannot be arbitrary,
unreasonable or discriminatory under the
circumstances of this case. 190
Under 24.01, all discipline of any nature
whatsoever is to be measured against just cause.
Under 24.02, most discipline must be
progressive and follow four steps. The
requirements are separate and distinct, but just
cause is the overriding consideration.
Progressive discipline cannot subsume just
cause. The disciplinary priorities are the other
way around. In other words, the fact that the
employer strictly follows progressive-discipline
steps does not automatically assure that any or
all of the disciplinary impositions will be for just
cause; and discipline is not for just cause unless
it is corrective. Progressive penalties which are
demonstrably punitive and noncorrective will be
set aside by arbitrators. 213
Section 24.01 provides that if there is found
patient abuse, discharge is the only appropriate
penalty. Neutrals are afforded no discretion to
modify penalties. However, in order for the
discharge penalty to be implemented, there must
be a finding of patient abuse. 216
The arbitrator found the removal order defective
where it contained different particular violations
that the pre-disciplinary hearing notice. The
latter document referred to one insubordinate
event but the removal order referred to several.
This circumstance failed to provide the grievant
with proper and timely notice as required by
24.01 and 24.04. This may have prevented a full
and exact defense for the entire episode. 220
The employer violated 24.01 by imposing
discipline under a directive not clearly in force at
the time of the incident and different from the
directive specified on the notice of investigation.
While the employer has the right to promulgate
reasonable work rules, it cannot deprive
employees or the union rights guaranteed to
them under the contract. Nor can it initiate
discipline under one set of work rules and
complete it under another when the results is to
the employee’s disadvantage. 227
The word “abuse” in 24.01 is not defined, nor is
it referenced to another contract section or the
code. Abuse has varying definitions among
agencies. However, abuse in 24.01 is a
significant word because once abuse is found,
the arbitrator loses power to modify the
termination. Thus, in the context of the contract,
the work “abuse is latently ambiguous – that is,
the work has at least two plausible meanings.
The duty of the arbitrator is to define the word as
“intended” by the parties. The arbitrator is clear
that abuse in the contract has to be a singular
clear standard and cannot be defined each time
by a different agency’s standard. The finding of
abuse under 24.01 is an exceedingly powerful
finding and must be a firmly fixed lodestar. The
arbitrator is very persuaded by the cogent
opinion of Arbitrator Pincus (G-87-00 (A) 10-
31-87) and the persuasive elaboration by
arbitrator Michael: 238 − Section 24.01 requires
that discipline be premised on just cause, and it
charges the Employer with the burden of proving
that the standard has been met. In most disputes
involving removals, suspensions, or reprimands,
this provision grants arbitrators a wide range of
matters to consider. The term, “just cause” is
expansive, amorphous, and often defined by an