by Contract Number (PDF) - OCSEA

arbitrator’s individual concepts of fairness and
equity. An employee’s length and quality of
service and individual mitigating circumstances
attending a case are traditionally regarded as
elements of just cause; and it is not unusual for
an arbitrator to modify or reduce a penalty after
considering those and similar factors. 253
When the parties negotiated the just-cause
protection of employment, they carved out an
exception. They stated in Article 24, 24.01 that
an arbitrator may not modify a termination where
patient abuse is the cause. Grievant is not entitled
to a full blown examination of just cause. In fact,
only a trace of the standard remains for him – the
question of whether or not he committed patient
abuse. If the evidence establishes that he did,
the arbitrator will have no choice but to uphold
the discharge and deny the grievance. Thus, the
union can only prevail if the state fails to meet its
burden of proof. 253
Where “just cause” was not present because the
grievant was summarily dismissed without any
consideration of the grievant’s many years of
high quality service or other mitigating
circumstances, the grievance was nevertheless
denied. By removing arbitral discretion to
modify penalties in a case involving patient
abuse, the parties either pre-defined just cause or
divorced such misconduct from the protections
of just cause. In either case, the removal cannot
be modified once abuse had been found. Section
24.01 prohibits an arbitrator from modifying the
discharge penalty when patient abuse is the
cause. Section 25.03 requires an arbitrator to
apply the negotiated provisions of the agreement
as they are written and intended to be applied,
without additions, subtractions, amendments, or
alterations. It is a mandate the arbitrator must
obey and one which allows no room for
individual concepts of fairness or justice. 253
There is an exception to the general rules of just
cause. In the case of employees dismissed for
proven patient/client abuse the arbitrator does
not have the authority to modify the termination
of the employee committing such abuse. 287
The contractual philosophy is to conserve jobs
and require the employer to exercise every
reasonable effort to correct misconduct. 287
The concept of just cause entails progressive
discipline, that is the inherent right of an
employee to be specifically informed of
perceived deficiencies and to be afforded a
reasonable opportunity to rectify the problem.
288
The sequence from verbal to written reprimand,
suspension and termination is indeed a
progressive disciplinary approach and directly
follows the chain contemplated by Article 24.
288
Arbitrators are contractually directed that they
cannot modify removals of employees found to
have abused individuals in State custody. This
limitation is founding Article 24.01 of the
Agreement. This Article significantly impairs an
employee’s chances for reinstatement when they
have been removed for abuse. There can be no
mitigating factors if the grievant committed
abuse. 291
In abuse cases the grievant is not entitled to have
his/her removal measured by the traditional
elements of just cause. It is common for a
discharge to be modified, not because the
grievant is innocent but because the penalty is
too harsh to comport with just cause. Arbitrators,
under Section 24.01 have limited authority to
modify discipline in abuse cases. If the grievant
committed abuse and there is just cause for any
discipline at all, there can be no consideration of
the grievant’s past work record or the length of
grievant’s service. The removal must stand. 292
While the Agreement eliminates just cause to a
large extent in abuse cases, it does not dispose of
it entirely. Employees still have entitlements
under the standard, and an agency that ignores
them does so at its own peril. If the grievant was
denied contractual or elemental due process,
his/her claim for reinstatement and monetary
relief will be granted whether or not he/she
abused prisoners. 292
It was found that the grievant did abandon her
job but there were mitigating factors: No prior
discipline and the grievant’s unclear disability
situation. 295
Discipline, commensurate and progressive
discipline, is designed to have a “corrective”
educational effect, not just on the recipient but
on all employees. If the discipline meted out to
employees differs or varies arbitrarily or with
discrimination among employees the corrective
effect is lost. Moreover, the “notice” elements
of procedural fairness are also destroyed. An