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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
employee cannot be on “notice” of consequences, if the consequences vary unreasonably or arbitrarily. 296 The only mitigating factor in this case was the grievant’s seven years of service, but the seven years contained discipline. 296 A disciplinary record weighs against mitigation even though the grievant had 17 years of service. Mitigation is further disfavored by the grievant’s repeated violent threats against the witnesses. While such behavior is not part of the removal decision it does go to the issue of mitigation. 298 Lack of mitigation in abuse cases. 302 The most important question to be answered in any discipline case involving just cause is this: What amount of discipline is likely to correct the employee’s behavior and restore him/her to an acceptable level of performance? 302 Unilateral agency rules do not define just cause. Agency rules are designed to give fair warning to employees of what types of behavior is deemed unacceptable. Agency rules may be entitled to a measure of arbitral deference, but they may never take the place of just cause. 305 An agency rule may be fair on its face but unjust in its particular application, especially when the employer applies the rule without attention to mitigating factors. If the discipline falls outside the scope of just cause the arbitrator must intervene. 305 The grievant was fired solely because his prison sentence forced him to violate a work rule. The grievant was incarcerated for drunk driving and did not report to work for three consecutive days which the employer deemed job abandonment. The decision to execute the penalty gave no consideration to the length and quality of the grievant’s work record or any other mitigation factors. Despite the employer’s arguments to the contrary, the action was automatic. The employer argued that the rule was reasonable on its face and the arbitrator agreed. The arbitrator also decided that the demands of just cause are almost never met when discharge is based entirely on a rule violation. Management must be cautious in inflicting the penalty. It must perform a judicious study of the employee, his/her record, and the distinctive circumstances attending the misconduct. The employer must determine whether or not elemental justice and the true need of the employer would be better served by corrective rather then terminal discipline. It must bear in mind that just cause standards circumscribe management rights; they do no expand them. Just cause means that the employer can remove only those employees that are not salvageable. 305 When the employer argued that the severe discipline of removal was necessary to preserve the mission of the agency, the burden of proof on this issue was on the employer. The argument that the removal was justified by the need to set an example for other employees was dismissed by the arbitrator. Employees covered by just cause may be disciplined for their own misconduct, but may not be singled out and punished with special severity as an example to Others. 305 The arbitrator decided there was not just cause for termination of the grievant for abuse. The grievant did fail to report his own use of physical force and to report another employee’s abusive actions. Although these are serious violations removal would not follow the Agreement’s progressive and commensurate discipline criteria: 308 NOTE: The Union was successful in reducing the employee's discipline from a removal to a 180 day suspension. The State of Ohio took the position that the 180 day suspension is a 180 working day suspension. The OCSEA position was that the discipline should be a 180 calendar day suspension. OCSEA appealed this case to the Court of Common Pleas to resolve the dispute. The Court ruled in OCSEA's favor and the State of Ohio did not appeal. The grievant, a Correctional Officer, was found to have intentionally exposed himself to a bus load of female inmates. This behavior occurred while the grievant was off duty. Off-duty behavior is normally not the employer’s business. To allow discipline, a clear nexus must exist between the behavior and the job. The arbitrator found that nexus in this case. The grievant charged with the safekeeping of inmates deliberately chose while in uniform, a group of female inmates as the victims of his indecent behavior. The end result would be that female inmates not knowing which male Correction Officer was involved could justifiably fear that
Page 1 and 2:
INDEX BY CONTRACT SECTION ARTICLE 1
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this case, one cannot conclude that
Page 5 and 6:
Muskingum Counties that were consol
Page 7 and 8: in Article 24.04 as a meeting. The
Page 9 and 10: Article 2.01 requires that neither
Page 11 and 12: The Arbitrator found that when the
Page 13 and 14: hardship when an employee was on Un
Page 15 and 16: determined that through Article 5,
Page 17 and 18: The grievant had a thirty-day time
Page 19 and 20: Management established a list of in
Page 21 and 22: the FR clothing during these five m
Page 23 and 24: 11.11 - Concern for Pregnancy Hazar
Page 25 and 26: of the contract occurred. Based upo
Page 27 and 28: “In paragraph 3…the word “win
Page 29 and 30: overtime. The arbitrator found that
Page 31 and 32: an educated guess, the grievance mu
Page 33 and 34: 2. The Agreement also designates th
Page 35 and 36: which this particular agreement did
Page 37 and 38: In this case the Union grieved that
Page 39 and 40: Arbitrator held that the Grievant f
Page 41 and 42: when he was placed back into his fo
Page 43 and 44: selected because she was within ten
Page 45 and 46: she was in Section 17.04 applicant
Page 47 and 48: for a new DCS Assessment. The union
Page 49 and 50: won is not sufficient to prove incr
Page 51 and 52: Ohio Revised Code 145.298 requires
Page 53 and 54: 18.04 (formerly Article 18.03 of 19
Page 55 and 56: establishes that the just cause sta
Page 57: suspension would be excessive and u
Page 61 and 62: grievant was a nine-year employee w
Page 63 and 64: not lead to the conclusion that the
Page 65 and 66: grievant’s allegation that the si
Page 67 and 68: etween the grievant and his supervi
Page 69 and 70: her car on state property and she p
Page 71 and 72: The Employer had just cause to remo
Page 73 and 74: The employer had just cause to remo
Page 75 and 76: a period of about 10-15 minutes whe
Page 77 and 78: commodities was completely lacking
Page 79 and 80: answer questions, even after the De
Page 81 and 82: offenders. The incident was recorde
Page 83 and 84: judgment and his less than credible
Page 85 and 86: employees and the Union are aware t
Page 87 and 88: once the Youth was on the ground. C
Page 89 and 90: enroll in an EAP program within fiv
Page 91 and 92: The parties did not intend that pre
Page 93 and 94: progressive and commensurate discip
Page 95 and 96: Bureau of Employment Services, had
Page 97 and 98: jurisdiction to resolve differences
Page 99 and 100: language toward a number of inmates
Page 101 and 102: a motor vehicle with an inoperative
Page 103 and 104: The grievant was removed for allege
Page 105 and 106: her work. The arbitrator stated tha
Page 107 and 108: meeting. The evidence also suggeste
Page 109 and 110:
egarding IME’s within ODNR. The a
Page 111 and 112:
individual under the supervision of
Page 113 and 114:
arbitrator noted that if the behavi
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particularly in light of layoffs, b
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“extraordinarily patient with the
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and he had remained in contact with
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credible. Evidence presented indica
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oad, commonsensical guidelines abou
Page 125 and 126:
aware of the grievant’s poor work
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procedural error. He found that whe
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youth at his facility. The evidence
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COs were aiding in investigations a
Page 133 and 134:
The grievant was involved in a resp
Page 135 and 136:
with sleep apnea and begun treatmen
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that he would have accrued during t
Page 139 and 140:
years of state service. The arbitra
Page 141 and 142:
workers who were aware of the condu
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criminal Assault and Falsification.
Page 145 and 146:
held that removal was unreasonable,
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was knowledgeable of the corrective
Page 149 and 150:
24.04 - Pre-Discipline supervisor.
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equire support before one can estab
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is considered when fashioning a rem
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The grievant was an investigator wi
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egarding the conduct of a superviso
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The grievant was a Corrections Offi
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considered the grievant’s guilty
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24.05. The Arbitrator agreed with t
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The grievant was reinstated to her
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consider that the co-worker may hav
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grievant’s removal was upheld, an
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once the Youth was on the ground. C
Page 173 and 174:
undermines the purpose of the EAP p
Page 175 and 176:
exercised its discretion in an arbi
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the possible violation was not brou
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irrelevant for the purpose of calcu
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grievance was held arbitrable, (the
Page 183 and 184:
prohibited from using the grievance
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employee in her right to bring a gr
Page 187 and 188:
26, 1994. The language of Contract
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y the grievant, would be compensabl
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committed other acts of neglect of
Page 193 and 194:
filed a grievance arguing that assi
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guarantee that a document has suffi
Page 197 and 198:
25.08 because the union made excess
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26.03 Work on Holidays No dispute e
Page 201 and 202:
ARTICLE 28 - VACATIONS 28.01 - Rate
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contains various interventions and
Page 205 and 206:
comported entirely with her initial
Page 207 and 208:
ARTICLE 32 - TRAVEL 32.02 - Persona
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ARTICLE 36 - WAGES 36.02 - General
Page 211 and 212:
37.04 - In-Service Training Under 3
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arbitrator found the grievance arbi
Page 215 and 216:
43.03 - Mid-Term Contractual Change
Page 217 and 218:
permanent part-time employees earn
Page 219 and 220:
she was evaluated below average in
Page 221 and 222:
“similar or related series” as
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