by Contract Number (PDF) - OCSEA

More documents

Recommendations

Info

the Officer in question might have power over them. Sexual abuse of prisoners by corrections Officers is not unknown. Although the removal was the harshest penalty in the disciplinary grid, the factors weighed by the Warden were reasonable and fair. The grievant’s lack of remorse or any indication that the grievant understood and was seeking help for his problem ruled against mitigation. 309 In a dispute governed by just cause principles there is a rudimentary issue which overrides everything else. It is: Was the aggrieved employee guilty of the misconduct justifying discipline? Actually, the question contains two parts; arbitral examination must start with whether or not the employee committed the misconduct. The examination should be circumscribed by the employer’s allegation(s) against the employee. An individual cannot be legitimately punished for something for which he/she was not charged. The employer’s charges seek arbitral approval of the grievant’s removal on the general sweeping grounds that the grievant was a bad employee. The arbitrator declared several of the State’s contentions irrelevant because they did not impact on the charge of not following the proper sick-leave notification requirements. 310 The Union’s argument was that no employee, including the grievant, was ever required to satisfy sick-leave notification requirements. This argument went unrebutted by the State and is a complete defense. New and unprecedented rules must be conveyed before they can be enforced. The Labor Relations Officer did not properly inform the grievant. Unable to reach the grievant since the grievant was too ill, the Officer told the Union Steward of the new procedure. The Steward testified that he was not informed of the new call-off requirement. Rather he was just told of the proper leave request forms that the grievant had to fill out. There was not effective communication; as a result, the grievant could not properly be held responsible for his violation. 310 The arbitrator believed that provided just cause requirements are met and the discipline is within the bounds of reason, the arbitrator should not substitute their judgment for that of the employer. 313 Even if the unauthorized relationship is not extensive it could give the appearance of wrong doing and leave the employee open to manipulation by inmates and distrust by fellow coworkers. An officer’s reputation influences his/her ability to perform his/her job through its impact on relationships with inmates and coworkers. The rule prohibiting unauthorized off duty relationships has a nexus with employment. 313 When a Corrections Officer may have learned of a rowboat for sale from an inmate and went to the inmate’s wife house to purchase the boat the Officer did violate work rule 40 by having an unauthorized relationship, but his actions did not warrant termination:. 313 The past cases of different treatment for work rule 40 violations (unauthorized relationships) show the flexibility of discipline. The arbitrator found that there should have been flexibility in this case. The grievant should not have been removed. His violation involved a single financial transaction with only a tenuous and limited connection to an inmate or his family member. The grievant was also a three year employee with a good work record. 313 A basic requisite of just cause is a fair investigation conducted by the employer prior to the imposition of discipline. Even though the employer turned the actual investigation over to a police officer, a reasonable action in a prison escape situation, such delegation does not relieve the employer of a duty to review that investigation for accuracy and fairness. The investigation was determined by the arbitrator to be conducted unfairly. The trooper in charge focused all his efforts on proving the grievant was guilty and did not even conduct a true investigation. 314 The Hearing Officer at the Pre-Disciplinary Hearing weighed the grievant’s silence as a factor against the grievant. The grievant was charged with a crime (aiding inmates to escape); he had a constitutional right to silence; he exercised it wisely. His silence should not be used against him. The employer has the burden of proving just cause, the grievant need no prove the State’s case for them. 314 Although alteration of payroll records is a serious offense, one for which the grievant received a three day suspension in the past, removal is neither commensurate nor progressive. There were mitigating factors. The
grievant was a nine-year employee who does quality work and is highly skilled. The grievant also trained others and received various citations for his work. 318 NOTE: OCSEA was successful in getting the grievant's removal reduced to a suspension at arbitration. The State moved to vacate the Arbitrator's decision in the Court of Common Pleas. The Court of Common Pleas dismissed the State's appeal on the basis of late filing by the State. The State then appealed this case to the Court of Appeals. While the case was pending in the Court of Appeals, the parties reached a settlement agreement. The grievant sexually harassed two women when he exposed himself and grabbed one woman near her genitals and rubbed her crotch. The grievant’s defense was unclear. At the hearing the grievant claimed he only touched the one woman on the thigh yet in the closing the advocate for the Union said that the grievant apologized for his actions. The arbitrator could not find evidence of the grievant’s apology. The grievant’s claim that the women consented was also dismissed. Prior consent to sexual events is not perpetual consent. Both women testified that they neither consented to nor solicited the grievant’s behavior. There was no evidence that the grievant wanted or was amenable to correction. There are aggravating factors. At the hearing the grievant lied, blamed others and steadfastly refused to take responsibility for his acts. There is no evidence that corrective discipline would in fact “correct” his behavior. 324 The grievant did in fact serve improperly prepared food to the client. However, the client did not choke to death on that food item so the grievant’s actions did not directly result in harm to the client. A critical element of just cause is that the employer give notice to the employee of the disciplinary consequence of his or her conduct. If the impermissibility of the conduct is so obvious that employees should have known it was unacceptable, the notice requirement is not a barrier to a showing of just cause: 330 The employer prejudices its case against the grievant by introducing allegations where not one shred of evidence connects the grievant with the incident. The grievant was guilty of violation of the work rule “neglect of duty.” She had a duty to communicate with a fellow worker sufficiently to operate vehicles and machines safely. She knew how dangerous tailgates were, and she allowed herself to be careless – releasing the tailgate before the other employee was ready and crushing the coworker’s thumb. There were numerous mitigating factors. The coworker’s previous behavior and the failure of adequate supervisory guidance. 333 The employer cited an ORC section 124.34 which is a lesser standard than just cause for dismissal. The citation does not appear to have prejudiced the grievant or the Union in this case because the matter proceeded to arbitration and has been heard pursuant to the just cause standard of the Agreement. 356 The way in which the agency controlled the hearing and the speed with which it imposed the removal indicate a cavalier approach to just cause requirements. The question the employer was obliged to ask and answer before deciding on discipline was: In view of the misconduct, its aggravating and mitigating factors, what amount of discipline is likely to be corrective? When an employer acts against an employee precipitously, in knee jerk fashion, its actions become suspect. Summary discipline opens the door for arbitral intrusion. It licenses the arbitrator to substitute his/her judgment for management’s. It is up to the arbitrator to perform the employer’s job when the employer fails to perform it. Second guessing by an arbitrator should be expected when management neglects its disciplinary duties. 357 The grievant was not at all sorry for what he had done. He exhibited pride when describing the fight between him and the foreman. The grievant is not a candidate for correction. 357 The grievant’s misconduct was turned up almost two years after the incident. The Union argued that his discipline, a thirty day suspension, violated Section 24.04 of the Agreement. The discipline may not be used as a punishment. The arbitrator decided that it is reasonable to presume that a penalty issued years after the occurrence will not correct the behavior which is sought to be changed; its sole or predominant effect will be retribution. The presumption, however is a rebuttable one. Grievant’s testimony revealed that her violation was never corrected; she believed she was entitled to recommend her unqualified relatives because the boss did it. The discipline continued to have a corrective element. 358
Page 1 and 2:
INDEX BY CONTRACT SECTION ARTICLE 1
Page 3 and 4:
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 and 58: suspension would be excessive and u
Page 59: employee cannot be on “notice”
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
Page 115 and 116:
particularly in light of layoffs, b
Page 117 and 118:
“extraordinarily patient with the
Page 119 and 120:
and he had remained in contact with
Page 121 and 122:
credible. Evidence presented indica
Page 123 and 124:
oad, commonsensical guidelines abou
Page 125 and 126:
aware of the grievant’s poor work
Page 127 and 128:
procedural error. He found that whe
Page 129 and 130:
youth at his facility. The evidence
Page 131 and 132:
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
Page 137 and 138:
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
Page 143 and 144:
criminal Assault and Falsification.
Page 145 and 146:
held that removal was unreasonable,
Page 147 and 148:
was knowledgeable of the corrective
Page 149 and 150:
24.04 - Pre-Discipline supervisor.
Page 151 and 152:
equire support before one can estab
Page 153 and 154:
is considered when fashioning a rem
Page 155 and 156:
The grievant was an investigator wi
Page 157 and 158:
egarding the conduct of a superviso
Page 159 and 160:
The grievant was a Corrections Offi
Page 161 and 162:
considered the grievant’s guilty
Page 163 and 164:
24.05. The Arbitrator agreed with t
Page 165 and 166:
The grievant was reinstated to her
Page 167 and 168:
consider that the co-worker may hav
Page 169 and 170:
grievant’s removal was upheld, an
Page 171 and 172:
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
Page 177 and 178:
the possible violation was not brou
Page 179 and 180:
irrelevant for the purpose of calcu
Page 181 and 182:
grievance was held arbitrable, (the
Page 183 and 184:
prohibited from using the grievance
Page 185 and 186:
employee in her right to bring a gr
Page 187 and 188:
26, 1994. The language of Contract
Page 189 and 190:
y the grievant, would be compensabl
Page 191 and 192:
committed other acts of neglect of
Page 193 and 194:
filed a grievance arguing that assi
Page 195 and 196:
guarantee that a document has suffi
Page 197 and 198:
25.08 because the union made excess
Page 199 and 200:
26.03 Work on Holidays No dispute e
Page 201 and 202:
ARTICLE 28 - VACATIONS 28.01 - Rate
Page 203 and 204:
contains various interventions and
Page 205 and 206:
comported entirely with her initial
Page 207 and 208:
ARTICLE 32 - TRAVEL 32.02 - Persona
Page 209 and 210:
ARTICLE 36 - WAGES 36.02 - General
Page 211 and 212:
37.04 - In-Service Training Under 3
Page 213 and 214:
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
show all

by Contract Number (PDF) - OCSEA

Create successful ePaper yourself

Delete template?

Save as template?