by Contract Number (PDF) - OCSEA

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