by Contract Number (PDF) - OCSEA

The grievant was a Corrections Officer who was
enrolled in an EAP and taking psychotropic
drugs. He got into an argument with an inmate
who had used a racial slur and struck the inmate.
The grievant was removed for abuse of an
inmate and use of excessive force. The arbitrator
found that the grievant struck the inmate with no
justifying circumstances such as self defense, or
preventing a crime. The employer, however,
failed to prove that the grievant knowingly
caused physical harm as required by Ohio
Revised Code section 2903.33(B)(2), because
the grievant was taking prescription drugs. The
grievant’s removal was reduced to a thirty day
suspension because the employer failed to
consider the grievant’s medication. The grievant
was not faulted for not notifying the employer
that he was taking the psychotropic drugs
because he had no knowledge of their possible
side effects. Thus, the use of excessive force was
proven, but excessive use of force is not abuse
per se. 368
The grievant was involved in a check-cashing
scheme involving stolen state checks from
another agency, along with two other state
employees. His role was that of an intermediary
between the person who stole, and the person
who cashed the checks. He served 45 days of a
criminal sentence. The grievant was found to be
deeply involved with the scheme and received a
substantial portion of the proceeds. The
violations occurred while the grievant was offduty,
however they were found to be connected
to the grievant’s job as theft of state property is
harm to the employer. The grievant was found
to be not subjected to disparate treatment when
compared to other employees not removed for
absenteeism while incarcerated: The other
employees cited for disparate treatment purposes
hadn’t stolen state property: 370
The grievant began his pattern of absenteeism
after the death of his grandmother and his
divorce. The grievant entered an EAP and
informed the employer. He had accumulated 104
hours of unexcused absence, 80 hours of which
were incurred without notifying his supervisor,
and 24 hours of which were incurred without
available leave. Removal was recommended for
job abandonment after he was absent for three
consecutive days. The predisciplinary hearing
officer recommended suspension, however the
grievant was notified of his removal 52 days
after the pre-disciplinary hearing. The arbitrator
found that the employer violated the contract
because the relevant notice dates are the hearing
date and the date on which the grievant receives
notice of discipline. Other arbitrators have
looked to the hearing date and decision date as
the relevant dates. Additionally, the employer
was found to have given “negative notice” by
overlooking prior offenses. The arbitrator
reinstated the grievant without back pay and
ordered him to enter into a last chance agreement
based upon his participation in EAP. 371
The grievant injured his back in a car accident
and was off work for six months while receiving
disability benefits. His doctor released him to
work if no lifting was allowed. Because the
position required lifting, he either left or was
asked to leave work. He failed to call in for three
consecutive days and was removed for job
abandonment. The union requested arbitration
more than 30 days after the date on the Step 3
response. No evidence was offered on the
interpretation of 25.02, and as to when the union
received the Step 3 response. The employer
failed to overcome the presumption that a
grievance is arbitrable. The arbitrator found just
cause because: the grievant has served a 5 day
suspension for failing to follow call-in procedure
while on disability, his doctor’s statement that he
should avoid lifting was ambiguous, and he
failed to respond to the employer’s attempts to
contact him. Filing for Worker’s Compensation
was not found not to substitute for contact with
the employer. 373
The grievant was a Corrections Officer and had
received and signed for a copy of the agency’s
work rules which prohibit relationships with
inmates. The grievant told the warden that she
had been in a relationship with an inmate prior to
her hiring as a CO. Telephone records showed
that the grievant had received 197 calls from the
inmate which lasted over 134 hours. Although
the grievant extended no favoritism toward the
inmate, just cause was found for the removal.
374
The grievant had received up to a ten day
suspension and had been enrolled in two EAP
programs. She was late to work for the third time
within a pay period. The arbitrator found that
just cause did exist for the removal as the
grievant had received four prior disciplinary
actions for absenteeism and the employer had
warned her of possible removal. The fact that the
employer reduced the most recent discipline did