by Contract Number (PDF) - OCSEA

etween the grievant and his supervisor, the
employer stacked charges by basing discipline
on events which occurred prior to the last chance
agreement, and that the discipline did not afford
the grievant an opportunity to correct his
behavior. The removal was upheld despite the
employer’s acts because of the last chance
agreement, but the grievant was awarded 4
weeks back pay because of the employer’s
failure to comply with the union’s discovery
requests. 412
The grievant was a Correction Officer who had
an alcohol dependency problem of which the
employer was aware. He had been charged twice
for Driving Under the Influence, which caused
him to miss work and he received a verbal
reprimand. The grievant was absent from work
from May 18th through the 21st and was
removed for job abandonment. The arbitrator
found that the grievant’s removal, following a
verbal reprimand, was neither progressive nor
commensurate and did not give notice to the
grievant of the seriousness of his situation. It was
also noted that progressive discipline and the
EAP provision operate together under the
contract. The grievant was reinstated pursuant to
a last chance agreement with no back pay and the
period he was off work is to be considered a
suspension. 413
The grievant was a Therapeutic Program Worker
who was removed for abusing a client. The client
was known to be violent and while upset and
being restrained, he spat in the grievant’s face.
The grievant either covered or struck the client in
the mouth and some swelling and a small scratch
were found in the client’s mouth. The grievant
had served a 70 day suspension for similar
behavior. The arbitrator found that the employer
committed procedural violations by not
disclosing the incident report and the client’s
progress report despite the employer’s claim of
confidentiality. The employer’s witnesses were
found to be more credible than the grievant. The
grievance was denied. 414
The grievant was a Psychiatric Attendant who
had been mandated to work overtime. The
grievant notified the employer that he would be
unable to work over because he had to meet his
children’s school bus and was unable to find a
substitute, and he signed out at his normal time.
The grievant had two prior suspensions for
failure to work mandatory overtime. Ordinarily,
the “work now grieve later” doctrine applies to
such situations, however the arbitrator noted that
certain situations alter that policy. The grievant
gave a legitimate reason for refusing the
overtime and the employer was found to have
abused its discretion in not finding a substitute.
The grievant was found to have a history of
insubordination and an inability to arrange
alternate child care. Upon a balancing of the
parties actions, the arbitrator held that there was
no just cause for removal, and reduced the
penalty to a 60 day suspension. 415
The grievant was a custodial worker at a
psychiatric hospital. The grievant asked a patient
to smoke outside rather than inside a cottage.
The patient told the grievant that he would not,
dropped to his knees and repeated his statement
as was the patient’s habit. The patient repeated
this action later in the day and grabbed the
grievant’s leg. The grievant yanked his leg free,
the client accused the grievant of kicking him
and the patient was found to have injuries later in
the day. The grievant was removed for abuse of a
patient, and criminal charges were brought. The
criminal charges were dropped pursuant to a
settlement with the Cuyahoga County court in
which the grievant agreed not to contest his
removal. When the grievance was pursued, the
employer asked for criminal charges to be
reinstated. The charges could not be reinstated,
but the grievant agreed not to sue the employer.
The grievance was held to be arbitrable despite
the settlement between the grievant and the
county court. Had the settlement been a three
party agreement including the employer,
dovetailing into the grievance process, it would
have precluded arbitration. Additionally, after
filing a grievance it becomes the property of the
union. The grievance was sustained because the
employer failed to meet its burden of proof that
the grievant abused a patient. The arbitrator
awarded full back pay less interim earnings, back
seniority, back benefits, and that the incident be
expunged from the grievant’s record. 416
The grievant took a magnetic tape containing
public information home, which was against
agency rules. She intended to return the tape but
it became lost, and she was charged with theft of
state property. The tape was later recovered by
the Highway Patrol during an unrelated
investigation. The grievant was transferred to
another position without loss of pay or reduction
in rank and suspended for 30 days. The arbitrator
held that the employer failed to prove that the
grievant intended to steal the tape (Hurst