by Contract Number (PDF) - OCSEA

once the Youth was on the ground.
Considering the severity of the assault,
the Arbitrator found the removal to be
correct. 1020
The Arbitrator held that the Bureau had
just cause to discipline the Grievant for
a willful failure to carry out a direct
order and for her failure to produce a
Physician’s Verification for an absence.
This also constituted an unexcused
absence for the same date. The Bureau
also had just cause to discipline the
Grievant for the improper call-off on a
later day. The Grievant’s refusal to
answer any questions in both
investigatory interviews constituted
separate violations of the fourth form of
insubordination, in that the Grievant
failed to cooperate with an official
investigation. The Arbitrator held that
the record did not support the mitigating
factor that the Grievant’s work was
placed under “microscopic” review.
Nor did the record provide substantial
information that the supervisors were
universally committed to finding any
violations of work rules by the
Grievant. 1021
The employer removed the Grievant
contending that he failed to protect a
Youth; that he placed the Youth on
restriction for seven to ten days without
a Supervisor’s approval in order to
conceal the Youth’s injuries; and that he
failed to report Child Abuse. The
Arbitrator held that the discipline
imposed was without just cause. The
Arbitrator found no evidence that the
Grievant failed to protect the Youth.
The evidence did not support the
contention that the Grievant failed to
see that the Youth got medical attention.
The Arbitrator opined that “for the
employer to assert that the Grievant
should have substituted his judgment
for that of the medical staff on this set
of facts is unrealistic.” The Arbitrator
also found that there was clear evidence
that Unit Managers receive no training
and there is no written policy on
restrictions. The Arbitrator found there
was no evidence that the Grievant failed
to cooperate or to file other reports as
required to report Child Abuse.
Management was aware of the incident.
If the employer wanted the Grievant to
complete a specific form, per its own
policy, it should have given the
Grievant the form. 1022
The pre-disciplinary hearing was not
conducted until three months after the
investigation was concluded. However,
the Arbitrator held that there was no
evidence that the delay had an adverse
impact on the union’s case. The
Arbitrator found the Grievant guilty of
dishonesty. His incident report failed to
mention his assault on the Youth or any
allegations against another JCO. The
Arbitrator found that it was clear the
Grievant used inappropriate and
unnecessary force on the Youth. The
Grievant knew the difference between
Active and Combative Resistance. The
Youth’s hands were underneath him and
the other witnesses support the
testimony of the JCO who said he saw
the Grievant hit the Youth six (6) to
eight (8) times. The Arbitrator held that
the discipline was commensurate with
the offense and the Grievant was
discharged for just cause. 1023
While on a hunting trip and staying in
Mt. Vernon, the Grievant was arrested
for operating a vehicle while impaired.
The Grievant became very belligerent
and verbally abusive. A newspaper
report regarding the incident was later
published in Mt. Vernon. The
Arbitrator held that the Employer had
just cause to remove the Grievant. The
Arbitrator was unwilling to give the
Grievant a chance to establish that he
was rehabilitated. Some actions or
misconduct are so egregious that they
amount to malum in se acts--acts which
any reasonable person should know, if
engaged in, will result in termination for
a first offense. Progressive discipline
principles do not apply in these
situations and should not be expected.
The Employer established a nexus for
the off-duty misconduct. The
Grievant’s behavior harmed the
reputation of the Employer. It would
be difficult or impossible to supervise
inmates who may find out about the
charges and their circumstances. This
would potentially place other officers in