by Contract Number (PDF) - OCSEA

Article 2.01 requires that neither the Union nor
the State discriminate on the basis of race, sex,
creed, color, religion, age, national origin,
political affiliation, disability, or sexual
orientation. The Arbitrator held that the disparate
treatment of two employees’ Employee
Assistance Program requests did not necessarily
constitute discrimination. The employee making
such a claim must prove that the treatment of
his/her request was motivated by one of the
aforementioned issues. 605 (1994-
1997contract)
While the Grievant claimed to have the
necessary background in research methods in her
summary of her qualifications, the information
contained in her application and resume did not
support her claim. She failed to show any
experience with operational, mathematical,
analytical, or statistical research methods. The
Arbitrator rejected the claim that when the state
denied her an interview for the Planner 3
position and awarded it to someone else, it
engaged in sex and/or age discrimination in
violation of Article 2. A large portion of the
employees in the Emergency Management
Agency are women and three of the top five
leadership positions are held by women. The
Arbitrator held that the Grievant failed to show
that she satisfied the minimum qualifications for
the Planner 3 position when she applied. The
grievance was denied. 938
Insubordination is a serious offense. The
Grievant’s misconduct took place in a
correctional facility where following orders is
particularly important. The very next day the
Grievant violated policies and procedures when
she left a youth unattended. The Grievant’s
disciplinary history was a major factor
supporting termination—she had received a 12-
day suspension on January 19, 2005. The
Arbitrator rejected the claims that the Grievant
was the victim of disparate treatment; that the
imposition of discipline was delayed; and that
the employer was “stacking” charges against the
Grievant in order to justify her termination. The
Union was unable to show how the delay
prejudiced the Grievant’s case or violated the
contract. The decision to combine two incidents
appeared to be reasonable. The disciplinary
record of another JCO involved in leaving the
youth unattended justified the different
treatment. The Arbitrator concluded that the
Grievant’s discharge was for just cause and was
in compliance with the collective bargaining
agreement. 942
The grievant was a CO who was charged with
allegedly giving preferential treatment to an
inmate and having an unauthorized relationship
with an inmate. The grievant admitted at
arbitration that on occasion he provided an
inmate cigars, scented oil and food from home
and restaurants. He admitted that he accepted
cigarettes from inmates who received
contraband. The arbitrator found that the
grievant was removed for just cause. His
misconduct continued for an extended period of
time; thus his actions were not a lapse in
judgment. He attempted to conceal his
misconduct by hiding food so the inmates could
find it. Therefore, the grievant knew what he
was doing was wrong. The grievant accepted
“payment” for the contraband when he accepted
cigarettes in exchange for the food and other
items he provided to the inmates. The arbitrator
found that grievant’s actions compromised the
security and safety of inmates and all other
employees at the facility. 953
The grievance was granted in part. The Grievant
was reinstated, but was not entitled to back pay
or any other economic benefit. The Grievant
must enter into a Last Chance Agreement with
DPS for two years and must successfully
complete an appropriate program under the
OEAP guidelines. If the Grievant failed to
comply with any of the conditions he would be
subject to immediate removal. The Employer
waited 55 days to notify the Grievant that a
problem existed with two assignments. The
Arbitrator agreed that this delay was
unreasonable under Article 24.02 and was not
considered grounds to support removal. Given
that his direct supervisors considered the
Grievant a good worker, any conduct which
could accelerate his removal should have been
investigated in a timely manner. The Arbitrator
found that sufficient evidence existed to infer
that the Grievant’s conduct surrounding one
incident--in which proper approval was not
secured nor was the proper leave form
submitted--was directly related to a severe
medical condition. Twenty one years of
apparent good service was an additional
mitigating factor against his removal. DPS met
its burden of proof that the Grievant violated
DPS’ Work Rule 501.01(C) (10) (b) on two
dates and that discipline was appropriate, but not
removal. However, as a long-term employee the