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eceived suspensions and/or other disciplinary action far short of removal for similar conduct. Therefore, the Arbitrator held that discipline was warranted, but the removal was without just cause. 1037 contrary to the accepted view of Arbitrators regarding progressive discipline. Also, the agency policy stated that “discipline does not have to be for like offenses to be progressive.” 1040 The Grievant was involved in an incident in which a Youth was injured during a restraint. The Employer asserted that the report written by the Grievant was worthless and inaccurate. The entire thrust of the Employer’s argument was based upon proximity and the “culture” at the Facility. The mere fact of proximity does not mean you saw or heard something. This is particularly true if you are engaged in trying to restrain someone. The Employer has no direct evidence that the Grievant saw anything. The Employer contended that the Grievant should have protected the Youth; however, the Arbitrator found that the Employer had no evidence as to how this should have been done. In most arbitrations, the Employer offers evidence as to what the Grievant should have done. The Grievant was not placed on Administrative Leave, nor was he placed in a “No Youth Contact” status. It is a direct contradiction to claim the Grievant was guilty of such severe rule infractions that he should be removed and then to have ignored him for ninety (90) days. The Arbitrator also found no evidence to support the Employer’s contention that there is a “culture” at the Facility that causes cover up. 1039 The Arbitrator held that despite the Grievants 19 ½ years of service, her extension of her break, and more importantly, her dishonesty in the subsequent investigation, following closely her ten-day suspension for insubordination, gave him no alternative, but to deny the grievance and uphold the removal. The Arbitrator rejected the argument that the removal was inconsistent with progressive discipline because dishonesty and insubordination are different offenses. The Arbitrator found this contention 24.02 - Progressive Discipline Does not require management to follow a sequence of disciplinary actions as listed in this section. Only requires that the discipline must be one of the forms enumerated and must be commensurate with the offense. 1 Generally speaking, arbitrators will require progressive discipline if it is mandated by the contract. 7 “Malum in se” offenses are generally excluded from progressive discipline. These are serious offenses such as “theft, striking a foreman, and malicious destruction of company property.” Absenteeism caused by taking sick leave, when employee’s sick leave was used up and by failure to submit proper leave request forms is not a “malum in se” offense. Thus, the agreement’s progressive discipline provision requires that grievant receive a suspension prior to being removed for such an offense. 7 The Agreement’s progressive discipline provision requires that a suspension precede a removal except for “malum in se” offenses. 7 Employer may reasonably begin with suspension or removal when the severity of the offense merits such discipline. 30 The parties clearly intended a sequence of events [disciplinary actions] to occur: Verbal reprimand, Written reprimand, suspension, termination. 46 Where a written reprimand has been given, the next stage of discipline (suspension) is appropriate even though no verbal reprimand was ever issued. 46
The parties did not intend that previous disciplinary action would be ignored. 46 Where the employer has published guidelines for timeliness in steps of the disciplinary process which were presumably relied upon by employees, since 24.02 requires that disciplinary action be initiated as soon as is reasonably possible and directs that the arbitrator consider “timeliness of the Employer’s decision to begin the disciplinary process, and since Just cause under 24.01 requires fairness in the imposition of discipline, having promulgated the guidelines, the employer must follow them. 83 This section states that any arbitrator deciding a discipline grievance must consider the timeliness of the employer’s decision to begin the disciplinary process. 99 The arbitrator said he could find no reason for the employer to issue a written reprimand and then follow it up 2 months and 8 days later with a suspension for the same offense. The evidence showed grievant was guilty and that he could have been suspended to begin with. A suspension issued over three months from the date of the offense clearly does not fall within the spirit of 24.02. 99 The employer’s policy statement setting forth deadlines are self-imposed by the employer, and employees are entitled to rely in the deadline. The arbitrator is required by 24.02 to consider the timeliness of the employer’s initiation of the disciplinary process. 106 Section 24.02 first states that discipline shall be commensurate with the offense and then cites the progressive discipline schedule. The obligation of the employer is to determine if the usual steps of progressive discipline can be applied in this case by weighing the two elements of 24.02 (seriousness of the offense vs. the requirement of progressive discipline). In this case, the seriousness of the offense (absence without leave and deliberate failure to call in despite knowing the procedure) takes precedence and the discipline did not violate 24.02 even though it skipped steps of progressive discipline. 120 The laxity of previous supervisors is no excuse where the new supervisor has given clear notice that the rules would be enforced. 121 Proof that the grievant is guilty as charged does not automatically justify the penalty. The arbitrator is required to weigh the discipline against 3 interrelated contractual standards: 1. Discipline must follow the principles of progressive discipline. 2. Discipline must be commensurate with the offense and not solely for punishment. 3. Discipline must be for just cause. 123 Pre-contractual discipline is not to be counted within the contractual disciplinary progression. (It is manifestly unreasonable to assume that a precontractual discipline would have been sustained under contractual requirements). However, precontractual discipline is relevant to the question of whether the employer is required to follow the discipline schedule of 24.02. Implicit in the language of 24.02 is the mutual recognition that some offenses are so severe as to permit bypassing disciplinary steps. (The contract calls for adherence to “the principles of progressive discipline” rather than directly to the schedule.) Pre-contractual discipline is relevant in two ways to determining the seriousness other offense. (1) It shows that grievant had notice that he would be disciplined for the wrongful conduct. (2) Long service will count as a mitigating factor only if it is long service with a good work record. 123 While insubordination is not as serious as some offenses, it is serious enough that in certain situations the employer can impose removal without following the disciplinary sequence. Under 24.02 the employer must attempt to correct insubordination; but if correction is unlikely, the employer can end an intolerable situation by imposing termination out of sequence. 123 Reading sections 24.02 and 24.05 together leads to the conclusion that the 45 days is an absolute maximum. It supplements, but does not entirely supersede the Employer’s responsibility to react to a disciplinary event “as soon as reasonably possible.” 140 Removal is not commensurate with the offense of abandoning the work site without permission for 2 ½ hours under the circumstances of the case: employee with 7 years of good service. The removal violated 24.02 and 24.05. 173 Article 24.02 requires that “disciplinary action shall be commensurate with the offense” and
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INDEX BY CONTRACT SECTION ARTICLE 1
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this case, one cannot conclude that
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Muskingum Counties that were consol
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in Article 24.04 as a meeting. The
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Article 2.01 requires that neither
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The Arbitrator found that when the
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hardship when an employee was on Un
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determined that through Article 5,
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The grievant had a thirty-day time
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Management established a list of in
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the FR clothing during these five m
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11.11 - Concern for Pregnancy Hazar
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of the contract occurred. Based upo
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“In paragraph 3…the word “win
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overtime. The arbitrator found that
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an educated guess, the grievance mu
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2. The Agreement also designates th
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which this particular agreement did
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In this case the Union grieved that
Page 39 and 40: Arbitrator held that the Grievant f
Page 41 and 42: when he was placed back into his fo
Page 43 and 44: selected because she was within ten
Page 45 and 46: she was in Section 17.04 applicant
Page 47 and 48: for a new DCS Assessment. The union
Page 49 and 50: won is not sufficient to prove incr
Page 51 and 52: Ohio Revised Code 145.298 requires
Page 53 and 54: 18.04 (formerly Article 18.03 of 19
Page 55 and 56: establishes that the just cause sta
Page 57 and 58: suspension would be excessive and u
Page 59 and 60: employee cannot be on “notice”
Page 61 and 62: grievant was a nine-year employee w
Page 63 and 64: not lead to the conclusion that the
Page 65 and 66: grievant’s allegation that the si
Page 67 and 68: etween the grievant and his supervi
Page 69 and 70: her car on state property and she p
Page 71 and 72: The Employer had just cause to remo
Page 73 and 74: The employer had just cause to remo
Page 75 and 76: a period of about 10-15 minutes whe
Page 77 and 78: commodities was completely lacking
Page 79 and 80: answer questions, even after the De
Page 81 and 82: offenders. The incident was recorde
Page 83 and 84: judgment and his less than credible
Page 85 and 86: employees and the Union are aware t
Page 87 and 88: once the Youth was on the ground. C
Page 89: enroll in an EAP program within fiv
Page 93 and 94: progressive and commensurate discip
Page 95 and 96: Bureau of Employment Services, had
Page 97 and 98: jurisdiction to resolve differences
Page 99 and 100: language toward a number of inmates
Page 101 and 102: a motor vehicle with an inoperative
Page 103 and 104: The grievant was removed for allege
Page 105 and 106: her work. The arbitrator stated tha
Page 107 and 108: meeting. The evidence also suggeste
Page 109 and 110: egarding IME’s within ODNR. The a
Page 111 and 112: individual under the supervision of
Page 113 and 114: arbitrator noted that if the behavi
Page 115 and 116: particularly in light of layoffs, b
Page 117 and 118: “extraordinarily patient with the
Page 119 and 120: and he had remained in contact with
Page 121 and 122: credible. Evidence presented indica
Page 123 and 124: oad, commonsensical guidelines abou
Page 125 and 126: aware of the grievant’s poor work
Page 127 and 128: procedural error. He found that whe
Page 129 and 130: youth at his facility. The evidence
Page 131 and 132: COs were aiding in investigations a
Page 133 and 134: The grievant was involved in a resp
Page 135 and 136: with sleep apnea and begun treatmen
Page 137 and 138: that he would have accrued during t
Page 139 and 140: years of state service. The arbitra
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workers who were aware of the condu
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criminal Assault and Falsification.
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held that removal was unreasonable,
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was knowledgeable of the corrective
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24.04 - Pre-Discipline supervisor.
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equire support before one can estab
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is considered when fashioning a rem
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The grievant was an investigator wi
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egarding the conduct of a superviso
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The grievant was a Corrections Offi
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considered the grievant’s guilty
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24.05. The Arbitrator agreed with t
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The grievant was reinstated to her
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consider that the co-worker may hav
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grievant’s removal was upheld, an
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once the Youth was on the ground. C
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undermines the purpose of the EAP p
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exercised its discretion in an arbi
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the possible violation was not brou
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irrelevant for the purpose of calcu
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grievance was held arbitrable, (the
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prohibited from using the grievance
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employee in her right to bring a gr
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26, 1994. The language of Contract
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y the grievant, would be compensabl
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committed other acts of neglect of
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filed a grievance arguing that assi
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guarantee that a document has suffi
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25.08 because the union made excess
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26.03 Work on Holidays No dispute e
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ARTICLE 28 - VACATIONS 28.01 - Rate
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contains various interventions and
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comported entirely with her initial
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ARTICLE 32 - TRAVEL 32.02 - Persona
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ARTICLE 36 - WAGES 36.02 - General
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37.04 - In-Service Training Under 3
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arbitrator found the grievance arbi
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43.03 - Mid-Term Contractual Change
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permanent part-time employees earn
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she was evaluated below average in
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“similar or related series” as
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