by Contract Number (PDF) - OCSEA

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