by Contract Number (PDF) - OCSEA

The arbitrator recognizes the employer's right to
implement and enforce a drug policy but
cautions that enforcement of such a policy
cannot be done in violation of the provisions of
the Contract. First, the arbitrator points out that
the employer is not required to remove an
employee upon his/her first drug offense. The
arbitrator concluded that the discipline was not
progressive in light of the grievant's past
discipline. Further, the arbitrator finds that the
phrase "in any way" does not include possession
of drugs. As for the absenteeism problem, there
is no doubt that it exists. However, removal is
too severe a punishment for such actions. The
removal was reduced to a ten-day suspension.
This award was conditional upon the grievant's
participation in and compliance with her
Employer's Employee Assistance Program. The
grievant was further placed on notice that a
second violation of the drug policy would
warrant her removal. 429
The grievant was removed for unauthorized
possession of state property when marking tape
worth $96.00 was found in his trunk. The
Columbus police discovered the tape, notified
the employer and found that the tape was
missing from storage. The arbitrator found that
the late Step 3 response was insufficient to
warrant a reduced penalty. The arbitrator also
rejected the argument that the grievant obtained
the property by “trash picking” with permission,
and stated that the grievant was required to
obtain consent to possess state property. It was
also found that while the employer’s rules did
not specifically address “trash picking” the
grievant was on notice of the rule concerning
possession of state property. The grievance was
denied. 432
The grievant, a Therapeutic Program Worker,
took $150 of client money for a field trip with
the clients. The grievant was arrested en route
and used the money for bail in order to return to
work for his next shift. The grievant was
questioned about the money before he could
repay it, he offered to repay it when he was paid
on Friday, but failed to offer payment until the
next Monday. He was removed for Failure of
Good Behavior. While the employer was found
to have poorly communicated its rules
concerning use of client funds, the grievant was
found to have notice of its provisions. The
arbitrator found that the grievant lacked the
intent to steal the money, however the grievant’s
failure to repay was not excused, thus just cause
was found for discipline. Because of the
grievant’s prior disciplinary record, removal was
held commensurate with the offense and the
grievance was denied. 433
The grievant was a Mail Clerk messenger whose
responsibilities included making deliveries
outside the office. The grievant had bought a
bottle of vodka, was involved in a traffic
accident, failed to complete a breathalyzer test
and was charged with Driving Under the
Influence of Alcohol. The grievant’s guilt was
uncontested and the arbitrator found that no valid
mitigating circumstances existed to warrant a
reduction of the penalty. The grievant’s denial of
responsibility for her drinking problem and
failure to enroll into an EAP were noted by the
arbitrator. The arbitrator stated that the grievant’s
improved behavior after her removal cannot be
considered in the just cause analysis. Only the
facts known to the person imposing discipline at
the time of the discipline may be considered at
arbitration. The arbitrator found no disparate
treatment as the employees compared with he
grievant had different prior discipline than the
grievant, thus, there was just cause for her
removal. 434
The grievant was employed by the Bureau of
Workers’ compensation as a Data Technician 2.
He had been disciplined repeatedly for sleeping
at work and he brought in medication he was
taking for a sleeping disorder to show
management. The grievant was removed for
sleeping at work. The grievant had valid medical
excuses for his sleeping, which the employer was
aware of. The arbitrator stated that the grievant
was ill and should have been placed on disability
leave rather than being disciplined. No just cause
for removal was found, however the grievant
was ordered to go on disability leave if it is
available, otherwise he must resign. 436
The grievant was a custodian for the Ohio
School for the Blind who was removed for the
theft of a track suit. The arbitrator looked to the
Hurst decision for the standards applicable to
cases of theft. It was found that while the
grievant did carry the item out of the facility, no
intent to steal was proven; removal of state
property was proven, not theft. The arbitrator
found no procedural error in that the same person
recommended discipline and acted as the Step 3
designee. Because the employer failed to meet its
burden of proof, the removal was reduced to a 30
day suspension with the arbitrator retaining