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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
jurisdiction to resolve differences over back pay and benefits. 439 The employer did not initiate each disciplinary action as soon as reasonably possible, and failed to provide any justification for merging separate infractions. Progressive discipline could not be followed because the grievant was never promptly charged with any violation. The Arbitrator inferred that the employer hoped to develop a critical mass resulting in discharge. 444 (1992-94 contract) The Employer failed to follow progressive discipline. The grievant received two written reprimands in the past for similar violations concerning neglect or negligence concerning patient care, and therefore, the removal was modified to a three-day suspension. 447 (1992- 94 contract) The grievant allegedly stole an institution check for $26.40. Investigation of the stolen check was notpursued until more than a year after it was cashed. The Union continuously raised the timeliness issue throughout the grievance procedure. The Arbitrator determined that the Union prevailed in its assertion that the State did not comply with the last paragraph of Article 24, Section 24.02 of the collective bargaining agreement when it failed to timely take disciplinary action against the Grievant. She also noted, however, that the investigation was properly and timely pursued as soon as the new warden was brought on board. Nevertheless, the Arbitrator determined that the Union prevailed in this case. 449 (1992-94 contract) The grievant was charged with participating in the abuse and intimidation of two inmates who were convicted of sex crimes involving juveniles. An ongoing criminal investigation is justification for delay of the pre-disciplinary meeting. Article 24.02 expressly grants the Employer the right to delay the pre-disciplinary meeting in such cases. The arbitrator concluded that the inmates' accounts were more credible than those of the officers. The arbitrator also concluded that the officers’ statement about the incidents were self-serving, and when weighed against Inmate A’s statements which were consistent, non-evasive and supported by credible corroboration, they came up short. 470 (1992-94 contract) The grievant called off sick. When she spoke to her supervisor, she mentioned disability leave. The grievant did not call in the next day or thereafter. The letter cautioned that failure to contact the office might result in disciplinary action. She stated that she believed she had told her supervisor she was going on disability. She then requested that disability papers be sent to her. This same day, the Human Resources department sent the grievant a letter stating that she had abandoned her job and that they recommended she be removed. The two comments made in the pre-disciplinary report and the Step 3 report were gratuitous and raise questions about the fairness of the investigation. The remark that the grievant took time off to spend her track winnings was not based on any evidence before the hearing officer. The remark in the Step 3 report about the high heels was likewise not tied to the evidence. The grievant had no chance to rebut these internally held conclusions. As a long-time employee, the grievant knew that documents would be required for disability leave. She knew that the Employer would expect her to seek medical authorization for long absences. The grievant knowingly violated call-in rules and sick leave policy, but the violations did not rise to the level of job abandonment. The Employer had just cause to discipline the grievant, but removal following a one-day suspension is not progressive unless the offense was so serious as to warrant removal. In this case, the removal was not progressive, commensurate nor fairly applied. The removal was converted to a 20-day suspension. 477 (1992-94 contract) A Correction Officer from the Mansfield facility brought two Mansfield inmates to an area of the CRC facility to allow the inmates to use the restroom. The Mansfield officer left the area temporarily, and when he returned, he alleged that inmate A’s nose was bloody and that inmate B's cuffs were off. The inmates alleged that they were hit, slapped or pushed by the grievants while in a cell, and, in particular, that the grievants struck inmate A. The State relied on subpoenaed witnesses, many of whom had criminal records. Their testimony was inconsistent, and in some cases, not credible. Even the Mansfield officer's testimony was inconsistent, and the supervisor on the scene did not support the State's case. The arbitrator did not believe that it had been established that the grievants committed the alleged abuse. During the process of working out the appropriate
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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
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Arbitrator held that the Grievant f
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when he was placed back into his fo
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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 and 90: enroll in an EAP program within fiv
Page 91 and 92: The parties did not intend that pre
Page 93 and 94: progressive and commensurate discip
Page 95: Bureau of Employment Services, had
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
Page 141 and 142: workers who were aware of the condu
Page 143 and 144: criminal Assault and Falsification.
Page 145 and 146: 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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