Arbitration Summary by Number

452 Pages·2014·3.02 MB·English

ARBITRATION DECISION SUMMARIES
SUMMARY BY ARBITRATION NUMBER

1) James Knapp G86-0595 (Suspension)

Arbitrator: Frank Keenan
Charges: Sleeping on Duty
Contract sections: 2.02, 24.02, 24.03, 24.05, 43.03
Employment Situation: Department of Rehabilitation and Correction; Orient
Correctional Institution; Correction Officer 2
Result: Grievance partially sustained. Suspension sustained. Proviso rescinded.
Reason: Proviso stating that any further misconduct would result in termination was
found to be too harsh because it was not restricted to any length of time and was not
limited to specific violations.

2) Jeanne Favand G-86-0371

Arbitrator: Nicholas Duda
Charges: Tardiness
Result: Settlement

3) Alfred M. Bond G-86-0259 (Removal)

Arbitrator: Harry Graham
Charges: Refusing an Assignment; Insubordination
Other Issues: Just cause; Commensurate with offense
Employment situation: Department of Rehabilitation and Correction; Chillicothe
Correctional Institution; Correction Officer 2
Result: Grievance partially sustained. Discharge reduced to 2-week suspension. Back
pay. Benefits.
Reason: Discharge was not commensurate with the offense

4) Frederick R Howard G-86-0223 (Removal)

Arbitrator: Linda D. Klein
Charges: Neglect of Duty; Failure of Good behavior; Tardiness; use of excessive force;
Opening cell without properly security procedures
Other issues: Commensurate with offense; Credibility
Employment situation: Department of Rehabilitation and Correction; Ohio State
Reformatory; Correction Officer
Result: grievance denied
Reason: management proved just cause. Grievant's testimony lacked credibility since it
was inconsistent with his testimony before the use of force committee.
5) Richard Kline G-86-0579
Settlement

6) Michael R Hickey G-86-0508 (Removal)
Arbitrator: Marvin Feldman
Charges: Neglect of Duty; Absenteeism
Contract section: 29.01
Other Issues: Contract changed after violation; Substitution of charge
Employment Situation: Department of Mental Health; Oakwood Forensic Center.
Psychiatric Attendant
Result: Grievance partially sustained. Reinstatement without back pay but with
seniority. Placed at last stage of progressive discipline before discharge and required to
report to employee assistance program.
Reason: Under the liberal rules of the new contract, employer did not have just cause for
discharge.

7) Brian McCauley G-86-0224 (Removal)

Arbitrator: David Pincus
Charges: Absenteeism; Sick Leave violation
Contract Sections: 24.01; 24.02; 24.04
Other Issues: Violation of trust; Notice of work rules; Recommended punishment;
Effect of procedural defects; Right to a pre-disciplinary meeting; Progressive discipline;
Witnesses, Failure to produce; Arbitrator’s authority; Circumstantial evidence;
Credibility
Employment Situation: Department of Rehabilitation and Correction; Ohio State
Reformatory
Result: Grievance partially sustained. Reinstatement without back pay but with
seniority.
Reason: Employer had just cause but violated 24.04 (pre-disciplinary rights) and 24.02
(progressive discipline)

8) Samuel Ware G-86-0580 (Removal)

Arbitrator: David Pincus
Charges: Tardiness
Other Issues: Ambiguity of rules; Notice of consequences of violations; double
jeopardy
Employment Situation: Department of Rehabilitation and Correction; Ohio State
Reformatory; Correction Officer
Result: Grievance sustained. Reinstatement, back pay. Full benefits
Reason: Discharge was not for just cause since grievant had not received notice that
discipline would be imposed for conduct of the sort he engaged in.

9) Bruce Collyer G-86-0476

Arbitrator: David Pincus
Charges: Tardiness
Other Issues: Ambiguity of rules; Notice of consequences of violations; Double
jeopardy
Employment Situation: Department of Mental Health; Broadview Developmental
Center; Therapeutic Program Worker
Result: Grievance sustained. Reinstatement with back pay and benefits.
Reason: Employer failed to meet the burden of clear and convincing evidence

10) Theresa Swan G-86-0147 (Removal)

Arbitrator: Thomas Michael
Charges: Failure of good behavior; Threatening co-worker; abuse
Other Issues: 45 day time limit; Charge not raised at pre-disciplinary meeting;
Arbitrator’s authority; Standard of proof
Employment Situation: Department of Mental Retardation and Developmental
Disabilities; Apple Creek Developmental Center; Hospital Aide
Result: Grievance sustained. Reinstatement. Back pay. Benefits
Reason: Employer failed to meet its burden of proof.

11) Barbara A. Jackson G-86-0316 (Removal)

Arbitrator: Thomas Michael
Charges: Neglect of Duty; Tardiness
Contract Section: 13.06; 24.01; 24.02; 24.04; 24.05; 24.06
Other Issues: Just cause; Commensurate with offense; Notice of disciplinary
consequences of violation; Standard of proof
Employment Situation: Department of Mental Retardation and Developmental
Disabilities; Cleveland Developmental Center; Custodial Worker
Result: Grievance partially sustained. Reinstatement without back pay. Benefits,
rights, and privileges restored.
Reason: Just cause was not present due to procedural defects in the imposition of
discipline. However, the grievant’s recent work record did not provide a basis for
complete reversal.

12) Broadview Layoffs (Joint Case) G-86-0020 (Broadview layoffs)
Arbitrator: Jonathan Dworkin
Contract Issue: Layoff
Contract Sections: 18.01; 18.04; 18.06; 25.03
Other Issues: Medication; Arbitrator’s authority
Employment Situation: Department of Mental Retardation and Developmental
Disabilities; Broadview Developmental Center; Teacher Aides, Stationary Engineers
Result: Grievance partially sustained. Teacher Aides given reinstatement. Stationary
engineers given bumping rights. No award to employee who had already declined an
opportunity to bump. 50% back wages. Seniority. No guarantee of job security against
further layoffs.

13) Randal W. Fullenkamp 12-86-D3-U6 (Suspension, 1 day)

Arbitrator: Nicholas Duda
Charges: Traffic accidents; Carelessness with equipment; Damage to State Vehicle
Contract Section: 25.09
Other Issues: Snowplow operators manual; Notice of disciplinary consequences of
violation; Charges defective
Employment Situation: Department of Transportation; Highway Worker 2
Result: Grievance sustained. Suspension rescinded. Back pay.
Reason: State failed to prove just cause; in particular, no proof of carelessness or that
there was a rule against backing vehicles on a highway at time of incident.

14) Jeraldine Jones G-86-0328 (Removal)

Arbitrator: Frank Keenan
Charges: Abuse; Failure of good behavior
Contract Section: 24.01; 24.02; 24.03; 24.04; 24.05
Other Issues: Long service; Arbitrator’s authority; Modification of discharge in abuse
cases; Burden of proof; Standard of proof; Hearsay
Employment Situation: Department of Mental Retardation and Developmental
Disabilities; Apple Creek Developmental Center; Licensed Practical Nurse
Result: Grievance partially sustained. Reinstatement. Seniority. No back pay.
Reason: Patient abuse was not proved, but closely related offense of setting up improper
medications (which were not administered) was proved. There was mitigation based on
unblemished service.

15) Charles Armstrong G-86-0581 (Removal)

Arbitrator: Nicholas Duda
Charges: Threatening or coercing inmate into sexual conduct; Unauthorized
relationship with inmate
Contract Sections: 24.01; 24.02; 24.04; 24.05; 24.07
Other Issues: 45-day time limit
Employment Situation: Department of Rehabilitation and Correction; Ohio State
Reformatory; Correction Officer 2
Result: Grievance sustained

16) Richard Fulk 6-86-D3-U6 (Suspension, 30 day)

Arbitrator: Linda D. Klein
Charges: Neglect of duty; Traffic accident; Carelessness with equipment; Failure to lift
snowplow when crossing railroad track
Employment Situation: Department of Transportation; Surface treatment department;
Equipment Operator 2
Result: Grievance sustained. Suspension rescinded. Back pay. Expunge record of
discipline from employment records.
Reason: Faulty equipment was a likely cause of the accident.

17) Robert Ringer, et. al 54-86-D8 (Removal)

Arbitrator: Nicholas Duda
Charges: Falsification of test results; Dishonesty; Fraud
Employment Situation: Department of Transportation; District 8; Bituminous Plant
Inspector
Result: Grievance sustained with regard to one grievant who had been in training at the
time. Reinstated and made whole. Al other grievances were denied and discharges were
upheld.
Reason: With regard to the reinstated employee, the state had not shown that he
willfully falsified any test results. With regard to the rest, their willful falsification of
test results endangers the public, harms ODOT’s reputation, and may subject the state to
great expense if the concrete on roads ages prematurely. Such an offense is so serious
that it justifies removal on the first offense. The grievants had notice of the possible
disciplinary consequences of their action, in spite of lax supervision, since they all knew
that performing the tests was one of the main purposes of their job.

18) Dennis Key G-86-0585

Arbitrator: Linda D. Klein
Charges: Substance abuse; Criminal conviction; Correction officer barred from carrying
weapon; Being a parolee
Other Issues: Employer prevented grievant from attending step 3
Employment Situation: Department of Rehabilitation and Correction; Lima
Correctional Institution; Correction Officer
Result: Grievance denied
Reason: Arbitrator ignored grievant’s explanation that he pleaded guilty for reasons
other than guilt. Being a parolee raises a conflict of interest for correction officers.
Being prevented from attending step 3 hearing would have effect only if it prejudiced
grievant.

19) Larrie Green G-86-0067 (Performance Evaluation)

Arbitrator: David M. Pincus
Contract Issue: Performance evaluations
Contract Sections: 5; 22.01; 22.02; 24.02; 24.06; 43.01; 43.02
Other Issues: Contract interpretation
Employment Situation: Ohio Student Loan Commission; Programmer Analyst 2
Result: Grievance denied.
Reason: The contract permits performance evaluations to occur less than year apart.
Frequent performance evaluations provide the employee with due process by giving
notice of deficiencies.

20) Larrie Green G-86-1-76 (Removal)

Arbitrator: David Pincus
Charges: Incompetence; Missing deadlines; producing incorrect computer programs
Contract Section: 24.01; 24.02; 43.02
Other Issues: Double jeopardy; Notice of disciplinary consequences of violation;
Timeliness in filing grievance; Arbitrator’s authority
Employment Situation: Ohio Student Loan Commission; Programmer Analyst 2
Result: Grievance sustained. Reinstatement with back pay.
Reason: Employer failed to prove incompetence, had not provided sufficient
supervision necessary for learning the job, and failed to provide grievant with notice
concerning disciplinary consequences of his level of performance.

21) George Cleggett G-86-0072 (Holiday pay)

Arbitrator: Marvin Feldman
Contract Issue: Holiday pay; ORC 4117.1
Other Issues: Arbitrator’s authority where case brought before him by briefs;
Interpretation of contract
Employment Situation: Bureau of Employment Services
Result: Grievance denied.
Reason: A general rule followed by arbitrators is that the employer need not
compensate an employee for a day not worked unless there is a contractual requirement
or a clear and consistent past practice. There is not a contractual requirement that the
employer give holiday pay when the employee has received authorized leave without pay
for the day before the holiday. Since the case was brought before the arbitrator by brief
rather than sworn testimony, the arbitrator must resolve the factual question of whether
there was past practice in employee’s favor.

22) Ann Feldstein G-86-0050 (Physician’s statement)

Arbitrator: Thomas Michael
Contract Issue: Physician’s statement: Sick leave
Employment Situation: Ohio Civil Rights Commission; Toledo Office; Civil Rights
Representative 1
Result: Grievance denied.
Reason: Prior to implementation of sick leave policy referred to in section 29.03 and
29.02, vests discretion in employer to require submission of physician’s statement within
reasonable period of time to verify employee illness for purpose of sick leave approval,
except where there is evidence of discrimination or arbitrary application.

23) Osborn Lee G-86-0977 (Removal)

Arbitrator: David M. Pincus
Charges: Absenteeism; Tardiness; Alcoholism
Contract Section: Article 9; 24.01; 24.02
Other Issues: Last chance agreement; Forgetfulness; Notice of disciplinary
consequences
Employment Situation: Department of Mental Health; Fallsview Psychiatric Hospital;
Hospital Aide
Result: Grievance denied.
Reason: Continued alcohol induced violations do not obligate employer to provide ever
increasing treatment. Forgetfulness is not an excuse. Failure to issue formal discipline
after last chance agreement shows patience and willingfulness to help the grievant rather
than bad faith or negligence.

24) Marilyn McClutchen G-86-0354 (Removal)

Arbitrator: Rhonda Rivera
Charges: Neglect of duty; Absenteeism; Physician’s statement; Failure to call-in
Contract Section: 24.05
Other Issues: Progressive discipline
Employment Situation: Ohio Civil Rights Commission; Typist
Result: Grievance partially sustained. Removal reduced to 6-day suspension. Back
pay.
Reason: While grievant’s past record would have justified removal if she had been
guilty of additional absenteeism, grievant was not guilty of absenteeism but had only
failed to document sick leave in a timely manner and gave documentation to the wrong
person in the chain of command. Call-in requirement was satisfied by a good faith effort
using reasonable means of reporting calculated to result in actual notice.

25) David Coffman 10-86-D1 (Seniority under old ODOT member’s only contract)

Arbitrator: Rhonda Rivera
Contract Issue: Seniority; Promotion
Employment Situation: Ohio Department of Transportation
Result: Grievance sustained
Comment: Concerned definition of seniority in ODOT contract existing prior to the
OCSEA contract.

26) Michael Williams G- 86-1040 (Suspension, 6 day)

Arbitrator: Rhonda Rivera
Charges: Failure to sign out; unauthorized telephone use; abandonment of work area
Other Issue: Progressive discipline
Employment Situation: Department of Mental Health; Western Reserve Psychiatric
Habilitation Center; Therapeutic Program Worker
Result: Grievance partially sustained. Reduction to 4-day suspension.
Reason: (1) One of the charges, abandonment of work area, was unproved. There was
no clear policy as to whether the basketball court where grievant was located was on or
off the unit. (2) The grievant had been encouraged to play basketball with the patients.

27) Michael Williams G-86-1043 (Removal)

Arbitrator: Rhonda Rivera
Charges: Failure to record vital records; Failure to sign out; absenteeism; leaving work
early; Neglect of duty; Bed check
Contract Section: 24.05
Other Issues: Penalty not commensurate with offense; Standard of proof
Employment Situation: Department of Mental Health; Western Reserve Habilitation
Center; Therapeutic Program Worker
Result: Grievance partially sustained. Reduction to 6-day suspension. Back pay.
Reason: Removal was not commensurate with offenses of failing to make vital record
and to sign-out properly. If grievant had been absent, removal would have been
appropriate.

28) Solitaire Dispasalgne G-86-0318 (Removal)

Arbitrator: Rhonda Rivera
Charges: Insubordination; Wearing headphones
Employment Situation: Department of Rehabilitation and Correction; Orient
Correctional Institution; Account Clerk 1
Result: Grievance denied.
Reason: Grievant was insubordinate since she chose the path of provocation and
disobedience rather that obedience and availing herself of the grievance machinery.

29) Dyanne Kuster G-87-1012 (Removal)

Arbitrator: Frank A. Keenan
Charges: Aiding patient in escape. Relationship with patient interpreted as exploitive
or sexual; Dishonesty; False statements to institution’s police
Other Issues: Credibility
Employment Situation: Department of Mental Health; Cambridge Mental Health
Center; Therapeutic Program Worker
Result: Grievance denied.
Reason: Charges proved and removal was just.

30) George Helberg 35-87-D2 (Suspension, 10 day)

Arbitrator: Rhonda Rivera
Charges: Traffic accident; Failure to report accident
Contract Section: 24.02; 24.05
Other Issues: Progressive discipline; Commensurate with offense
Employment Situation: Department of Transportation; Equipment Operator 2
Result: Grievance partially sustained. Reduction to 4-day suspension
Reason: Discipline was not commensurate with the offense. Since a single wrongful act
gave rise to all of the charges, grievant should only receive the penalty designated for the
most serious charge.

31) Michael Harris G-87-0867 (Removal)

Arbitrator: Jonathan Dworkin
Charges: Sleeping on duty; Threatening an administrative officer
Employment Situation: Department of Mental Health; Cleveland Psychiatric
Institution; Therapeutic Program Worker
Result: Settlement through mediation. Removal modified to 40-day suspension. Back
pay. Withdrawal of objections for unemployment compensation.

32) Sheryl Holton G-86-0070 (Avoidance of Overtime)

Arbitrator: John E. Drotning
Contract Issue: Avoidance of overtime; Work Schedule
Contract Sections: 13.02; 13.07; 13.10
Employment Situation: Bureau of Employment Services; Employee Service
Representative
Result: Grievance sustained. Overtime pay awarded.
Reason: Five day schedules, like 7-day schedules, cannot be changed to avoid overtime.

33) Zane Mustaine G-87-0687 (Removal)

Arbitrator: Rhonda Rivera
Charges: Failure to follow procedure; Breach of confidentiality; Dishonesty
Other Issues: Avoidance of liability; Progressive discipline; Notice of charge; Notice of
disciplinary consequences; Grand jury determination; Standard of proof
Employment Situation: Department of Taxation; Tax Agent 3
Result: Grievance denied
Reason: Poor security procedures of employer do not justify the deposit of a state check
in a private bank account “for safe keeping.”

34) Richard Gaffney G-87-0030 (Suspensions, 2 day and 5 day)

Arbitrator: Jonas Katz
Charges: Profanity; Coercive language
Employment Situation: Department of Rehabilitation and Correction; Lebanon
Correctional Institution; Correction Officer
Result: Grievances partially sustained. Suspensions reduced to single 5-day suspension.
Reason: Grievances had been imposed so close together that it was unclear that the
grievant had been made aware of the full impact of his earlier conduct before being
disciplined the second time.

35) Mary Garren G-87-0409 (Suspension, 3 day)

Arbitrator: Robert A. Carter
Charges: Failure to provide sick leave documentation; Failure to follow order;
Absenteeism
Contract Section: 29.03
Other Issues: Conflicting rules; notice of disciplinary consequences of conduct;
Interpretation; Admission of evidence
Employment Situation: Department of Mental Retardation and Developmental
Disabilities; Columbus Developmental Center; Hospital Aide
Result: Grievance sustained
Reason: Manager who requested sick leave documentation did not have the authority to
do so. His order was invalid. Disparate treatment had occurred. Lax enforcement of
sick leave requirements had deprived grievant of notice of the disciplinary consequences
of her conduct. Finally, the departmental rule could not be enforced because it was
stricter than the institutional directive.