Arbitration summary and award log ocb award number: #1551




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ARBITRATION SUMMARY AND AWARD LOG

OCB AWARD NUMBER: #1551


OCB GRIEVANCE NUMBER:

15-00-20011105-0141-04-01


GRIEVANT NAME:

David G. Keener


UNION:

OSTA


DEPARTMENT:

Public Safety


ARBITRATOR:

N. Eugene Brundige


MANAGEMENT ADVOCATE:

Staff Lt. Kevin Teaford


2ND CHAIR:

Neni Valentine


UNION ADVOCATE:

Herschel M. Sigall


ARBITRATION DATE:

December 3, 2001


DECISION DATE:

January 14, 2002


DECISION:

MODIFIED


CONTRACT SECTIONS:

28.01 – Absence Control Policy, 28.02 – Abuse of Leave

Article 19 – Disciplinary Procedure, Article 18 – Administrative Investigations









HOLDING: Grievance was MODIFIED. Grievant was removed for having sex while on duty with an eighteen-year old female, abuse of sick leave, permitting an underage person to purchase and consume alcohol, and purchase alcohol for the Grievant, and failing to properly record traffic stops. The Arbitrator found the Employer did not prove the Grievant had sex while on duty and ordered that the Grievant be reinstated with no back pay.

COST: $1,050.00



SUBJECT:

ARB SUMMARY #1551


TO:

ALL ADVOCATES


FROM:

MICHAEL P. DUCO


AGENCY:

Public Safety

UNION:

OSTA

ARBITRATOR:

N. Eugene Brundige

STATE ADVOCATE:

Staff Lt. Kevin Teaford

UNION ADVOCATE:

Herschel Sigall

BNA CODES:

118.01 – Discipline in General; 118.634 – Off-Duty Misconduct; 118.6369 – Misuse of Leave

Grievance was MODIFIED.


In June 2001, the Grievant stopped an eighteen year old female on three different occasions. The Employer alleged the Grievant had sex with the female while he was on duty. During the three stops of the young female in June, the Grievant failed to activate the audio recording, even though he routinely activated the device for all other stops. Finally, on August 2, 2001, the Grievant called in sick, but was later seen in a bar with the eighteen-year-old. The girl purchased and consumed alcohol and purchased alcohol for the Grievant. The Grievant was removed for having sex while on duty with the girl, abuse of sick leave, permitting an underage person to purchase and consume alcohol, and purchase alcohol for the Grievant, and failing to properly record traffic stops.
The Employer argued that the above incidents justified removal of the Grievant. He was charged with violating the following rules: conduct unbecoming an officer, compliance to orders, and use of leave. The Employer called a friend of the eighteen year old girl to testify regarding the sexual relationship. The Employer used the video tapes of the three traffic stops to show that the Grievant did not attempt to activate the audio recording device.
The Union argued that the Employer failed to prove the charges against the Grievant. It noted that the Employer had no tangible or direct evidence that the Grievant had a sexual encounter with the female while he was on duty. Several Union witnesses testified that the Trooper behaved in a professional manner when he stopped the girl. The Union also pointed out that the Grievant had twice received recognition as “Trooper of the Year.”
The Arbitrator modified the grievance. The Arbitrator found that the Employer proved that the Grievant failed to activate the audio recording device when he stopped the eighteen year old girl three times in June. The Arbitrator believed this to be intentional because the audio recording device worked every other time the Grievant activated it during this time period. The Arbitrator also found that the Grievant clearly abused the use of sick leave when he called off sick and was then seen in a bar with the girl. Arbitrator Brundige also determined that the Grievant engaged in conduct unbecoming an officer when he allowed the underage girl to consume and purchase alcohol while in his presence. The Arbitrator modified the grievance because the Employer did not prove the Grievant engaged in a sexual relationship with the girl while on duty. The Arbitrator ordered that the Grievant be reinstated with no back pay.


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