Ocb grievance number




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ARBITRATION SUMMARY AND AWARD LOG

OCB AWARD NUMBER: #1452


OCB GRIEVANCE NUMBER:

27-19-19990827-01-03


GRIEVANT NAME:

Maurice Smith


UNION:

OCSEA/AFSCME Local 11


DEPARTMENT:

Rehabilitation and Correction


ARBITRATOR:

Nels Nelson


MANAGEMENT ADVOCATE:

Dave Burrus


2ND CHAIR:

Meredith Lobritz


UNION ADVOCATE:

George Yerkes


ARBITRATION DATE:

July 18, 2000, Briefs filed August 4, 2000, and August 24, 2000.

DECISION DATE:

October 2, 2000


DECISION:

MODIFIED


CONTRACT SECTIONS:

Article 24, Appendix M


HOLDING: Grievance was MODIFIED. Grievant was terminated after a random drug sweep of the institution’s parking lot turned up five marijuana seeds in the car driven by the Grievant. The Grievant also tested positive for marijuana use. The Union argued that the car belonged to another person and that a third person had driven the car the night before.

COST: $



SUBJECT:

ARB SUMMARY #1452


TO:

ALL ADVOCATES

FROM:

MICHAEL P. DUCO


AGENCY:

Department of Rehabilitation and Correction

UNION:

OCSEA/AFSCME Local 11

ARBITRATOR:

Nels Nelson

STATE ADVOCATE:

David Burrus

UNION ADVOCATE:

George Yerkes


BNA CODES:

118.01 – Discipline in General; 118.6498 – Contraband on State Property; 118.653 – Substance Abuse

Grievance was MODIFIED.


Grievant, a six-year employee, was terminated for possession of drugs on state property. The Ohio Highway Patrol found marijuana seeds and a small amount of marijuana plant material in the car driven by the Grievant. The Grievant told the Highway Patrol that the car belonged to his fiancée, and that his cousin had used the car the previous evening. He claimed that someone else must have left the material in the car without his knowledge. The Highway Patrol sent the Grievant to be drug tested; the test was positive for marijuana use. The Highway Patrol unsuccessfully attempted to contact the Grievant’s cousin to verify the Grievant’s claim that the cousin had borrowed the car. The Grievant provided no statement from his cousin to corroborate his story.
The Employer argued that the Grievant had violated the Department’s rule against bringing illegal drugs onto state property and was properly removed. The Employer argued that the Grievant knew there was marijuana in the car. The Grievant had admitted to seeing marijuana seeds in the trunk of the car when he changed the tire earlier that morning. Finally, the Employer argued that the small amount of contraband found in the Grievant’s car was irrelevant. The Employer noted that the Department maintains a zero-tolerance policy for drug possession on State property, no matter the amount of drugs found.
The Union first argued that the Grievant was not given a proper opportunity to speak at his pre-disciplinary hearing. The Union then claimed that the Employer failed to conduct a proper investigation. It argued that the Employer relied solely on the Ohio Highway Patrol’s report rather than conducting its own investigation. The Union also argued that after the Grievant had tested positive for drugs, he should have been allowed to complete a substance abuse program according to Appendix M. Finally, the Union claimed that the Grievant did not know the marijuana was in the car. It cited several arbitration decisions that held termination was not proper when an employee’s knowledge of a small amount of marijuana in a vehicle could not be clearly demonstrated.
The Arbitrator did not believe “the Grievant was guilty of conveying marijuana onto state property or possessing marijuana on state property.” The Arbitrator found that the small amount of marijuana found in the car driven by the Grievant was “analogous to a few beer cans thrown on the floor of a car with a few drops of beer left in them.” The Arbitrator determined that the small amount of material found did not show conveyance or possession of an illegal drug, but merely reflected prior use. The Arbitrator noted distinguishing factors in the cases cited by the Employer to support its arguments. However, the Arbitrator did find that the Grievant clearly had used marijuana based on his positive drug test. The Arbitrator held that the Grievant should be given an opportunity to complete a substance abuse program, and reinstated with backpay, excluding pay for the time required to complete the program. The Arbitrator also ordered that the Grievant be placed on a three-year last chance agreement (“LCA”). The LCA imposed by the Arbitrator allowed the Employer to have the Grievant tested for drug use at its discretion. If the Grievant tests positive for drugs, he is to be removed.


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