Ocb grievance number




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ARBITRATION SUMMARY AND AWARD LOG

OCB AWARD NUMBER: 1388 Expedited


OCB GRIEVANCE NUMBER:

1) 15-00-990407-0022-04-01

2) 15-00-990506-0044-04-01




GRIEVANT NAME:

1) James P. Danaher

2) John Kennedy Fitzgerald




UNION:

Ohio State Troopers Association


DEPARTMENT:

Public Safety


ARBITRATOR:

Sandra Mendel Furman


MANAGEMENT ADVOCATE:

1) Lt. Sue Rance

2) Staff Lt. Robert Young




2ND CHAIR:

Rhonda Bell


UNION ADVOCATE:

Herschel Sigall


ARBITRATION DATE:

August 12, 1999


DECISION DATE:

August 19, 1999


DECISION:

1) GRANTED

2) DENIED




CONTRACT SECTIONS:

1)

2)



HOLDING: 1) Grievance was GRANTED. Grievant, a Trooper stationed at the Steubenville post of the Ohio State Highway Patrol, was given a one-day suspension. The Grievant was controlling traffic for an ODOT highway-repair project. The Employer alleges that the Grievant caused an accident by motioning a car to cross a lane of southbound traffic to enter the northbound lane, but not checking the southbound lane for traffic beforehand. The Union argues that the Grievant made a motion for the car to stop where it was and to not enter traffic. The Arbitrator found that while the Employer had a witness that stated the Grievant did motion the car to enter traffic, the Employer’s case was not conclusive enough to support the suspension. The grievance was GRANTED in its entirety.
2) Grievance was DENIED. Grievant, a Trooper stationed at the Steubenville post of the Ohio State Highway Patrol, was given a five-day suspension. The Grievant backed a patrol car into a corner of a shed on the post premises while attempting to access a fuel pump. The Employer argued that the suspension was proper given the Grievant’s past disciplinary record, which included several driving-related incidents in the past five years. The Union pointed out an instance of disparate treatment where a more senior employee received less discipline for a more severe accident. The Union also emphasized that the Grievant had repaired the damage himself at his own expense. The Arbitrator ruled that the discipline was proper, given that the Employer had followed progressive discipline. The Arbitrator felt that the Union had not proven a case of disparate treatment because the employee used in comparison with the Grievant was not similarly situated. The grievance was DENIED.
COST: $350.00



SUBJECT:

ARB SUMMARY #1388


TO:

ALL ADVOCATES

FROM:

MICHAEL P. DUCO


AGENCY:

Department of Public Safety

UNION:

Ohio State Troopers Association

ARBITRATOR:

Sandra Mendel Furman

STATE ADVOCATE:

1) Lt. Susan Rance, 2) Staff Lt. Robert Young

UNION ADVOCATE:

Herschel Sigall


BNA CODES:

1) 118.01 - Discipline in General, 118.6517 - Inefficiency

2) 118.01 - Discipline in General, 118.08 - Suspensions in General, 118.637 - Traffic Violations

1) Grievance was GRANTED.


Grievant, a Trooper stationed at the Steubenville post of the Ohio State Highway Patrol, was given a one-day suspension for causing an accident while directing traffic for a private contractor. The Grievant was to direct northbound traffic on SR 7 where it intersects CR 17. A car wanted to turn left from CR 17 eastbound to SR 7 northbound, but had to cross the southbound lane to do so. The Grievant testified he motioned the car to stop because a turn onto the northbound lane of SR 7 was impossible, given the location of construction equipment. The Grievant also stated that he would not have directed the motorist to cross the southbound lane of SR 7 because he was in a position where he could not see southbound traffic on SR 7. A witness testified he saw the Grievant motion for the car to cross the southbound lane of SR 7 to enter the northbound lane. As the car moved through the southbound lane to turn left, a vehicle moving south on SR 7 struck it.
The Employer argued the suspension was proper because the Grievant had caused the accident by motioning the car to turn onto the northbound lane of SR 7 without being able to see southbound traffic. The Employer relied on a witness who testified he saw the Grievant motion for the car to come forward and turn onto the northbound lane of SR 7. This witness also claimed that his wife had spoken with the wife of the driver who had been in the accident. He claimed that his wife confirmed that the victim’s wife, as the front seat passenger in the car, saw the Grievant motion the car into the oncoming southbound traffic. The Employer argued that there was ample evidence to sustain the suspension.
The Union argued that for the Employer’s version of events to take place, the Grievant would have had to motion a car into a spot where he could not see oncoming traffic. In addition, the car could not make the turn it wanted to make from the spot of the accident, so the Grievant had no reason to have the car move into the southbound lane. The Union argued that the Employer’s version of events defies common sense.
The Arbitrator ruled that the Employer had the burden of proof in this case and did not meet it. The Arbitrator felt that since the victim of the accident had not testified, it was the Grievant’s word against the word of the Employer’s witness. The Arbitrator felt that the Employer’s case was not compelling enough to uphold just cause for a one-day suspension. The grievance was GRANTED in its entirety.

  1. Grievance was DENIED.

Grievant, a Trooper stationed at the Steubenville post of the Ohio State Highway Patrol, was given a five-day suspension for backing into a shed on the post premises with his patrol car. The Grievant was backing his car up to a fuel pump to refuel his car when the accident occurred. The Grievant immediately reported the accident to his supervisors and repaired the damage to the shed at his own expense.


The Employer argued that the suspension was warranted given the Grievant’s disciplinary record for driving-related incidents over the past five years. The Employer argued that the discipline imposed was progressive and not severe. The Employer demonstrated it was not punitive in its intentions toward the Grievant because it had sent him to driving-refresher courses twice.
The Union argued that the discipline imposed was too harsh given the nature of the incident. The Union pointed out that the shed was not in good shape and that the Grievant had repaired the damage himself, two things that should mitigate the discipline he received. The Union also pointed out an instance of disparate treatment where a more senior employee received less discipline for a more serious accident.
The Arbitrator ruled that the discipline was proper, given the driving history of the Grievant and the progressive nature of the penalties levied against the Grievant. The Arbitrator felt that the Union had not proven an instance of disparate treatment because the employee used in comparison was not similarly situated with the Grievant. For all the above reasons, the grievance was DENIED.


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