Ocb grievance number




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ARBITRATION SUMMARY AND AWARD LOG

OCB AWARD NUMBER: #1466


OCB GRIEVANCE NUMBER:

27-21-19990802-1786-01-03


GRIEVANT NAME:

Morgan McBroom


UNION:

OCSEA/AFSCME Local 11


DEPARTMENT:

Rehabilitation and Correction


ARBITRATOR:

Anna DuVal Smith


MANAGEMENT ADVOCATE:

Brad Neilson


2ND CHAIR:

Jeff Wilson


UNION ADVOCATE:

Don Sargent


ARBITRATION DATE:

December 13, 2000


DECISION DATE:

January 22, 2001


DECISION:

Grievance is modified


CONTRACT SECTIONS:

Article 24


HOLDING: Modified

COST: $



SUBJECT:

ARB SUMMARY #1466


TO:

ALL ADVOCATES

FROM:

MICHAEL P. DUCO


AGENCY:

Rehabilitation and Correction

UNION:

OCSEA/AFSCME Local 11

ARBITRATOR:

Anna DuVal Smith

STATE ADVOCATE:

Brad Neilson

UNION ADVOCATE:

Don Sargent

BNA CODES:

118.6498 (Contraband on State Property)

Grievance was modified.


The grievant was a Correction Officer with approximately five years of service at the time of his removal in July of 1999. In May of that year, while conducting a routine monthly drug interdiction search, the Orient Correctional Institution Investigator, with the assistance of a drug sniffing dog, discovered marijuana seeds in the ashtray of the grievant’s car. The Ohio Highway Patrol determined that there might be 15-20 seeds in the ashtray. The contents of the ashtray were confiscated and submitted to a Criminologist whose tests determined that 5 of 8 seeds tested were in fact marijuana. 80% of the seeds were viable. The grievant was removed for violation of DR&C work rule #30a – While on duty or on state-owned or leased property, the conveyance, distribution, possession or consumption of alcoholic beverages and/or drugs of abuse.
The State argued that it had done everything right in it’s investigation and processing of this case. There is no doubt that the seeds in the ashtray of the grievant’s car were marijuana, a known drug of abuse. The grievant, who knows or should know the work rule in question, is responsible for what is in his vehicle. His claim that a friend, K.T., who had borrowed his car on at least two occasions shortly before the date the seeds were found in his car, was responsible for the presence of the seeds is irrelevant. Work rule 30a does not specify that an employee must knowingly convey. The State further argued that the grievant was a short term employee with discipline on his record and with adverse comments on his performance evaluations.
The Union argued that work rule 30a is not reasonable in that the Ohio Revised Code section 2921.36 states “no person shall knowingly convey….”, and that the State erred in not including the concept of “knowledge” in that rule. The Union pointed out that no other forms of contraband were found in the car, and that the Warden did not pursue criminal charges against the grievant. The Union submitted several panel decisions to support it’s position (e.g., Arbitrator Nelson held that five seeds and some leafy material did not constitute conveyance “as contemplated by the rule.”).
Arbitrator Smith did not directly support the Union’s contention that work rule #30a is flawed because it doesn’t include the element of knowledge. The fact that she maintain a 5 day suspension on the grievant’s record actually reinforces the work rule as written. However, she did not find that the penalty of removal was reasonable given the circumstances. Arbitrator Smith found that the State had not proven that the grievant engaged in any activity with the purpose or intent of using or distributing marijuana or any other substance of abuse. In concert with Arbitrator Nelson and at least one other panel member, Arbitrator Smith found that the mere presense of a small amount of marijuana residue in the ashtray or on the floor of a vehicle only indicates prior use by someone. It does not , by itself, constitute “conveyance, distribution, possession or consumption” as contemplated by the rule. In this case, the violation was only a technical one. The removal was reduced to a 5 day suspension.


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