ARTICLE 24 – DISCIPLINE

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This is a labor agreement with annotations by the Office of Collective Bargaining. PLEASE NOTE: Language that is in bold typeface and underlined was added with this Agreement. Language that is struckthrough was removed with this Agreement. Language in Italics are annotations added by the Office of Collective Bargaining.

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24.01 - Standard

Disciplinary action shall not be imposed upon an employee except for just cause. The Employer has the burden of proof to establish just cause for any disciplinary action. In cases involving termination, if the arbitrator finds that there has been an abuse of a patient or another in the care or custody of the State of Ohio, the arbitrator does not have authority to modify the termination of an employee committing such abuse. Abuse cases which are processed through the Arbitration step of Article 25 shall be heard by an arbitrator selected from the separate panel of abuse case arbitrators established pursuant to Section 25.04. Employees of the Lottery Commission shall be governed by O.R.C. Section 3770.02(1).

24.02 - Progressive Discipline

The Employer will follow the principles of progressive discipline. Disciplinary action shall be commensurate with the offense.

Disciplinary action shall include:

A.     one or more oral reprimand(s) (with appropriate notation in employee's file);

B.     one or more written reprimand(s);

C.     working suspension;

D.     one or more fines in an amount of one (1) to five (5) days, the first fine for an employee shall not exceed three (3) days pay for any form of discipline; to be implemented only after approval from OCB;

E.      one or more day(s) suspension(s);

F.      termination

Disciplinary action shall be initiated as soon as reasonably possible consistent with the requirements of the other provisions of this Article. An arbitrator deciding a discipline grievance must consider the timeliness of the Employer's decision to begin the disciplinary process.

The deduction of fines from an employee's wages shall not require the employee's authorization for withholding of fines.

If a bargaining unit employee receives discipline which includes lost wages or fines, the Employer may offer the following forms or corrective action:

1.      Actually having the employee serve the designated number of days suspended without pay; or pay the designated fine or;

2.      Having the employee deplete his/her accrued personal leave, vacation, or compensatory leave banks of hours, or a combination of any of these banks under such terms as may be mutually agreed to between the Employer, employee, and the Union.

Explanation:	A working suspension is noted as a suspension on the employee’s disciplinary record, but the employee does not miss work and receives pay for the time worked, i.e. a “paper” suspension.  For purposes of progressive discipline, a working suspension shall carry the same weight as a suspension. Disciplinary fines of one (1) to five (5) days’ pay may be issued as a method of imposing discipline for any type of infraction.  Fines may not be imposed in increments of less than one (1) day.  An employee may not be fined more than three (3) days’ pay for his/her first fine.  A fine cannot be coupled with other forms of discipline to exceed the five (5) day limitation on fines. Language in this section gives the Employer the option to offer alternatives to an employee in lieu of the employee’s paying a fine or serving a suspension without pay.  The Employer may allow the employee the option of having his/her leave banks depleted the number of hours equal to the fine or suspension.  The fact that the Employer offers and/or the employee accepts the offer to use one of these alternatives does not alter the record of discipline.  For example, if the employee was given a five-day fine and chooses to forfeit five (5) days of vacation rather than forfeit the pay, the employee’s disciplinary record shall still reflect a five-day fine.  The option of whether to offer one of these alternatives is solely within the Employer’s discretion.
Attention:	Agency Directors; Agency Labor Relations and Personnel Officers.  Staff Representatives, Union Officials.
Instructions:	Agencies will conduct a pre-disciplinary conference and will have to meet the same burden of proof as in any other discipline when imposing a fine or working suspension.

24.03 - Supervisory Intimidation

An Employer representative shall not use the knowledge of an event giving rise to the imposition of discipline to intimidate, harass or coerce an employee.

In those instances where an employee believes this section has been violated, he/she may file a grievance, including an anonymous grievance filed by and processed by the Union in which the employee's name shall not be disclosed to the Employer representative allegedly violating this section, unless the Employer determines that the Employer representative is to be disciplined.

The Employer reserves the right to reassign or discipline Employer representatives who violate this section.

Knowingly making a false statement alleging patient abuse when the statement is made with the purpose of incriminating another will subject the person making such an allegation to possible disciplinary action.

24.04 - Pre-Discipline

An employee shall be entitled to the presence of a union steward at an investigatory interview upon request and if he/she has reasonable grounds to believe that the interview may be used to support disciplinary action against him/her.

An employee has the right to a meeting prior to the imposition of a suspension, a fine, leave, reduction, working suspension, or termination. The employee may waive this meeting, which shall be scheduled no earlier than three (3) days following the notification to the employee. Absent any extenuating circumstances, failure to appear at the meeting will result in a waiver of the right to a meeting. An employee who is charged, or his/her representative, may make a written request for a continuance of up to 48 hours. Such continuance shall not be unreasonably denied. A continuance may be longer than 48 hours if mutually agreed to by the parties. Prior to the meeting, the employee and his/her representative shall be informed in writing of the reasons for the contemplated discipline and the possible form of discipline. When the pre-disciplinary notice is sent, the Employer will provide a list of witnesses to the event or act known of at that time and documents known of at that time used to support the possible disciplinary action. If the Employer becomes aware of additional witnesses or documents that will be relied upon in imposing discipline, they shall also be provided to the Union and the employee. The Employer representative recommending discipline shall be present at the meeting unless inappropriate or if he/she is legitimately unable to attend. The Appointing Authority's designee shall conduct the meeting. The Union and/or the employee shall be given the opportunity to ask questions, comment, refute or rebut.

At the discretion of the Employer, in cases where a criminal investigation may occur, the pre-discipline meeting may be delayed until after disposition of the criminal charges.

24.05 - Imposition of Discipline

The Agency Head or designated Deputy Director or equivalent shall make a final decision on the recommended disciplinary action as soon as reasonably possible but no more than forty-five (45) days after the conclusion of the pre-discipline meeting. At the discretion of the Employer, the forty-five (45) day requirement will not apply in cases where a criminal investigation may occur and the Employer decides not to make a decision on the discipline until after disposition of the criminal charges.

The employee and/or union representative may submit a written presentation to the Agency Head or Acting Agency Head.

If a final decision is made to impose discipline, the employee and Union shall be notified in writing. The OCSEA Chapter President shall notify the agency head in writing of the name and address of the Union representative to receive such notice. Once the employee has received written notification of the final decision to impose discipline, the disciplinary action shall not be increased.

Disciplinary measures imposed shall be reasonable and commensurate with the offense and shall not be used solely for punishment.

The Employer will not impose discipline in the presence of other employees, clients, residents, inmates or the public except in extraordinary situations which pose a serious, immediate threat to the safety, health or well-being of others.

An employee may be placed on administrative leave or reassigned while an investigation is being conducted except that in cases of alleged abuse of patients or others in the care or custody of the State of Ohio, the employee may be reassigned only if he/she agrees to the reassignment.

Arbitration Awards:
OCB #658 OCSEA #372	Arbitrator Smith:  Grievant Rand Speer; DR&C, 8/30/91.  In examining procedural issues, the Arbitrator ruled that a final decision had to be made within 45 days, not that discipline had to be imposed within that time.  There are other decisions regarding this matter and at least one states the discipline must be issued within the specified time frame.  However, OCB holds the position espoused by Arbitrator Smith.
OCB #670 OCSEA #377	Arbitrator Smith:  Grievant Michael Ward; DR&C, 9/17/91.  In examining procedural issues the Arbitrator held that the Grievant's failure to appear during the pre-disciplinary hearing did not deprive him of a fair consideration of his case.
OCB #1416 OCSEA #712	Arbitrator Brookins:  Grievant Shelli Jackson; DYS, 12/19/99.  Arbitrator Brookins held that the Employer’s violation of the 45-day time limit required that the discipline be reduced.  He reduced the grievant’s fifteen (15) day suspension to an eleven (11) day suspension.
OCB #1417 OCSEA #711	Arbitrator Stein:  Grievant George Motley; OCRC, 01/03/00.  Arbitrator Stein held that the Employer’s violation of the 45-day time limit completely negated the Employer’s ability to terminate the grievant.  He ordered that the grievant be reinstated with full back-pay and benefits.
Explanation:	Language in this Section allows the Agency Head to delegate the responsibility for signing disciplinary action.
Attention:	Staff Representatives, Union Officials; Agency Directors; Agency Labor Relations, Personnel and Human Resources Officers; Department of Administrative Services, Human Resources Division, Office of Personnel Services.
Instructions:	Each Agency should identify those persons designated by the Director as being delegated the authority to sign disciplinary action.  Each agency must inform the Union of the designee(s).

24.06 - Prior Disciplinary Actions

All records relating to oral and/or written reprimands will cease to have any force and effect and will be removed from an employee's personnel file twelve (12) months after the date of the oral and/or written reprimand if there has been no other discipline imposed during the past twelve (12) months.

Records of other disciplinary action will be removed from an employee's file under the same conditions as oral/written reprimands after twenty-four (24) months if there has been no other discipline imposed during the past twenty-four (24) months.

The retention period may be extended by a period equal to employee leaves of fourteen (14) consecutive days or longer, except for approved periods of vacation leave.

24.07 - Polygraph Stress Tests

No employee shall be required to take a polygraph, voice stress or psychological stress examination as a condition of retaining employment, nor shall an employee be subject to discipline for the refusal to take such a test.

24.08 - Drug Testing

The Employer may randomly test, for drugs and alcohol, employees who have direct contact with inmates or youths, in the Departments of Rehabilitation and Correction and Youth Services and for all employees in classifications listed in Appendix M.

Unless mandated by federal law or regulation, there will be no random drug testing of employees covered by this Agreement, except as otherwise specified in this Agreement. A listing of PCNs and the names of employees shall be provided to the Union one (1) month after this Agreement is effective. Thereafter, the list shall be provided to the Union representative designated by the Executive Director, two (2) times each year. Any drug or alcohol testing shall be conducted pursuant to Appendix M.

Explanation:	This section establishes a random drug testing program for certain employees of DR&C and DYS, and employees in Safety Sensitive Positions as listed in Appendix M.  The list of PCN’s and names of employees to be randomly tested shall be provided to the Union twice each year.
Attention:	Agency Directors; Agency Labor Relations and Personnel Officers; Department of Administrative Services, Human Resources Division, Office of Personnel Services; Staff Representatives, Union Officials.
Instructions:	Employer representatives should direct their questions regarding random drug testing for bargaining unit employees should be submitted to the DAS/HRD Office of Policy Development.  Bargaining Unit employees should direct their questions to their Staff Representatives and/or Union Officials.
Effective Date:	Testing of employees in Safety Sensitive Positions shall not begin until such time as these employees are notified of this contract provision and are trained on random drug testing procedures.

24.09 - Employee Assistance Program

In cases where disciplinary action is contemplated and the affected employee elects to participate in an Employee Assistance Program, the disciplinary action may be delayed until completion of the program. Upon notification by the Ohio EAP case monitor of successful completion of the program under the provisions of an Ohio EAP Participation Agreement, the Employer will meet and give serious consideration to modifying the contemplated disciplinary action. Participation in an EAP program by an employee may be considered in mitigating disciplinary action only if such participation commenced within five (5) days of a pre-disciplinary meeting or prior to the imposition of discipline, whichever is later. Separate disciplinary action may be instituted for offenses committed after the commencement of an EAP program.