OCB AWARD NUMBER: 2022

SUBJECT: / ARB SUMMARY # 2022
TO: / ALL ADVOCATES
FROM: / KRISTEN RANKIN
OCB GRIEVANCE NUMBER: / 15-03-20080910-0125-07-15
DEPARTMENT: / Department of Public Safety
UNION: / OSTA
ARBITRATOR: / Harry Graham
GRIEVANT NAME: / William Bowers
MANAGEMENT ADVOCATE: / Ryan Sarni
2ND CHAIR: / Lt. Charles Linek
UNION ADVOCATE: / Herschel Sigall
ARBITRATION DATE: / February 25, 2009
DECISION DATE: / April 14, 2009
DECISION: / GRANTED
CONTRACT SECTIONS: / Articles 19.01, 19.05
OCB RESEARCH CODES: / Back Pay Awards 118.806; Disparate Treatment 118.67; Just Cause-Concept Of 118.311; Reinstatement From Wrongful Discharge 118.801

HOLDING: Grievance GRANTED. The Grievant is restored to employment with full backpay and the incident is to be removed from his record.

At an April 4, 2008 breath alcohol recertification test, a number of troopers used a cheat sheet obtained from Trooper Maroon. The Grievant was accused and discharged. Trooper Maroon, who distributed the cheat sheet, claimed to have given a copy to the Grievant.

The Employer argued that the Grievant was terminated for violating Responsibility of Command and Performance of Duty. The Employer claimed that, as a Sergeant, the Grievant had a heightened responsibility to supervise people at the Canton post. The Employer argued that the Grievant failed in this because he had talked with Trooper Maroon about the copied exam as far back as 2007 and did not report the conversation. The Employer also argued that the Grievant twice contacted Maroon to obtain a copy of the cheat sheet, which Maroon supplied. The Employer argued that the Grievant acknowledged seeing the answer sheet and not coming forward.

The Union argued that the Grievant did not accept any materials from Maroon, and that Maroon simply put the cheat sheet on the Grievant’s desk when the Grievant had his back turned. The Grievant was unaware that he received the cheat sheet and did not take the sheet to the examination. The Union argued that upon learning about the cheating, the Grievant questioned Maroon, informed Inspector Yanni, the examination proctor, and contacted District Headquarters. The Union argued that Yanni receiving a written reprimand for his failure to properly administer the test and the Grievant being terminated is disparate treatment. The Union also cited the situation of Trooper Bradic who resigned and was restored to employment after it was determined that he cheated.

The Arbitrator found that the Grievant did not use the cheat sheet. The Arbitrator also found that the Grievant acted properly when learning of the cheating. The disparity in punishment for Yanni compared to the Grievant was not disparate treatment because Yanni works for a different department. However, the Arbitrator found that the difference between the Grievant and Bradic was disparate treatment. The Arbitrator determined that the Grievant should be restored to employment with all back pay for hours he would have worked. Any unemployment compensation or wages received can offset the backpay. The incident shall also be removed from the Grievant’s record.