ARBITRATION DECISION NO.:
649
UNION:
OSCEA, Local 11, AFSCME,
AFL-CIO
EMPLOYER:
Ohio Department of Mental
Retardation and Developmental Disabilities
DATE OF ARBITRATION:
September 24, 1997
DATE OF DECISION:
October 29, 1997
GRIEVANT:
Carson Keiffer
OCB GRIEVANCE NO.:
24‑15‑(96‑12‑02)‑0500‑01‑04
ARBITRATOR:
Anna DuVal Smith
FOR THE UNION:
Dennis Falcione, Staff
Representative
FOR THE EMPLOYER:
Brian D. Walton, Labor Relations
Officer, MRDD
John McNally, Labor Relations
Specialist, Office of Collective Bargaining
KEY WORDS:
Abuse of a Patient
Credibility of Witnesses
Criminal Charges
Excessive Force
Grievant's Testimony
Just Cause
Removal
Written Statements
ARTICLES:
Article 24 -
Discipline
§24.1
– Standard
§4.04 –
Pre-Discipline
§24.05
– Imposition of Discipline
FACTS:
This case
concerned the removal of an employee at the Youngstown Developmental Center
(YDC) who had seven years of service as an Activity Therapy Specialist I. The
incident that led to the grievant's removal occurred on October 1, 1996, when
the grievant allegedly abused a client. The grievant had one other disciplinary
action on his record: a two‑day suspension for improper conduct/ failure
to accept a directive from supervisor, and poor performance. The Ohio Highway
Patrol investigated the October I incident, and presented the case to the
Mahoning County Prosecutor's Office on January 20, 1997. After reviewing the
case, the Prosecutor's Office declined to initiate criminal charges against the
grievant.
The grievant
filed for unemployment benefits from the Ohio Bureau of Employment Services
(OBES) o November 25, 1996. OBES initially determined that the grievant was not
entitled to benefits because OBE found that the Employer discharged the
grievant for just cause, but OBES reversed its decision on March I .1997. The
Employer stipulated that it lost all subsequent appeals of the OBES decision.
EMPLOYER’S
POSITION:
The
Employer argued that the main issue was whether the grievant abused the client.
The Employer contends that it presented credible testimony and evidence to
carry its burden of proof Trained professionals; two of which were eyewitnesses
to the October I incident, testified that the grievant had no reason to
restrain the client to begin with, and that he used unnecessary and excessive
force when he pushed the client's face to the floor, and again when he slammed
the client against the wall.
The
Employer asked the Arbitrator to weigh the testimony of its credible witnesses
who had no reason to lie, against the self‑serving testimony of the
grievant. The grievant did not deny taking the client to the floor or pinning
him to the wall, but only gave a slightly different version of what occurred.
The Employer stressed that the Arbitrator did not have the authority to modify
the discipline once the Arbitrator found that abuse occurred and asked the
Arbitrator to deny the grievance in its entirety.
The
Employer also pointed to the Gilherl decision, in which Arbitrator Nelson
upheld the Emplover's removal order even though there was no evidence of injury
to the client, no immediate report filed, and no criminal charges filed.
UNION’S
POSITION:
The Union
argued that because the Employer filed criminal charges against the grievant
without permitting him to confront the witnesses against him, the Employer
violated his Constitutional right to due process. Those witnesses, the Union
contended, were less credible than the grievant, who had many more years
experience than the witnesses, and was familiar with the client. The grievant
knew what had to be done in this particular situation. The Union also argued
that two witnesses came forward long after the October I incident and the
statements of the witnesses changed over time, until their recollections of the
incident were nearly identical.
The Union
maintained that the grievant did not commit abuse because prior to the
grievant)s arrival on the scene, the client had been agitated for several
hours. The client was aggressive and the grievant took him to the floor not to
harm him, but to protect himself and others from physical harm. The grievant is
a long time employee who has a good work record. The charges levied by the
Employer, which were found by the Mahoning County Prosecutor and OBES to be
false, have ruined the grievant's life.
ARBITRATOR’S OPINION:
The
evidence against the grievant came from three eyewitnesses whose written
statements and testimony while not identical, do substantially concur on what
occurred on October 1. The witnesses all testified that the techniques used
were inappropriate in light of what they had been taught. Based on the facts,
the Arbitrator found that when the client's behavior escalated, the grievant
used excessive force in a manner harmful and disrespectful to the client. All
three witnesses thought that the grievant was out of control, one to the point
that she was afraid to witness more; another to the point that he intervened.
The
Arbitrator also found efforts to discredit the statements of the witnesses to
be unsuccessful. The Union offered no credible motive to support the claim that
the witnesses lied in their written statements or sworn testimony. None of them
had any bias against the grievant or reason to conspire against him. While the
affidavits taken for the Employer's appeal of the OBES decision differ in some
degree from the earlier written statements and contain certain similar
features, they are not identical. The fact that the witnesses' stories are not
precisely the same as in their initial statements is not remarkable. This is to
be expected over time, especially when questioned by different examiners.
The
Arbitrator found the Union's claim that procedural improprieties occurred to be
unsubstantiated. The fact that the eyewitnesses did not give written statements
for two weeks or more after the October I incident does not mean the incident
did not occur as they described it. Although YDC staff did not fully meet their
obligations in this matter, that did not seriously undermine the integrity of
the evidence against the grievant, nor does it excuse his conduct.
The
Arbitrator found the Union's claim that the grievant acted in self‑defense
to be without merit. None of the eyewitnesses described imminent danger or a
threat of injury in their statements. The grievant testified that his
experiences with that particular client indicated that the client's aggression
was about to escalate, but the Arbitrator stated that this familiarity should
have caused the grievant to take appropriate, nonabusive measures.
AWARD:
The grievance
was denied in its entirety, as the Arbitrator found that the Employer did not
violate the Collective Bargaining Agreement when it terminated the grievant for
client abuse.
TEXT OF THE OPINION: * * *
VOLUNTARY
LABOR ARBITRATION TRIBUNAL
OPINION
AND AWARD
********************************************
In the Matter of Arbitration * Anna DuVal Smith, Arbitrator
*
Between *
* Carson
Keiffer
OHIO CIVIL SERVICE * Case No. 24‑15‑961202‑0500‑01‑04
EMPLOYEES ASSOCIATION *
LOCAL 11, AFSCME, AFL/CIO, * Removal
CARSON J. KEIFER, GRIEVANT *
*
and *
*
OHIO DEPARTMENT OF *
MENTAL RETARDATION AND *
DEVELOPMENTAL DISABILITIES *
********************************************
Appearances
For the Grievant: For
the Ohio Civil Service Employees Assn.:
Lynn Sfara Bruno, Esq. Dennis
Falcione
412 Boardman‑Canfield Road Staff
Representative
Youngstown, Ohio 44512
For the Ohio Department of Mental Retardation and
Developmental Disabilities:
Brian D. Walton
Labor Relations Officer
Ohio Department of Mental
Retardation and Developmental Disabilities
John McNally
Labor Relations Specialist
Ohio Office of Collective
Bargaining **1**
1. HEARING
A hearing
an this matter was held at 9:10 a.m. on September 24, 1997, at the Youngstown
Developmental Center (YDC) in Mineral Ridge, Ohio before Anna DuVal Smith,
Arbitrator, who was mutually selected by the parties from their permanent
panel, pursuant to the procedures of their collective bargaining agreement. The
parties stipulated the matter was properly before the Arbitrator and presented
one issue on the merits, which is set forth below. They were given a full
opportunity to present written evidence and documentation, to examine and cross‑examine
witnesses, who were sworn and excluded, and to argue their respective
positions. Testifying for the Employer was Cindy Renner (Program Director,
YDC). Robert Sikora, Jr. (Workshop Specialist) and Wayne Bonner, both employees
of Mahoning County Board of Mental Retardation and Developmental Disabilities
(MC MRDD), also testified for the State by subpoena. Also in attendance was
Gary C. Jones, Operations Director of YDC. Testifying for the Grievant were
Rosalie Bland (Therapeutic Program Worker, YDC), Marc Farran (Quality Assurance
Coordinator, YDC), both by subpoena, and the Grievant, himself. A number of
documents were admitted into evidence (Joint Ex. 1‑8, Employer Ex. 1‑2,
and Grievant Ex. 1‑2). The hearing concluded at 4‑30 p.m. on
September 24 following oral argument, whereupon the record was closed. This
opinion and award is based solely on the record as described herein.
II.
BACK.GROUND
At the
time of his removal for client abuse, the Grievant was employed at the
Youngstown Developmental Center (YDC) as an Activity Therapy Specialist 1. He
had
**2**
been employed by the State for
approximately ten years, seven of which were in foresaid classification. Until
1994 he met or exceeded performance expectations, but his 1994 evaluation
contains several "below ratings and comments on areas for improvement
(Joint Ex. 7). No evaluation was submitted for 1995. He had one disciplinary
action on his record, a two‑day suspension for improper conduct/failure
to accept a directive from a supervisor, and poor performance. This action was
grieved in 1995, but the grievance was withdrawn the following year. The
Grievant had received training on the physical intervention techniques approved
for use (Controlling Outbursts through Preventive Exercise, also known as
"COPE") (Employer Ex. 2) and was informed on and agreed to abide by
Administrative Rules regarding unusual incidents, client abuse/neglect and
restraint of residents (Union Ex. 1).
The
incident that led to the Grievant's removal occurred at the MASCO Meshel
workshop, which is operated by the Mahoning County Board of Mental Retardation
and Developmental Disabilities (MC MRDD) and in whose programs some of YDC's
clients participate. Although MASCO Meshel workshop staff is responsible for
YDC clients while they are at the workshop, behavioral outbursts by YDC clients
may result in YDC staff being summoned to escort the client back to the Center.
One such outburst occurred on the morning of October 1, 1996.
The client
involved has a history of verbal and physical aggression towards other clients
and staff, and is on a program targeted towards modifying these behaviors. He
may or may not have already been distraught when be arrived at Meshel that morning,
but he did become upset later and eventually became verbally aggressive and
started to remove his **3**
clothing despite verbal
intervention by Robert Sikora (an MC MRDD Workshop Specialis with eight years
of seniority), who was working with the YDC group that morning. The room was
cleared of other clients, and furniture was pushed aside. Sikora used physical
restraint (a basket hold) when the client became physically aggressive towards
him, taking him to a chair, giving him space, and generally letting him settle
down. The Grievant and Rosalie Bland, who had been dispatched from YDC to pick
the client up, arrived. According to Sikora and Wayne Bonner (an MC MRDD
Workshop Specialist 2 with eleven years of experience who was summoned to the area)
the client was under control until the Grievant told him it was time to go back
to YDC. The client once again became verbally aggressive and spit at the
Grievant. Sikora, Bonner and Bland all testified the Grievant then took the
client from the chair to the floor and restrained him there, using a hold none
of them knew to be proper technique from their training. According to these
witnesses, the Grievant was on top of the client's upper body, holding his face
while restraining his head on the floor. Bonner and Bland tried to keep the
client from kicking. Sikora may have offered assistance, but the Grievant
responded that he had it The Grievant testified he knew from his experience
with the client that he was escalating from verbal aggression to physical, so he slid the client off the chair and
to the floor to get him into a COPE hold in order to achieve immediate
neutralization. He further said he had not been trained on how to take a client
from a chair to the floor and that the training he did receive was on calm
trainers not on agitated clients.
After a
few minutes, the client quieted down, was released and began to exit the
workshop, escorted by Sikora, Bonner and the Grievant, with Bland following. As
they got **4**
to the door, though, the client
spit at the Grievant again, said Sikora and Bonner, whereupon the Grievant put
his arms against the client, pushed him through the door into the hallway and
pressed him against the wall. The Grievant testified someone warned him the
client had tried to break windows in the hallway area, so he held the client's
arms for safety, and it was this that made the client act out again,
necessitating neutralization against the wall. In any event, the client then
spit on the wall. Sikora and Banner testified the Grievant put the client's
shirt against the saliva on the wall, then lifted him up and down, rubbing his
face in a wiping motion and saying, 'You are going to clean this up." The
Grievant says he used the Grievant's hand, not his face. Both Sikora and Bonner
testified they thought the Grievant's actions in the hallway did not constitute
proper restraint and Bland testified it was not proper COPE technique as she
had learned it. Sikora testified he thought the Grievant was out of control
because of the amount of force involved, so he stepped in, A two‑person
escort was employed to get the client to the van, where the Grievant placed him on the floor between the first
and second rows of seats according to Sikora and Bonner, on the second seat
according to the Grievant. The party of Bland, the Grievant and the client then
returned to YDC.
Sikora
filed an Incident Report that same day. Bonner did not, although he testified
be did discuss it with the workshop director, John Ryan, that same day and did
write a report two weeks later, on October 14. Neither the Grievant nor Bland
completed an Unusual Incident Report upon returning to YDC. Bland testified she
had been involved in a prior case that caused her to be shunned, threatened and
closely watched by coworkers, and to have her property vandalized. Her fear
made her reluctant to report what **5**
she had witnessed, though she knew
she should have done so. No one called Help Hotline Youngstown Development
Center did not learn of the incident until the case manager at MC MRDD returned
from vacation and opened her mail (Joint Ex. 6, Employer Ex. 1). Cindy Renner,
Program Director of YDC, testified she first learned of the case late on
October 24 by means of a phone call. She requested the report, which she got by
fax the next day. She then launched an internal investigation, identifying the
staff involved and notifying the superintendent. The Grievant's statement was
taken the following Monday, October 28, and Bland's on October 29. The Grievant
was placed on paid administrative leave October 29 and informed of a pre‑disciplinary
conference to be conducted November1. Quality Assurance Coordinator Mark Farran
issued his report of the Major Unusual Incident investigation, which included
interviews with and statements of Bland, Sikora, Bonner and the client on
October 31. The pre‑disciplinary conference was held on November 1, with
the Grievant, his Union representative and attorney in attendance. Neither side
called any witnesses. An order removing the Grievant from his position was
signed November 21, 1996. A grievance protesting this action was filed November
27, alleging violation of all pertinent articles of the Contract, in particular
Articles 2, 24.01, 24.02, 24.04, and 24.05. Being unresolved at lower steps of
the grievance procedure, the case was appealed to arbitration where it
presently resides for final and binding decision, free of procedural defect.
Meanwhile,
the case was investigated by Trooper Gerald Funelli of the Ohio Highway Patrol.
He presented the case to Assistant Mahoning County Prosecutor John
**6**
Ausnehmer on January 20, 1997. Following discussion of the
case, Mr. Ausnehmer declined to initiate criminal charges against the Grievant
(Joint Ex. 5). The Grievant filed for unemployment on November 25, 1996.
Benefits were initially suspended by determination that he had been discharged
for just cause, but this decision was reconsidered, then appealed and reversed
by the Board of Appeals on March 19, 1997. The Employer stipulates it lost all
subsequent appeals. As to MC MRDD, Superintendent Charles R. Holden wrote a
letter to Paul Young, Superintendent of YDC on March 17, 1997, in which he
explained the delay in reporting the
incident and states that "discipline bas been issued to staff found to be
negligent in their duty to follow established procedure" (Joint Ex. 6,
Employer Ex. 1).
III. STIPULATED ISSUE
Did the Employer violate the Collective Bargaining Agreement
when it removed Grievant, Carson Keiffer, for client abuse? If so, what shall
the remedy be?
IV.
PERTINENT CONTRACT PROVISIONS
ARTICLE 24
‑ DISCIPLINE
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 cam 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 board 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. **7**
V.
ARGUMENTS OF THE PARTIES
Argument
of the Employer
The
Employer argues that the main issue is whether the Grievant abused the client.
It contends it presented credible testimony and evidence to carry its burden of
proof. Trained professionals testified
the Grievant had no reason to restrain the client to begin with, that he
pushed the client’s face to the floor using unnecessary and excessive force,
and slammed him to the wall, pinning him there with his hands behind his back
and lifting him by his arms to his tip‑toes.
Against
the testimony of eyewitnesses and the opinion of professionals (including a
certified trainer) that these techniques were not proper, stands the Grievant's
denials and unacceptable excuses. The Grievant tries to present himself as a
good employee who was only trying to do his job under adverse conditions. He
claims no one assisted him, but MASCO Meshel staff testified their offer was
rebuffed. He relies on the client's history of aggressive behavior, but the
Grievant was familiar with the client, was trained in how to handle aggressive
outbursts, and had probably encountered such incidents before in his seven
years as an Activity Therapy Specialist. As to the immediacy of the
investigation and action taken, this should not be an issue, claims the
Employer, as it has no bearing on the guilt of the Grievant, the only YDC staff
present testified she was afraid to report it because of her experience in a
prior case, Meshel staff who were derelict in reporting the incident were disciplined, and YDC acted as soon as
it knew of the incident. YDC should not be held accountable for something over
which it had no control. Regarding the Grievant's claim the lack of criminal
charges and outcome of unemployment proceedings should **8**
bear on the outcome of this case,
the Employer argues the arbitrator has an obligation under the Collective
Bargaining Agreement to provide a review independent of collateral proceedings.
In support
of its position, the Employer offers the Arbitrator Nelson's Gilberr decision
(Parties' Case No. 23‑13‑941104‑0850‑01‑04) which
it contends is very similar to the instant one, there being no evidence of
injury to the client no immediate report, and no criminal charges filed. Yet
the arbitrator in that case held injury is not a necessary element of abuse
and, while he believed the employees were remiss in not reporting the incident,
he held this did not excuse that grievant's behavior.
In conclusion,
the Employer asks the Arbitrator to weigh the testimony of its two credible
witnesses who had no reason to lie, who have worked in the field for a number
of years and know the difference between Proper and improper handling of
clients. Against this is the self‑serving testimony of the Grievant who
did not deny taking the client to the floor or pinning him to the wall, but
only gave a slightly different version of what occurred. It reminds the
Arbitrator she has no authority to modify the discipline once she finds abuse
has occurred, and asks that she deny the grievance in its entirety.
Argument of the Grievant
The
Grievant argues that since the Employer filed criminal charges against him, his
Constitutional rights to due process were violated when he was not permitted to
confront the witnesses against him. Those witnesses, he contends, are less
credible than he. He has many more years experience than the two witnesses from
MASCO Meshel, he was familiar with the client and knew what was to be done. They
were hesitant to testify, even to the **9**
point of having to be accompanied
to the arbitration hearing by their supervisor. They were just trying to save
their jobs by doing as directed by their supervisor. The third witness, from
YDC, was discredited by the investigator who contradicted her sworn testimony
that she was told what the others said about the incident. She was the only
person present in the van and the only one who saw the entire incident, yet her
testimony is inconsistent and she was hesitant to testify. Two witnesses came
forward long after the fact, and the statements of all the witnesses changed
over time, each adding details in the retelling. By April 1997, they were
virtually identical. If the incident was so serious, why were there no reports
filed and the Help Hotline not contacted? And why was the client not examined
by a nurse?
The
Grievant maintains that the first statements are true and establish that he did
not commit abuse. 71e client had been agitated for several hours when the
Grievant arrived. The room, with clothes tossed around, furniture pushed to one
side, and clients removed, signaled there was a problem. The client was
aggressive and the Grievant took him to the floor not to harm him, but to
protect himself and those in the room from physical violence. The statement of
the client is unreliable, says the Grievant, but even he does not claim he was
abused. The words be used were, "hard COPE."
In the
view of the Grievant, YDC not only did not prove the charge, but if he were
guilty, then YDC is too because it allowed him to stay and interact with the
client for four weeks. He is a long‑service employee of good work record
whose life has been ruined by charges found false by both the county prosecutor
and State unemployment board. The Arbitrator should not allow her mind to be
clouded by the attempted submission of stale **10**
discipline, and she should
disregard testimony about discipline of. MASCO Meshel employees that wits
stricken from the record on objection of the Grievant. She should find the
Grievant not guilty, too, and return him to his former position and make him
whole.
VI.
OPINION OF THE ARBITRATOR
As the
Ohio Supreme Court held in the parties Dunning case (59 Ohio St. 3d 177, 572
N.E. 2d 71), the parties’ just cause standard for disciplinary action is
modified by the third sentence of Article 24.01 for termination cases involving
abuse. Therefore, the task before me is to determine whether the Employer met
its burden to show by a high degree of proof that the Grievant committed abuse.
In my opinion, it did.
The
evidence against the Grievant comes from three eyewitnesses whose written
statements and testimony before this Arbitrator, while not identical, agree in
the main about what occurred and whether the techniques used were appropriate
in light of what they had been taught. Only one of these witnesses (Sikora) saw
the entire episode, each saw what s/he did
from a different vantage point, and each described it different words,
but their stories are essentially the same: When the client's behavior
escalated after YDC staff arrived at the workshop, the Grievant used excessive
force in a manner harmful and disrespectful to the client, counter to his
training and outside the parameters of the client's therapeutic plan. He did so
at least twice, once in the workshop when he put the client on the floor,
restrained his upper body and pressed his face to the floor, contorting it with the force of his hold, and again in
the hall when he pinned him to the wall and lifted him to his toes with his
arms behind him. All three witnesses thought the Grievant was out of control,
**11**
one to the
point that she was afraid to witness more, one to the point that he intervene
though his previous offer to assist had been rebuffed.
The
Grievant challenges the competence of these witnesses, however all three are
experienced with this client population, and their evaluation of the propriety
of the manual restraints used was confirmed by a fourth professional who, while
not an eyewitness to the incident, is a
trainer in COPE techniques and participated in training the Grievant.
Other
efforts to discredit the testimony of these witnesses were similarly
unsuccessful. Bland's admissions were against her own interest Her stated
reason for not coming forward immediately, as well as all three witnesses'
reluctance to testify against a peer, is understandable, particularly in light
of her prior experience. The Grievant offered no credible motive for his
allegation that Bland and the other witnesses lied in their written statements
or sworn testimony. None of the three had any bias against the Grievant or
reason to conspire against him. They are not even employed at the same
institution. While it is evident that the affidavits taken for the Employer's
appeal of the unemployment decision differ in some degree from the earlier
written statements and contain certain similar features among themselves, they
are not identical as claimed by the Grievant. What similarity they do have can
be accounted for in large measure by their having been evidently taken by the
Attorney General's office by telephone. The fact that the witnesses' stories
were not precisely the same as in their first statements is also not
particularly remarkable. This is to be expected over time and retelling,
especially when questioned by different examiners. The fact remains that the
original statements, later ones and sworn testimony in arbitration, do not
differ in their essential elements. Moreover, when questioned about
**12**
her affidavit by counsel for the
Grievant, Bland did not disavow its substance but said it was a true statement.
She remained steadfast in her testimony despite her fear and the vigorous
efforts of Grievant's Counsel.
The
Grievant also raises issues of procedural improprieties, but also to no avail.
The fact that Bonner and Bland did not give written statements for two or more
weeks does not mean the incident did not occur as they described it. Neither
does the Employer's failure to relieve the Grievant of his duties prior to
learning of the allegations and initiating the investigation. Although MC MRDD
and YDC staff did not fully meet their obligations in this matter, this did not
materially undermine the integrity of the evidence against the Grievant, nor
does it excuse his conduct.
The
Grievant offers the excuse of self‑defense. This defense is unproven.
Sikora described the client to be as aggressive as he was earlier. No one
described imminent extreme violence or real threat of serious injury. The
Grievant testified his experience with the client indicated his physical
violence was about to escalate, but this very experience, as well as his
familiarity with the client’s behavioral program and his training in
intervention techniques and self‑control, should have caused him to take
appropriate, nonabusive measures.
The
Grievant suggests the Employer attempted to cloud the mind of the Arbitrator by
raising stale discipline and other evidence she excluded from the record.
Arbitrators are neither judges nor juries. We must often bear inadmissable
evidence in order to rule on its admissability. Mainstream arbitral practice is
liberal admission because there is more danger we will beat too little than too
much. In both cases it is then out duty to give **13**
appropriate
weight, including no weight at all, to what we hear, either on or off the
record. Accordingly, none of the evidence ruled inadmissable played any role
whatsoever in my decision. Similarly. I gave no weight to the decisions of the
assistant county prosecutor or to the State unemployment board. As I have
repeatedly stated, an arbitrator's decision must be based on the standards of
the Contract and the evidence placed before him or her. Had the parties wished discipline
for abuse to be adjudicated in other forums under other rules, they would have
bargained for it.
Regarding
the Grievant's due process and long‑service arguments, having found the
Grievant guilty of abuse, I lack the authority under the labor agreement to
modify the termination even if I were so‑inclined.
V11. AWARD
The
Employer did not violate the Contract when it terminated the Grievant for
client abuse. The grievance is denied in its entirety.
Anna
DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
October 29, 1997 **14**