of Ohio and SEIU/District
OPINION AND AWARD
In the matter of Arbitration
State of Ohio, Office of Collective Bargaining and the Ohio Department of
Rehabilitation and Correction
An arbitration hearing was conducted March 9, 2005 at the Offices of
Collective Bargaining, Columbus, Ohio. The parties provided the arbitrator with
a list of stipulated documents which included the Collective Bargaining
Agreement, The Grievance Trail, The Discipline Trail, and the Standards of
The grievant was not present at 9 a.m. when the
hearing started but arrived at a later time.
The Union raised a procedural objection stating
that they believed the grievant had been charged with the wrong rule violation.
The Arbitrator made note of the objection and stated that he would
examine that issue while considering all the evidence presented.
With this understanding the parties agreed the
case was properly before the Arbitrator for determination.
The advocates submitted numerous factual
The matter came to arbitration as the result of
a grievance filed July 9, 2004. That
grievance asserts management violated Article 8.01 and 8.02 of the Collective
Bargaining Agreement when they terminated Mr. Heimberger.
All parties were given full opportunity to
examine and cross examine witnesses, present evidence, and arguments which they
did competently and professionally.
The parties stipulated the issue before the
arbitrator could be phrases as: Was the
Grievant’ removal for just cause? If
not, what shall the remedy be?
8 - DISCIPLINE
The Grievant has been an employee of the Ohio
Department of Rehabilitation and Correction since August 6, 1984.
At the time of his removal the grievant was employed as a parole officer
with the Adult Parole Authority.
January 29, 2004 the grievant was involved in a one car accident.
The grievant’s blood alcohol content after the accident was .3202. He pled no contest and was convicted of Operating a Vehicle
At the time of the accident he was in
possession of a loaded firearm and eighteen rounds of ammunition.
Mr. Heimberger failed to notify management of
his OMVI conviction. His driving
privileges were initially suspended and later reinstated for occupational
He was terminated July 7, 2004 for violation of
the Departmental Standards of Conduct.
asserts that this is a very serious matter.
They stated that the accident took place about 5:30 p.m. about 30 minutes
after he left work.
He was wearing his loaded firearm at the time.
The Highway Patrol Officer who responded took the gun and transported the
grievant to a hospital where he fell off a gurney.
The grievant refused treatment until he talked to an attorney.
He was permitted to make a call and he called the Richland County
Finally he allowed test to be done about 9 p.m.
It was discovered that he tested at a level four times the legal limit
and that he was taking prescription anti-depressants which he had also not
reported to the employer as required by Department Policy.
He had alcohol in his car and in his briefcase.
He violated the weapons policy by not
disclosing his use of prescription drugs and by wearing his firearm while
intoxicated. This is also a
violation of Ohio State Law.
Finally, the State argues the employee has
brought significant discredit upon the employer by his actions.
Union points out that the grievant is a nineteen and one half year employee.
They argue that the penalty is not commensurate with the action taken.
They note he has a spotless record and good job performance.
The Union indicates that a coworker told an
investigator that he did not smell alcohol on the grievant.
The Union notes that other employees have been
convicted of an OMVI and not terminated for their offense.
The major argument advanced by the Union is
that the grievant was charged with a violation of Rule 39 and he should have
been charged with a violation of Rule 25.
The grievant did apologize for his actions.
The grievant personally advanced another
defense by stating that he had filed a HIPPA
violation and thus no one should have access to the amount of blood alcohol
present in his system.
us begin by examining the actual charge(s) levied against the grievant by the
employer. The grievant received a
letter from Deputy Director Harry Hagaman dated May 12, 2004 in which he was
informed of the charges facing him. Specifically
he was charged with a violation of Rule 7,
Rule 25, Rule 39 and Ohio Revised Code 124.34 
The specific actions charged were stated in
“It is alleged that you failed to notify your
Regional Administrator of your being prescribed medication in the form of an
anti-depressant as mandated in the APA Weapons Policy 104-TAW-01.
It is alleged that you were in possession of a
fully loaded firearm while under the influence in violation of the APA Weapons
It is alleged that you failed to notify your
supervisor or any other manager in the Mansfield Region of your citation for
OMVI, Failure to Control.
It is alleged that on January 29, 2004 in
Ashland, Ohio, your actions were such that they could bring discredit to the
On June 8, 2004 the grievant elected to waive
his pre-disciplinary conference stated that he had consulted with his Union.
Upon notice from the grievant the assigned
hearing officer, Kara Peterson, reviewed the investigative report and issued her
report without benefit of hearing from the grievant.
In her report she concluded: “From all the
information and attachments presented in the investigative report it is the
Hearing Officer’s opinion that there is just cause for discipline under Rules 7, 25, 39 & 49 of
the Standards of Employee Conduct.
The joint exhibits offered at the Arbitration
hearing indicate that the grievant was convicted of OMVI after a no contest
plea, in Ashland County on April 13, 2004. He was sentenced to 15 days in jail with 12 suspended and
three bring served while completing a “Drivers Intervention Program.”
Mr. Heimberger was notified of removal from
employment by means of a letter dated June 23, 2004.
In that letter Harry E. Hagaman, Deputy Director and Appointing Authority
for the Adult Parole Division, stated “Your are being removed for the
You failed to notify the
Regional Administrator of being prescribed medication in the form of an
anti-depressant as mandated in the APA Weapons Policy 104-TAW-01.
You failed to notify your
supervisor or any other manager in the Mansfield Region of your citation for
OMVI and failure to control.
This is a
violation of the Standards of Employee Conduct Rule: Rules #7 and #39.
The Union, in a good faith effort to represent
the grievant, has made much of the contents of this letter.
The Arbitrator would agree that the letter is
not artfully written. We do not
know why Mr. Hagaman did not include the other two charges and he did not offer
testimony explaining his thoughts or actions.
For whatever reason the charges we are limited
to considering are alleged infractions of rules 7 & 39 even though more than
adequate evidence exists to prove a violation of all four charges.
Rules 7 states: “Failure to follow post
orders, administrative regulations, policies or directives.”
Rule 39 states: “Any act that would bring
discredit to the employer.”
The grievant and the union would prefer to have
had the grievant charged with a violation of Rule 25.
It is not the option of the Union to select the charge.
The question before this Arbitrator is whether
Rule 7 and/or Rule 39 violated?
There is no question that Rule 7 was violated.
The grievant failed to report his use of prescription medication.
The grievant failed to report his OMVI.
To determine if the grievant brought discredit
on the employer we must examine the facts as they have been established.
The grievant was involved in an accident 30
minutes after he left work. He had
in his possession an empty vodka bottle and a half full vodka bottle.
He smelled of alcohol when the Highway Patrol arrived.
His blood alcohol level was .3202 even though he was tested almost four
hours after the accident.
His blood alcohol level and his behavior at the
hospital would indicate that he was, in the vernacular, “falling down
He insisted on calling the County Prosecutor.
He threatened the Highway Patrol Officer who cited him.
He was wearing a loaded firearm.
The mission of his position was to guide
parolees to abide by the law.
Of course he brought discredit on his employer.
The Union proffered that one of his co-workers
stated during the investigation he had not smelled alcohol on the breath of the
grievant. Even if that employee had
been present to offer testimony, it would have proven nothing except that
employee apparently lacked a keen sense of smell.
A reasonable person would have to conclude that, in order to test at
.3202 four to five hours after leaving work and not being able to have consumed
alcohol while at the hospital or in the presence of the Highway Patrol, there
must have been some alcohol present during working hours.
But the employee is not charged with drinking
on the job. He is charged with the
impact of his actions on the employer.
The grievant would have the Arbitrator ignore
the blood alcohol results because he states he filed some type of a complaint
under HIPPA relating to the hospitals handling of the results.
This defense is not compelling for several
The grievant had an opportunity to raise these
preliminary matters during his pre-disciplinary meeting but he chose to waive
it. He cannot now show up at
Arbitration and offer a new way to stop the Arbitrator from considering evidence
he has before him.
The results of the blood alcohol test were
included in the documents offered as joint exhibits at the beginning of the
hearing. If the grievant had a
concern about the information going before the Arbitrator, it was incumbent on
him to arrive at the hearing in time to consult with his Union representative.
The matter of suppression of medical evidence
is something more appropriate to have been argued in a court of law prior to the
day of arbitration. Rule 39 permits
a wide range of discretion on the part of the employer in determining the
appropriate penalty on the first offense. Based
upon the circumstances the employer may impost anything from a written reprimand
As every Arbitrator notes, removal is so
serious that it merits a very close examination of the appropriateness of the
In examining the appropriateness of removal
from employment in this matter, the arbitrator will examine three areas:
What have other arbitrators done in similar
If the employee were returned to work, can he
successfully perform his duties?
Based upon his long tenure with the department,
are there other mitigating circumstances that would support a reduction in the
level of discipline?
Arbitrator Calvin William Sharp in a 1990 case
considered a similar matter when an Ohio Highway Patrolman was arrested for DUI
following an off duty accident.
He determined that “where the entire matter
was covered extensively by radio, television, and newspapers, it impaired the
grievant’s ability to perform his job.”
It that case he determined that removal was the appropriate penalty. 
In another case Arbitrator Hyman Cohen
concluded: “City had just cause to discharge police officer who drove under
influence, where his credibility as police officer in enforcing laws … has
been seriously compromised,” 
While other Arbitrators have reached different
conclusions in different cases, Arbitrators often support termination for a
first offense if the incidents are of a serious enough nature to demand such a
The second question relates to the ability of
the grievant to resume his job duties. Newspaper
articles can never provide adequate support of management’s actions by
themselves. They do, however, show
a clear pattern of how seriously the matter was viewed in Richland County.
A judge would have good reason to question the
effectiveness of a Parole Officer who has been judged guilty of not only a
serious infraction, but also of showing extremely poor judgment by his actions
surrounding that infraction.
Deputy Director Hagaman testified that
returning the grievant to Richland County could lead to negative consequences
for the Department in the Richland County area.
Finally, I must consider if there are other
circumstances that would mitigate against a penalty of termination of
This is an employee who has served for nearly twenty years.
According to the jointly stipulated documents, he has faced significant
medical and emotional challenges.
He states that he has remorse over his actions.
He completed the Court Ordered Training and, according to his testimony,
his counselor has apparently not recommended further intervention.
There is a temptation to substitute my judgment
for that of the employer and reinstate the employee.
I am dissuaded from doing so by the
grievant’s own testimony. His
testimony regarding when he was drinking and whether he was hiding the fact from
his wife was not forthcoming and in conflict with statement he made to the
He would have this Arbitrator believe that he
was not unruly at the hospital in direct contradiction to the findings of the
investigator who interviewed the State Trooper and others at the hospital.
His references to the County Prosecutor being
nearly his best friend, and then his allegation that the prosecutor was not
correct when he stated that he did not know the grievant that well.
The grievant was also unable to offer a clear
and consistent explanation of the presence of a half empty and a completely
empty bottle of Vodka in his car and in his briefcase.
Finally the grievant, when given the
opportunity to add anything he wanted to, stated “I am sorry that I was
charged with an OMVI BUT
(emphasis added) and then went on to offer a litany of excuses.
The grievant remains largely unrepentant regarding his actions, and
continues to fail to take responsibility for the damage has been done.
At no time did the grievant acknowledge the
import of such a high blood alcohol reading.
Instead he testified “I disagree with the blood test.”
In cannot, under the standards of just cause,
find any reason to overturn the decision to terminate the grievant.
Just cause does exist to support the
disciplinary action. I find no
The grievance is denied.
submitted this 27th day of April, 2005 at London, Ohio.
N. Eugene Brundige,
 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996
 All charges are from a document jointly entered into evidence, titled Ohio Department of Rehabilitation and Correction, Standards of Employee Conduct.
 The State Statute that governs the conduct of all State of Ohio employees.
 In re State of Ohio and Fraternal Order of Police, Ohio Labor Council, Inc. Unit 1., 94 LA 533, February 23, 1990
 In re CITY OF FAIRBORN, OHIO and FAIRBORN NEW CITY LODGE NO. 48 OHIO LABOR COUNCIL, INC., FRATERNAL ORDER OF POLICE, 119 LA 754, October 17, 2003.