of Ohio, Department of Natural Resources and
Order of Police
OPINION AND AWARD
In the matter of Arbitration
of Police, Ohio Labor Council, Inc.
The State of
Ohio, Department of Natural Resources
Number 25-17 (05-09-05) 01-05-02
An arbitration hearing was
conducted on November 9, 2005, at the Ohio Office of Collective Bargaining, in
The parties stipulated the issue in this case
to be: “Was the Grievant,
Watercraft Officer Rick Price, disciplined for just cause?
If not, what shall the remedy be?”
In a grievance dated May 4, 2005 the Grievant and FOP allege violation
of Articles 19.01 and 19.05 of the Collective Bargaining Agreement.
19 – DISCIPLINARY PROCEDURE
bargaining unit member shall be reduced in pay or position, suspended or
removed except for just cause.
The Employer will follow the principles of
progressive discipline. Disciplinary action shall be commensurate with the
offense. Disciplinary action shall include:
1. Verbal Reprimand (with appropriate notation in
However, more severe discipline may be imposed at any
point if the infraction or violation merits the more severe action.
The Employer, at its discretion, is also free to
impose less severe discipline in situations which so warrant.
The deduction of fines from an employee’s wages
shall not require the employee’s authorization for the withholding of fines
from an employee’s wages.”
parties were able to stipulate many of the facts in this matter.
Watercraft Officer Rick Price Removal Arbitration-Joint Stipulations
1) This Grievance is properly before the arbitrator.
2) The Grievant commenced employment with the Ohio Department of Natural Resources (ODNR) as a Natural Resources Specialist on April 25, 2002.
3) The Grievant commenced employment with the ODNR-Division of Parks & Recreation on June 30, 2002, as an Intermittent Park Officer.
4) The Grievant's appointment type changed from an Intermittent to Part-time Permanent on April 6, 2003.
5) The Grievant laterally transferred from a Part-time Permanent Park Officer to an Established Term Irregular (ETI) Watercraft Officer with the ODNR-Division of Watercraft on March 6, 2005.
6) The ODNR-Division of Watercraft removed the Grievant on May 2, 2005.
7) Grievant received unemployment compensation for weeks enduing March 12, 2005; March 19, 2005; & March 26, 2005.
8) The Grievant worked for the ODNR-Division of Watercraft and earned wages for the following weeks:
a) $656.00 for week ending March 12, 2005;
b) $606.80 for week ending March 19, 2005; &
c) $606.80 for week ending March 26, 2005.
At the hearing the parties were able to further stipulate to:
“The ODNR removed the Grievant on May 2,
2005 for violating the Willfully Falsifying any Official Document; Dishonesty,
& Violation of the Uniformed Officer’s Code of Conduct provisions of the
ODNR Disciplinary Policy. The
Grievant commended employment with the ODNR in April 2002, and did not possess
any active disciplines at the time of Removal.
The ODNR-Division of Watercraft is
responsible for boating safety, education, and law enforcement on all waters
of the state. The Division also
administers and enforces all laws regarding identification, numbering,
titling, use and operation of recreational boats on Ohio’s waters.
A total of 166 permanent employees provide service in the form of law
enforcement patrols, emergency first response, registration and titling
services, educational programs and grants, professional training, boating
access facility grants, vessel inspections, aids to navigation, and technical
Watercraft Officers are responsible for law enforcement activities regarding
recreation boating of the public, marina and livery owners which includes
performing field sobriety tests, responding to boating accidents, making
arrests, conduction rescues and protection, transportation & emergency
response to state and federal officials.
Watercraft Officers also assist in providing training enforcement to
Division and other Departmental employees along with teaching boating classes,
enforcement and/or search and rescue techniques to the general public and
other interested groups.”
working as a Part-time Permanent (PTP) Park Officer for the ODNR-Division of
Parks and Recreation, the Grievant received unemployment compensation from the
ODJFS when his work hours and subsequent wages are reduced annually each
season. Assigned to Middle Bass Island State Park in Ottawa County,
the “busy season” typically runs from May to October and the Grievant
usually works a full-time schedule. The
Grievant’s hours are then reduced at the end of the “busy season.”
Pursuant to the ODJFS publication “Workers’ Guide to Unemployment
Compensation,” PTP employees may receive unemployment compensation if their
gross earnings are less than the weekly benefit amount.
The weekly benefit amount for the Grievant is $392.00.
From December 2004, until the lateral transfer to the Division of
Watercraft on March 6, 2005, the Grievant received unemployment compensation
until commending employment with the Division of Watercraft.”
in 2002 Rick Price was employed by the Ohio Department of Natural Resources in
the Parks and Recreation Division at the State Park on Middle Bass Island.
This work was primarily during the tourist season.
In the winter Mr. Price would not get full time work, and thus would
file for, and receive unemployment compensation benefits.
In the spring of 2005 he was
awarded a lateral transfer to the Watercraft Division.
He began work and continued to receive his unemployment’
employer became aware of this situation, investigated, and terminated his
employment for falsifying an official document and the dishonesty provisions of their
grievant filed a grievance in which he asserts “I
was terminated on 5/3/05 without just cause and without regard to progressive
disciplinary action. His
requested remedy is ”Reinstatement and
to be made whole for all time lost.”
The FOP and the Employer agreed to “skip
step 2 of the grievance process for Grievant Rick Price, #25-17 (05-09-05)
01-o5-02, and proceed directly to arbitration.” 
Mr. Price received over $600 per week for the
weeks ending March 12, 19 & 26. He
was paid for his participation in the orientation program of the Division of
During this time he continued to submit weekly claim paperwork to the
ODJFA stating that he did now work during these weeks.
In April of 2005 the Grievant received a
document from ODJFA titled a “Notice of Potential Issue.”
The Grievant admitted he “earned wages” but reported “0” as
“wages reported.” The employer argues that by falsifying documentation to the
ODJFS along with these admissions, he falsified an official document.
The ODNR assigned Deputy Chief Michael Quinn
to investigate the matter. When he interviewed the Grievant, he provided different
answers than those he supplied to the OSJFS.
ODNR argues that the Grievant also told his area supervisor, Dean
Palmer, that he believed he could just repay any overpayment back to ODJFS.
The employer also argues that Commissioned
Law Enforcement Watercraft Officers are governed by the Division’s Uniformed
Officer’s Code of Conduct. Thus,
dishonesty is a very serious offense for any employee, but more so for a
Finally, the employer calls to the attention
of the arbitrator, a unique section of the Collective Bargaining Agreement
between the parties; Article 20.09 states: In
cases involving termination for dishonesty or making false statements, if the
arbitrator finds dishonesty occurred or false statements were made, the
arbitrator shall not have authority to modify the disciplinary action.
The FOP first notes that section 20.09 of the
Collective Bargaining Agreement comes into consideration only if the
arbitrator finds the statements were false
The FOP acknowledges that Mr. Price made
errors in this matter but they were inadvertent and perhaps even negligent,
but not false or dishonest.
Mr. Cox, in this opening statement notes that
“this case turns on whether Mr. Price knew
(emphasis added) that he was not doing this correctly.
The FOP argues that the Grievant clearly did
not intend to steal from the Unemployment Compensation fund.
The FOP contends that, if the Grievant did
not make false of dishonest statements, then section 20.09 does not apply and
the arbitrator has the ability to fashion a punishment lesser than
The FOP argues that Mr. Price was naive and
made a mistake but that should not result in termination.
This case turns on the definition and
application of two terms: “dishonesty”
and “falsification.” Webster’s Dictionary defines “dishonesty” as “want
of honesty, probity, or integrity in principle; want of fairness and
straightforwardness; a disposition to defraud, deceive, or betray.
Encarta Online Dictionary defines
“falsification” as “deceitful behavior; the use of deceit, or the tendency to be
Merriam Webster Dictionary defines
“falsification” as “to represent
falsely or to misrepresent.”
agree with Mr. Cox in this opening statement, when he notes to prove either of
these requires the proof that they were a conscious act.
James Reddeker in the book Employee
Discipline, (Washington D.C., Bureau of National Affairs, Inc., 1989, page
215) states: “An employee may be
charged or otherwise disciplined for dishonesty or falsification of company
records where the employer can sustain the burden of proving that the employee
acted with knowledge of the wrongfulness of the act and with the intent to
defraud the company. “
Steven J. Goldsmith and Louis Shuman concluded in an article in
Employment and Labor Arbitration, (editors Tim Bornstein and Anne
Gosline, New York, NY page 22): “It
is necessary to distinguish between an employee’s mistake or poor job
performance and a dishonest act. Unless
the employee admits that he intended to deceive, the decision as to whether
the employee was dishonest must rest on an evaluation of the objective
and Shuman go on to offer three very helpful tests to examine the objective
Did the employee profit by receiving money or other valuable
consideration by avoiding work effort, criticism or discipline?
Were the discrepancies in the records inherently impossible or
improbable so that a mistake was unlikely?
Was the employee properly trained or warned concerning the type of
discrepancy that occurred?
can be no question the Grievant received money or other valuable
consideration. The DAS printouts (Employer Exhibit G) prove he received
Unemployment Benefits while he was working for the Watercraft division.
The Grievant admits he received these benefits.
answer to question Number 2 is that it is highly improbable that the employee
would not know it was wrong to claim unemployment benefits for the time he was
in the Watercraft orientation program and did not realize he was
dishonest and falsifying a document when he submitted his weekly Claims
wording on the Claim Application Forms (Employer exhibits H, I, J) submitted by the
Grievant are abundantly clear. Question
7 states: Did
you work (full-time or part-time), or were you self-employed during the week
claimed? (If you worked, you should answer YES even if you will be paid in
statement attributed to the Grievant by his immediate supervisor, in which he
allegedly stated that he though he could just pay the money back, is also an
indication that he knew what he submitted was dishonest.
Grievant argues that his offer and willingness to pay the money back is an
indication that he did not intend to be dishonest or defraud.
I find this explanation to be self serving in that he only made the
offer after he was aware that he was being investigated and in peril for his
3 raises the issue of whether the Grievant was properly trained or warned.
The certification on the Claim
Application again gives us the answer.
“CERTIFICATION: I understand
the answers I give to the above questions may affect my rights to benefit
payments. I certify that these
statements are true and correct, and I am not claiming any benefits from any
other unemployment program for the above weeks. I understand the law provides penalties for false
reasonable person would understand this warning.
This Grievant lacks the argument that he is a novice at the
unemployment compensation requirements of the state in that he has regularly
participated in the program in his prior ODNR employment.
turn to a consideration of Article 20.09 of the Collective Bargaining
Agreement which removes any discretion from the arbitrator regarding the
imposition of the appropriate penalty if certain conditions are met.
such requirements are included, and in general, in the consideration of
dishonesty and falsification cases, many arbitrators, including this one,
require a higher standard of proof than a simple “preponderance of the
Michael E. Cavanaugh, (in Waste
Management Inc., vs. Teamsters Driver, Sales and Warehouse Local 117, 120 LA
175, June 7, 2004) suggests a “clear and convincing standard of
Aaron Wolff, (In United Postal Service vs. International Brotherhood of Teamsters,
Local 705, 121 LA 207 2/28/05) states:
“Employer must prove by clear
and convincing evidence that it had just cause to discharge employee for
dishonesty, since dishonest conduct, if proven, would lark employee’s
discharge for conduct that was opprobrious or shameful, and make it difficult
for employee to find other employment.”
employer has argued that a higher standard of conduct is embodied in the Uniformed
Officers Code of Conduct and should be applied in this case.
I generally agree that uniformed officers are held to a higher standard, I see
no reasons to reach to that particular document or requirement in this case.
listening to the witnesses, examining the documents submitted, and hearing the
arguments and the explanation offered by the Grievant. And after applying a clear
and convincing standard of proof, I must conclude that the employer proved
the Grievant was dishonest and did falsify his Unemployment Compensation Claim
upon the requirements of Article 20.09 of the Collective Bargaining Agreement,
I must uphold the removal of Mr. Price from employment with ODNR.
cause does exist.
For the reasons herein stated, the grievance is denied.
London, Ohio this 9th day of December, 2005.
A copy of this decision was delivered by
electronic mail to:
Alicyn Carrel, Office of Collective Bargaining Alicyn.firstname.lastname@example.org.
And Paul Cox, Fraternal Order of Police, Ohio Labor Council, Inc. email@example.com.
This 9th day of December, 2005 with an
original copy of the signature page, by regular US Mail.
 Memorandum of Understanding executed June 30, 2005 by Joel Barden of the FOP/OLC and Brian Eastman, for the ODNR.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028