Department of Natural Resources
OPINION AND AWARD
In the Matter of Arbitration
Order of Police, Ohio Labor Council, Inc.
Ohio Department of Natural Resources
Number 25-12 (12-21-05) 21-05-02
of Hearing: September 18, 2006
An arbitration hearing was conducted on September 18, 2006, at the
offices of the Fraternal Order of Police, Columbus, Ohio.
The parties stipulated the issue in this case
to be: “Is the Grievant,
Wildlife Officer Dan Shroyer, disciplined for just cause?
If not, what shall the remedy be?”
material facts in this matter are not in dispute.
On Friday, September 16 and Saturday, September 17, 2005, Wildlife
Officer Dan Shroyer conducted basic firearms training for the National Wild
Turkey Federation Program titled, “Women in the Outdoors.”
program took place at Camp Muskingum in Carroll County, Ohio. As a part of this training, Wildlife Officer Shroyer signed
out eleven (11) 22 caliber handguns to use as training tools.
the end of the training on Saturday, Officer Shroyer, with the assistance of
Officer Mark Battles, placed the training firearms in Mr. Shroyer's state
vehicle. Officer Shroyer drove his
state vehicle to the cafeteria and shared dinner with the participants.
He locked his vehicle during this time.
Officer Shroyer arrived home he secured the training firearms. 
On Sunday, Officer Shroyer returned the training firearms to his state
vehicle and discovered that he only had ten (10) weapons instead of the eleven
(11) he had originally signed out.
reported the missing firearm to his supervisor and commenced a search.
After the weapon could not be found at the camp site, or in Officer
Battles’s vehicle, the District Manager advised Officer Shroyer to file a
missing gun report with the Carroll County Sheriff’s Office, which he did.
POSITION OF THE EMPLOYER:
Both parties agree that Officer Shroyer is a
good officer and employee. The
Employer concludes that Officer Shroyer was responsible for the guns for the
weekend and therefore he must receive some discipline.
He was charged with a violation of ODNR
Disciplinary Policy, “Loss of Firearm through Negligence.”
The Employer notes that its disciplinary policy calls for a suspension
or removal on the first offense. Because
of the lack of previous discipline and the good work record of the grievant, the
decision was made to issue a five (5) day working suspension so that the
Grievant did not experience any loss of pay.
The Employer argues that this is a very serious
offense in that someone could find the gun and commit a crime with it or cause
injury to themselves or others.
The Employer argues the offense is made more
serious by the fact the gun has still not been recovered.
The Employer has consistently imposed
discipline for similar cases and believes it must do so in this case as well.
To support this claim, the Employer provided
documentation of two previous cases:
The first case involved a Watercraft Area
Supervisor who left her second weapon unsecured in the ladies’ restroom of the
office after qualifying with that weapon. The
supervisor did not report the loss for six (6) days.
The weapon was found by another employee and turned in.
The supervisor was given a three (3) day working suspension.
In the second case an Assistant Park Manager
left a loaded shotgun unsecured and sitting against the gun locker in the state
park office. The shotgun was found
by another employee. The Assistant
Park Manager was given a one (1) day working suspension.
At the hearing the Employer requested that the
case be heard through a form of expedited or non-traditional arbitration and
that the Arbitrator issue a bench decision at the end of the day.
The FOP indicated that it could accept such a
process, but it viewed it as a “quasi” expedited or non-traditional
arbitration and not specifically covered by either of the two relevant
provisions of the collective bargaining agreement.
Both parties agreed that the Arbitrator would
make the decision about the issuance of a bench ruling after hearing the
POSITION OF THE FRATERNAL ORDER OF POLICE:
The FOP argued that the five (5) day working suspension can not be
supported for five reasons:
The discipline imposed was not progressive in nature as the contract
If Management determines to impose a greater level of discipline than
that envisioned by progressive discipline, then the burden for justifying the
higher level of discipline falls upon Management, and it failed to provide such
justification in this case.
In a disciplinary matter the burden of proof falls upon Management to
prove the charge and Management has failed to do so because in un-refuted
testimony, it was noted that both Supervisor Pete Novotny and Officer Mark
Battles also handled the guns. There
is no evidence that Officer Shroyer was the negligent person.
Officer Shroyer immediately followed all required reporting protocols by
informing his supervisor and the Carroll County Sheriff.
The FOP differentiates the two other cases, provided by the Employer to
demonstrate consistent treatment of other employees for similar offenses, on
Each of these two cases involved a supervisor outside the bargaining
Neither loss was self discovered. Another
employee found each of the missing weapons.
Neither loss was self reported.
conclusion, the FOP argues just cause does not exist to support the charge against Officer
The Arbitrator declined to issue a bench
decision. The reasons for doing so
Expedited or non traditional arbitrations are envisioned by the
collective bargaining agreement between the parties in two places.
The first is Article 20.10 Minor Suspension Procedure.
The Second is Article 20.14 Alternative Dispute Resolution.
While the parties certainly tried to accommodate each other in
this proceeding, the elements of either section were not fully met to the
satisfaction of this Arbitrator.
The Arbitrator wished to have time to read and consider the joint
exhibits presented and ponder the arguments of the parties.
based upon the limited number of witnesses called (one for each side) and the
number of stipulations entered into by the parties, the Arbitrator agreed to
expedite the issuance of the award and to limit its scope to a brief review and
discussion of the issues.
is no question that the Employer attempted to perform due diligence by taking
action when a firearm was lost, but it appears to this Arbitrator there was a
bit of an overreaction to the offense.
Grievant did not lose his duty weapon. He
(or someone) misplaced a training tool.
Employer is to be commended for its efforts to make sure the grievant did not
lose money as a result of this unfortunate incident but a five (5) day
suspension, even if it is a “paper suspension,” is still a serious mark on
the unblemished record of a good officer.
point of the FOP is well taken in that if the Employer wishes to justify
discipline beyond the beginning level of progressive discipline, the burden
falls to the Employer to justify that increased level of discipline.
of the justifications for giving this officer such a significant suspension was
because the weapon has not been found. Once
the gun is out of the control of the officer, he or she loses the ability to
remedy the situation. The gun is
lost and the act of the loss can be judged, but the length of the loss cannot be
a factor to justify increased discipline.
also fail to see why this offense would rate a greater level of discipline than
that given to a supervisor for leaving her service weapon, or an assistant
director for leaving a loaded shotgun
remains the problem that there is no evidence to prove it was Officer Shroyer
who lost the weapon. In un-refuted
testimony, it was established that both Supervisor Novotny and Officer Battles
handled the firearms and either of them could arguably have been the person
responsible for the loss.
one thing that differentiates the grievant from these two employees is the fact
that he signed out the firearms and therefore had a somewhat greater
responsibility for their handling than did the other two employees.
the opinion of this Arbitrator the Employer would have been well served to
follow the advice of District 3 Manager, Jeff Herrick, when he stated in his
investigatory report, “I would suggest we treat this as a loss of state
equipment rather than the loss of his state issued sidearm or shotgun when
considering the level of discipline.” 
more appropriate charge would have been “misuse of and/or carelessness with
state property.” 
The level of discipline recommended ranges from an oral reprimand to
The grievance is granted in part and denied in
part. The five (5) day working
suspension shall be rescinded and all record removed from the employee’s
personnel file. In its place the
Grievant shall be issued a written reprimand for the incidents occurring on
September 16 & 17 2005. The
date of issuance of the reprimand
shall be noted as December 1, 2005.
Issued at London, Ohio this 25th day
of September, 2006.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028