State of Ohio and Fraternal
Order of Police
OPINION AND AWARD
In the Matter of Arbitration
Order of Police, Ohio Labor Council, Inc.
State of Ohio, Department of MRDD
An arbitration hearing was conducted on February 12, 2007, at the
Gallipolis Developmental Center, Gallipolis, Ohio
The parties stipulated the issue in this case
to be, “Was the Grievant, Dennis Salisbury, removed from his position as
a Police Officer 2 for just cause? If
not, what shall the remedy be?”
In a grievance dated July 14, 2006, 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 agreed that the matter was properly before the Arbitrator for
determination and submitted numerous documents as joint exhibits including the
Collective Bargaining Agreement, the Grievance Trail, the Discipline Trail, and
various In-service/Policies and Procedures.
to the hearing the parties had agreed to several procedural matters including
the fact the hearing would be held in Gallipolis, Ohio.
agreements were reduced to writing and provided to the Arbitrator.
Grievant Dennis Salisbury was removed from his
position as a Police Officer 2 on July 12, 2006, after serving in that position
for approximately two (2) years.
The Order of Removal states the basis for the
“This is to notify you that you are REMOVED
from the position of Police Officer. The reason for this action is that you have
been guilty of CREATING A DISTURBANCE in the following particulars, to wit: From
the period of April 2005 through the period of April 2006, your interaction with
female co-workers has caused a disruption in the work environment.
On various occasions you have made the focus of your conversations
offensive i.e. sexual in nature. You
have also demonstrated actions that go beyond inappropriate, i.e. placing your
fingers in the hole of a person’s pants, inviting an employee to meet you at
the Habitation Center after work, going by an employee’s home in addition to
giving unwelcome advice to that employee in regards to her husband, and
urinating in an open bathroom stall in the presence of a female custodial
worker. All of these behaviors
demonstrate a pattern of inappropriate activity.
As a Police Officer 2 you are held to a higher standard because you are
in a position of perceived authority your actions cannot be tolerated. Therefore you are removed.”
contends that the actions of grievant Dennis Salisbury between April 2005 and
February 2006 “failed to maintain a satisfactory and harmonious relationship
with fellow employees and seriously disturbed the normal operation of the
Management based much of its case on the
testimony of Margaret Mossbarger who is an Administrative Assistant 2 in the
Gallipolis Development Center Police Department.
Ms. Mossbarger is the number two person in the
According to Ms. Mossbarger, Mollie McFann caused an investigation to be
initiated when she reported an incident on January 25, 2006, in which the
grievant was alleged to have told her the staff in one her units had, “opened
Pandora’s Box.” Ms. McFann
apparently said she could not take it anymore.
The grievant was re-assigned and an
investigation was begun.
Another employee reported that the grievant had touched the underwear of
another female employee.
Another employee, Dezra Lies, allegedly
reported that she had a conversation with the grievant who told her that because
they had been talking there would likely be rumor that they had been sleeping
This employee stated that the grievant had
driven by her house in Jackson and told her that her garage door was open.
This employee allegedly called the police and
reported the fact the grievant had driven by her house.
According to Ms. Mossbarger, employee Lies was afraid to come to work.
After Ms. Mossbarger and Ms. Lies talked, the employee did report to
Ms. Mossbarger then interviewed employee
Crystal Waugh and asked her about the reported incident of touching her
underwear. She apparently replied
that he did not touch her underwear but did touch a hole in her jeans.
Ms. Waugh stated that she was not offended by
Ms. Mossbarger interviewed Brenda Spencer who
reported that the grievant had invited her to follow him to see the Habitation
Center (a facility on another part of the grounds of GDC).
She said she declined.
In an interview with Rebecca Stevens, this
employee allegedly reported that the grievant had made an inappropriate
statement about getting, “into her stuff.”
Emma Johnson is a custodian who reports to Ms.
Mossbarger. The two of them
discussed a situation wherein the grievant had referred to her as “girl.”
Ms. Mossbarger informed the grievant that he should address the employee
as either Emma or Ms. Johnson.
During a follow-up conversation regarding the
“girl” incident, Ms. Johnson reported another incident wherein she was
cleaning a bathroom when the grievant came in.
She apparently stated that the grievant urinated while she was still in
At the hearing, the Employer called Emma
Johnson and asked permission to view the premises of the bathroom.
The hearing was recessed and reconvened at the 6040 Cottage location.
Ms. Johnson testified that the grievant’s
references to her as “girl” hurt her feelings.
In viewing the restroom area Ms. Johnson
indicated that she was offended by the grievant’s action in the bathroom.
She noted that she did not realize he was still
in the restroom until she saw him in the mirror.
Superintendent Donald Walker testified to the
reasons for removing the grievant from employment.
He indicated that the single incident in the restroom would justify
termination in his opinion.
Management argues that the grievant was not
removed for sexual harassment but rather because he created a disturbance over a
long period of time leading to a disruption of the workplace.
It was further argued that if the grievant were to return to GDC it would
create a very difficult work environment.
The FOP notes that the grievant was originally charged with some thirteen (13) different incidents as noted in Joint Exhibit C.
Following the pre-disciplinary hearing the hearing officer recommended throwing out two of the three original charges.
The remaining charge is the disruption of the workplace.
The FOP continued to review each interviewee and the incidents they allegedly reported to Mossbarger.
Molly McFann apparently reported three separate incidents:
(a) Pandora’s Box.
(b) Computer porn statement
(c) Conversation at a basketball game about sex and an inmate.
The FOP objected to the reliance of the Employer on the Disciplinary Grid (Exhibit E). 
In the opinion of the FOP this is a silly case. The Employer has failed to prove the incidents occurred and failed to prove the existence of sexual harassment.
To bolster the FOP’s position, it cites two Supreme Court cases which state the tests necessary to determine if sexual harassment has occurred. 
The FOP contends that none of the incidents cited by Management, even if they were proven to have happened, meet the tests that constitute sexual harassment.
In order to sustain its action of removal of the grievant, the Employer must first prove that one or more of the incidents occurred. If the Employer is able to meet this test, then the Arbitrator must determine if removal is warranted and consistent with the principles of just cause.
An examination of this question necessitates that we first discuss the quantum of proof required in such a case.
Many Arbitrators apply the standard of “clear and convincing evidence” in most termination and removal cases. Arbitrator William P. Daniel clearly articulated this view when he wrote:
level of proof in discharge is “clear and convincing evidence”, rather than
preponderance of evidence or criminal-law standard of beyond reasonable doubt,
where collective-bargaining contract, in providing for just cause, did not
provide intent to adopt criminal standard of proof, and level of proof should be
greater than in ordinary contract dispute for person who is terminated and who
has suffered capital punishment in employment terms.” 
Clear and convincing evidence is defined as, “Evidence indicating that the thing to be proved is highly probable or reasonably certain. This is a greater burden than preponderance of the evidence.” 
Having recognized that the standard of proof is greater in a removal case than the “preponderance” standard utilized in lesser cases, let us turn to the type of evidence necessary to meet this standard.
In this case much of the evidence presented to me was hearsay. Ms. Mossbarger testified about what people had told her in the interviews and the Employer submitted statements and reports purportedly collected from witnesses.
While hearsay evidence is often received in arbitration proceedings to bolster certain points and to fill in the gaps between other pieces of evidence, it has significant limitations.
Arbitrator Ann S. Kenis discusses these limitations when she writes:
“The general rule in
arbitration is that hearsay may be admitted in some circumstances even though
the rule of evidence in a court of law would exclude it. This is because it is
recognized that arbitration proceedings are informal, and advocates are not
always familiar with the legal technicalities expected of lawyers in a
courtroom. Arbitrators are presumed to have the expertise and experience to sift
through and evaluate the evidence and assign it the proper probative value. In
addition, policy reasons favor the admission of hearsay. The process is supposed
to be an “escape valve“ for tensions in the workplace and it is believed
that there is value in permitting both parties to “get things off their
chest“ even though the evidence presented might otherwise be deemed
inadmissible in a formal courtroom setting.
Nevertheless, one must always
bear in mind the inherent weaknesses in hearsay evidence, particularly in the
context of a discipline case where the employer has the burden of proving just
written statement cannot be relied upon to establish the entire truth of the
matter, and in a hearing cannot be given the same weight as oral testimony in
the course of which the Arbitrator may observe the witness and which is subject
to cross examination during which any uncertainties are subject to further
inquiry. “ 
the exception of Emma Johnson, all testimony offered to the Arbitrator was
hearsay in nature. The testimony of
Ms. Mossbarger went far beyond the content of the written statements and
involved memories and conclusions not included in the written statements and
The fact that the hearing was held on site in
Gallipolis, Ohio should have afforded the Employer greater convenience is
calling eye witnesses so the Arbitrator could assess their testimony and the FOP
would have the opportunity to cross-examine.
The standard of clear and convincing evidence
demands no less.
The ABC Rail Products case cited above records
a similar situation faced by Arbitrator Kenis.
the core of the Employer's case hinges on the hearsay account of the outside
janitorial employee who, for whatever reason, did not appear at the hearing to
face the Grievant and test his account against cross-examination. The Employer
offered no explanation at the arbitration for the absence of this witness and no
attempt was made to subpoena him. Without this individual's testimony, we do not
know, for example, whether there was motive to falsely accuse the Grievant or
whether, as Union witnesses claimed at hearing, he has demonstrated himself to
be an unreliable and untrustworthy individual. His un-sworn statement cannot be
relied upon under these circumstances since, as it developed, the matters
contained in his statement were too important to deprive the Union of its right
to cross-examination.” 
upon the record in this case, I cannot accept the written statements or reports
as probative evidence to support termination or proof that the alleged incidents
occurred. The absence of Molly
McFann, Dezra Lies, and Crystal Waugh precludes the Arbitrator from making
determinations regarding their credibility.
This Arbitrator received no requests for
subpoenas for any of those persons.
It appears that tape recordings were made of
several of the interviews. Even the
submission of those tapes would have bolstered the Employer’s interpretation
of these incidents if the witnesses had not been able to appear.
The authoritative text on Arbitration HOW
ARBITRATION WORKS, states:
“In discharge and discipline cases witness testimony concerning the facts that led to the disciplinary action comprises the most important evidence…
An employers decision to rely solely on hearsay evidence in a case where it had the burden of proof has been deemed insufficient to sustain its case.” 
Without the presence of all or some of the
persons who allegedly have suffered harm, I am in a position of hearing the
un-refuted testimony of the grievant.
As an Arbitrator I was not particularly
persuaded by the grievant’s testimony. He
has obviously had much practice in offering testimony and much of what he said
struck this listener as self serving and rehearsed.
But, without hearing another first hand version of the event or incident,
I must accept the grievant's version as plausible.
We are left with the incident(s) involving Ms.
Emma Johnson. I found her testimony
to be honest and credible. The
Superintendent believes that the single incident of urinating in the restroom
while Ms. Johnson was present provides justification and support for removal
Let us turn to an examination of what happened.
I am very troubled by the incident in which the grievant referred to Ms.
Johnson as “girl” and, according to Ms. Johnson’s testimony, did not
correct that behavior after he was counseled to do so.
The FOP argues that this is not part of the charge in that it is not
sexual in nature.
The charge, albeit a strange one, is “creating a disruption in the
workplace.” Acts that are demeaning or unprofessional are certainly
disruptive to the respect and order necessary in any workplace.
The bathroom incident is also troublesome.
The grievant entered the restroom and saw Ms. Johnson working.
A prudent person would have turned immediately and left the area until
the cleaning was done.
The area could also have had the door blocked
by a sign indicating cleaning in progress or wet floor or some other commonly
The grievant did not leave but proceeded to
relieve himself. His testimony is
that he thought Ms. Johnson had left the room.
This Arbitrator accepts this statement as
plausible solely based upon Ms. Johnson’s testimony when she said, “I
thought he had left.”
The physical layout of the restroom with the small, fully enclosed stalls
makes the statements of both persons believable.
Even if I were to find the restroom incident to
be intentional, I fail see that it rises to a level that supports termination.
The record shows the grievant did not expose himself, did not engage in
questionable conversation, or other acts that would lead to removal.
I find that the Employer did prove the use of
the term “girl” and that the grievant did fail to exercise good judgment by
remaining in the restroom while a female employee was cleaning it.
Thus, just cause does exist to support some level of discipline.
The FOP objected to the reliance of the
Superintendent on Exhibit E, titled Performance
Track, which is commonly
known as a disciplinary grid. The
objection is based upon the fact the FOP and Employer have never negotiated the
I agreed to review that objection as a part of
The question of whether the document is a
required subject of bargaining is one best decided by the Ohio State Employment
Relations Board (SERB) under the provisions of ORC 4117.
Its application and use are relevant questions
for me to decide. The FOP is
correct that such a document can never “trump” the clear language of the
Collective Bargaining Agreement regarding progressive discipline.
This CBA, like most, has clear language on
progressive discipline and it is for Arbitrators to decide if the actions of the
Employer are consistent with that language.
At the very least the Employer clearly has the
right to create tools that will aid in providing consistent penalties for
In an Elkhart County (Indiana) case this Arbitrator was confronted by an
internal Discipline Review Board that had the same goal. I concluded in that case:
“This Arbitrator commends the county on the
establishment of an internal process such as the “Discipline Board” in order
to provide an internal review mechanism which enables more supervisors to
examine, and possibly point out, other approaches to discipline.
I also reject the Union’s argument that they should have been informed
when this Board was created. It is
strictly an internal management structure to assist in making good decisions.”
The fact that the Employer has shared this
Policy with employees in an effort to explain expected consequences for rule
violations is laudable and, in my opinion, appropriate.
While it is informative to an Arbitrator to
know the thinking of the Employer and the efforts made to achieve internal
consistency and fairness, it does not relieve the Arbitrator of the task to
deciding the questions of just cause and progressive discipline that each case
presents. This determination by the
Arbitrator must be limited to the clear language of the Collective Bargaining
The Agreement in this case provides in 19.05:
Employer will follow the principles of progressive discipline. Disciplinary
action shall be commensurate with the offense.”
This language does not imply that each employee
must first receive a verbal warning for the first offense of any violation, but
it does put a burden on the Employer to demonstrate why greater levels of
discipline are necessary in a specific case.
The most glaring flaw in the Employer’s case
in this situation is the absence of an opportunity for the grievant to correct
what are believed to be egregious behaviors.
Except for the counseling regarding the use of the term “girl,” the
record contains no reference to any efforts to correct the grievant’s
In the award that follows the discipline is
greatly reduced. This lower level
of discipline allows the Employer the opportunity to clearly state to the
grievant exactly what behaviors are expected of him and to hold him accountable
to conform his behavior to those expectations.
In summary I find the Employer has failed to
prove to the satisfaction of this Arbitrator that just cause exists to support
the removal of Dennis Salisbury.
I do find just cause exists to support a lesser
penalty for his use of the term “girl” when referring to a female co-worker
and not correcting his behavior after being counseled to do so, and for failure
to exit a restroom that he had entered after he realized that the same female
worker was present and working in that restroom.
The grievance is granted in part and denied in
The removal of Dennis Salisbury shall be reduced/rescinded and he will be
returned to a position of Police Officer 2.
The reduced discipline shall be for a two (2) day fine and shall be dated
as of the date of this award. All
records of the grievant’s removal shall be removed from his personnel file and
be replaced the record of the two day fine which shall remain as active
discipline for the period allowed by the Collective Bargaining Agreement.
With the exception of the loss of salary for
the two (2) days, the grievant shall be made whole.
Issued at London, Ohio this 8th day of March, 2007.
 Employer’s Opening Statement.
 The Arbitrator noted the objection and agreed to rule on it in the written award.
 Meritor Savings Bank v Vinson (477 U.S. 57) and Harris v Fork Lift Systems (510 U.S. 17)
 111 LA 457 (1998)
 Blacks’ Law Dictionary, Seventh Edition
 110 LA 574, (at page 580) (ABC Rail Products)
 110 LA 574 (at page 581)
 HOW ARBITRATION WORKS, 6th Edition, Elkouri & Elkouri, editor-in chief, Alan Miles Ruben, The ABA and BNA, 2003.
 118 LA 1764