Ohio Office of Collective Bargaining v. Ohio Civil Serv. Emps. Ass'n

127 N.E.3d 482, 2018 Ohio 5366
CourtCourt of Appeals of Ohio, Tenth District, Franklin County
DecidedDecember 31, 2018
DocketNo. 18AP-478
StatusPublished
Cited by1 cases

This text of 127 N.E.3d 482 (Ohio Office of Collective Bargaining v. Ohio Civil Serv. Emps. Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Tenth District, Franklin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ohio Office of Collective Bargaining v. Ohio Civil Serv. Emps. Ass'n, 127 N.E.3d 482, 2018 Ohio 5366 (Ohio Super. Ct. 2018).

Opinions

SADLER, J.

{¶ 1} Defendant-appellant, Ohio Civil Service Employees Association, Local 11 ("OCSEA"), appeals from a judgment of the Franklin County Court of Common Pleas vacating an arbitration award in favor of plaintiffs-appellees, Office of Collective Bargaining ("OCB") and Ohio Department of Developmental Disabilities ("DODD"). For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} In 2013, the Youngstown Developmental Center, a facility operated by DODD, employed Danielle Lazaro as a therapeutic program worker. In her position, Lazaro provided direct care to the developmentally disabled clients at the facility. One such client had become known for "going through the refrigerator" and eating so quickly that she risked choking. (May 28, 2015 Arbitrator's Opinion & Award at 5.) On July 30, 2013, a hidden Ohio State Highway Patrol camera captured Lazaro either slapping the hand of this particular client or forcibly knocking something out of the client's hand in an aggressive manner. Lazaro also reportedly observed another worker kick the same client and then failed to report the incident to her supervisor.

{¶ 3} After viewing the video footage, DODD removed Lazaro from her state employment for two separate violations of DODD's Standards of Conduct: (1) abuse of a client; and (2) failure to report a co-worker's abuse of a client. Lazaro grieved her removal pursuant to the Collective Bargaining Agreement ("CBA") between DODD and OCSEA, culminating in arbitration.

{¶ 4} The arbitrator held an evidentiary hearing in the matter on March 20, 2015. As a result of the hearing, the arbitrator issued a decision on May 28, 2015, which she forwarded to the parties via email at 9:53 p.m. In the decision, the arbitrator noted that DODD's Standards of Conduct defines physical abuse as follows:

Any physical motion or action (e.g., hitting, slapping, punching, kicking, or pinching) by which potential or actual bodily harm or trauma may occur. The use of physical force that can be reasonably expected to result or potentially result in physical harm or serious harm, including psychological harm or trauma and sexual abuse. Such force includes, but is not limited to, hitting, slapping, pushing, or throwing objects at an individual with developmental disabilities.

(May 28, 2015 Arbitrator's Opinion & Award at 21-22.)

*485{¶ 5} The arbitrator reviewed the videotape and compared what she observed to the definition of "physical abuse" set forth in the Standards of Conduct and reached the following conclusion:

So the question for the Arbitrator is whether the Grievant's conduct falls within DODD's definition of abuse. Regrettably, it appears to the Arbitrator that some of the Grievant's conduct toward the client in the kitchen on July 30, 2013 falls within DODD's definition of abuse. Regrettably, because the Grievant appears to care about her work with clients, and as set out in her performance evaluations, generally does that work well.
In particular, the Arbitrator finds the video at 21:35:41-42 shows the Grievant slapping the client's hand. It is possible the Grievant was only knocking food items out of the client's hand, rather than directly slapping the client's hand. Even if that were the case, however, the video shows the Grievant doing so in a very aggressive manner. Such slapping or "knocking" comes within DODD's definition of physical abuse, as set out above.

(Emphasis added.) (May 28, 2015 Arbitrator's Opinion & Award at 23.)

{¶ 6} In reaching this conclusion, the arbitrator expressly rejected OCSEA's argument that the definition of "[a]buse" found in R.C. 2903.33(B) should be applied to the Lazaro case. R.C. 2903.33(B) defines abuse for purposes of the offenses of "[p]atient abuse" under R.C. 2903.34 and "[p]atient endangerment" under R.C. 2903.341 as "knowingly causing physical harm or recklessly causing serious physical harm to a person by physical contact with the person or by the inappropriate use of a physical or chemical restraint, medication, or isolation on the person." The arbitrator found that Lazaro had not violated DODD's Standards of Conduct by failing to report her co-worker's abuse of the client because the videotape did not conclusively show that she witnessed her co-worker's abuse of the client.

{¶ 7} Having determined that Lazaro had committed the violation for which DODD had removed her from her position, abuse of a client, the arbitrator considered whether the violation warranted Lazaro's removal:

From the video, it is apparent that the Grievant's co-worker engaged in serious, multiple acts of abuse toward the client-hitting, kicking, and grabbing, In contrast, the Grievant's only actual act of abuse was slapping the client's hand once, at the beginning of the kitchen incident when the Grievant first discovered the client had taken food from the refrigerator. After that slap, the Grievant conducted herself in a more measured manner, though she did not consistently use best practices.
Based on the entire record, as well as the Parties' contentions, the Arbitrator finds the Grievant's single slap merits a serious suspension, but not termination.

(May 28, 2015 Arbitrator's Opinion & Award at 26-27.)

{¶ 8} The arbitrator concluded that DODD did not have just cause, pursuant to the CBA mandated progressive discipline policy, to remove Lazaro from her employment for "a first offense of abuse." (May 28, 2015 Arbitrator's Opinion & Award at 27.) The arbitrator ordered DODD to reinstate Lazaro to her former position "with full back pay, seniority, and benefits, less 30 working days pay, seniority, and benefits." (May 28, 2015 Arbitrator's Opinion & Award at 27.) The arbitrator modified the discipline to "a 30-day suspension for a first offense of abuse." (May 28, 2015 Arbitrator's Opinion & Award at 27.)

*486{¶ 9} Following the release of the arbitrator's opinion and award on May 28, 2015, the arbitrator sent an email to the parties at 9:23 a.m. on May 29, 2015, informing them that she had corrected a "typo on page 13 and some dropped sentences on page 14." (May 29, 2015 Email.) The arbitrator attached a modified opinion and award to the email. The modifications did not affect any substantive changes to the opinion or the award.

{¶ 10} On May 30, 2015, the arbitrator issued yet another opinion and award in the case. On this occasion, the award remained the same but the findings and conclusions changed. In her third opinion and award, the arbitrator found that Lazaro's conduct in slapping the client's hand or knocking food out of the client's hand in a "very aggressive manner" did not constitute client abuse as that term is used in the CBA because Lazaro's conduct did not cause "potential or actual bodily harm or trauma" or "potential [ ]physical harm or serious harm." (May 30, 2015 Arbitrator's Opinion & Award at 23, 24.) The arbitrator concluded that Lazaro was guilty of violations of rules E-3 and E-5 of DODD's Standards of Conduct. There is no dispute that such violations occur when a client is neglected but not abused.

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127 N.E.3d 482, 2018 Ohio 5366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-office-of-collective-bargaining-v-ohio-civil-serv-emps-assn-ohctapp10frankl-2018.