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At the time of the incident the grievant was on a
Last Chance Agreement (LCA), which included
6 random drug tests within the year following
entrance into the LCA. As a result of his
behavior during the argument, the grievant was
ordered to submit to a drug test. He refused and
management appropriately. Further misconduct
would surely result in removal. The arbitrator
found that the employer failed to establish
reasonable suspicion to order a drug test. The
grievant’s failure to obey the Warden’s direct
order gave just cause to impose discipline, but
flaws in procedure on the part of the employer
were noted by the arbitrator for his decision to
convert the removal to a suspension. The
arbitrator determined that “the overall state of the
evidence requires reinstatement, but no back pay
or any economic benefit to the grievant is
awarded.” 814
The grievant was on a Last Chance Agreement
(LCA) when she called off sick. She was
advised to present a physician’s verification.
The grievant continuously stated she would
obtain one, but failed to do so. She was charged
with insubordination and an attendance violation
and subsequently removed. The arbitrator found
that the grievant failed to present the verification
within a 3-day limit per the LCA and that the
note she eventually produced gave no evidence
of a legitimate use of sick leave. The arbitrator
noted that the grievant demonstrated through the
interview that she understood the consequence of
not producing verification and if she had a
problem with the directive she should have
applied the “obey now, grieve later” principle.
815
The employer’s case was firmly supported by the
statements and testimony of the grievant’s fellow
correction officers. The evidence established
that the grievant struck the inmate on multiple
occasions. The grievant even testified to striking
the inmate 30-40 seconds after the altercation.
This behavior placed the grievant, his coworkers,
and other inmates at considerable risk. The
security of the institution was compromised due
to the grievant’s behavior. The grievant’s
testimony concerning being spit on and the
finding of contraband in the inmate’s cell was
not credible. The fact that the employer did not
use a Use of Force Committee Report is
inconsequential because the grievant was found
for an abuse violation, not use of force. 819
was removed. The arbitrator noted that the
grievant’s discipline record demonstrated a
pattern of poor conduct over a short period of
time regarding his inability to follow orders or
interact
with
The arbitrator found that the grievant witnessed
an inmate on his watch being assaulted by
another corrections officer. The grievant
cooperated in a conspiracy with other officers to
cover up the incident. By doing so, the grievant
failed to follow appropriate post orders and
policies, falsified his report of the incident,
interfered with the assault investigation, and
failed to report of the work rule regarding the
appropriate and humane treatment of an inmate.
The arbitrator found that all of this conduct by
the grievant violated Work Rules 7, 22, 24, and
25. The arbitrator further found that the grievant
violated the work rule on responsiveness in that
the grievant failed to remain fully alert and
attentive at all times while on duty and to
properly respond to any incident. The arbitrator
concluded that all of these work rule violations,
when taken together, along with the aggravated
circumstances of the brutal assault of an inmate
on the grievants watch justify the termination of
the grievant. 820
The arbitrator found that while 15 of 16
employees the grievant conducted TB tests on
became ill, the employer did not meet its burden
in establishing that the grievant’s actions were
the proximate cause of the employees resulting
sickness. The employer did not prove that the
grievant injected the employees with a substance
other than TB/PPD serum or that the serum was
out of date or the incorrect dosage was used.
Furthermore, while evidence tends to show the
grievant injected the employees too deeply, it is
unknown what effect on the employees such an
error would have. The arbitrator also stated that
other medical professionals have made
medication injection errors that entailed injecting
inmates with the wrong solution in the past and
they were not terminated for such a mistake.
Ultimately, the grievant’s discipline-free record
and nine years of service as well as there being
no established TB testing protocol at the facility
prior to the incident convinced the arbitrator to
return the grievant to his position with
stipulations. 822
The arbitrator found that the Grievant had clearly
violated Rule 38 (“Any act or commission not
otherwise set forth herein, which constitutes a
threat to the security of the facility staff, any