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an issue of nepotism was raised because the
grievant’s wife was Superintendent of the
Agency. The Arbitrator found that the evidence
in the record did not prove that the spouse’s
presence as Superintendent somehow caused the
Agency’s penalty decision to be unreasonable,
arbitrary, and capricious or an abuse of
discretion. The Arbitrator determined that
management established that the grievant
committed the violation and that some measure
of discipline was warranted. The aggravating
factors in this case were: 1) the grievant brought
a deadly weapon onto state property. This was a
4 th level, and very serious violation; 2) the
grievant knew or should have known that the
weapon was in his travel bag; 3) The grievant
was the Agency’s only Training Officer and
should have exercised due care to comply with
all of the Agency’s rules and policies. The
mitigating factors included the grievant’s fifteen
years of satisfactory and sometimes exemplary
state service. The grievant also had no active
disciplines on his record. The grievant was
reinstated under a two-year Last Chance
Agreement in which he agreed not to convey any
kind of weapon, firearm, ammunition or
dangerous ordnance onto any state property.
Violation of the agreement would result in
termination. He received no back pay and his
seniority remained unaffected by the arbitrator’s
decision. 909
The grievant was discovered eating food that he
had not purchased, in a supermarket. When he
was approached by security and told he would
have to pay for the food, the grievant refused to
do so, using obscene language to emphasize his
point. He threatened the store’s security officer
stating that he would take the officer’s weapon.
He also attempted to use his State ID to
intimidate the security officer, store manager and
police officers who were summoned. The
arbitrator found that the grievant violated the
employer’s Standards of Employee Conduct and
failed to display exemplary behavior in the store.
The obscene language used was undignified and
humiliating to the store employees, law
enforcement and to the general public. The
aggravating factors in this grievance were the
obscene language and his
threatening/intimidating behavior. The grievant
also deliberately involved his employer and its
reputation when he presented his State ID in
hope of receiving favoritism during the incident.
Mitigating factors were the grievant’s twenty
years of state service. The arbitrator found that
the aggravating factors outweigh mitigating
factors in this instance, and the removal was for
just cause. 910
The grievant allegedly made threatening
statements to his supervisor and co-workers. He
did not refute the testimony of the witnesses
regarding his actions or statements. The grievant
argued that a medical condition (diabetes) was
the primary cause for his outbursts. However, he
never indicated to anyone that he was sick. The
employer stated that the grievant’s act of praying
for harm to come to others was a deliberate act
and not the conduct of an ill man. The Union
argued that progressive discipline was not used;
however, the arbitrator cited an arbitration
decision which stated, “The principles of
progressive discipline allow for leeway. In
following them, an employer is not obligated to
issue a verbal reprimand for a first offense of
murder, mayhem, or sabotage.” (Walker v.
OBES, #G87-998, Dworkin, 4-21-99, p. 21,
Decision #123) While the grievant did not
physically harm supervisors or co-workers, his
threats certainly should have been and were
taken very seriously. To that end, DR&C did not
act arbitrarily or capriciously in determining that
removal was appropriate based upon the conduct
of the Grievant. 911
The grievant was charged with sexual
misconduct with inmates and lying during the
investigation of the charge. The arbitrator found
that the employer substantiated the charges and
the removal should stand. The arbitrator cited
the grievant’s “gross abuse of his position as a
Correction Officer and the sexual nature of his
exploitative conduct” as “nothing short of
unprincipled, heinous, and wholly intolerable”.
913
The grievant was charged with failure to make a
physical head count of inmates at the facility
after three previous counts had resulted in
different figures. Following that incident, the
grievant found two metal shanks, which he
documented and secured. Prior to finding the
shanks, the grievant found 16 pieces of metal
hidden in a ceiling. He disposed of them in a
secured receptacle which was not accessible to
inmates. He did not report finding the metal.
The Union argued that a procedural flaw
occurred in this matter in that a second predisciplinary
hearing was held and a second
charge was leveled against the grievant, leading
to his removal. The arbitrator found no