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youth at his facility. The evidence presented
included a video recording of the incident. The
video did not have sound which precluded
hearing the level of the disturbance in the gym
where the incident took place. The tape did not
reveal provocations by the youth indicating that
the grievant’s actions were warranted. The
arbitrator noted a disparity in the discipline
decisions to remove the two officers involved,
but to issue no discipline upon a General
Activities Therapist whose actions included
dragging a youth to the floor by his shirt. The
arbitrator reversed the removal stating, “Based
particularly on the disparity regarding the levels
of discipline imposed, the significance of the
Grievant’s inappropriate response to the youth’s
activity in the gym incident, and the Grievant’s
previous work record with DYS, the arbitrator
finds that the Grievant’s summary discharge in
response to this one performance offense is
excessive, does not fit the ‘crime,’ and does not
fundamentally comport with either progressive
discipline or ‘just cause.’” 927
The Arbitrator found that the Employer
exercised sound discretion given the fact that the
Grievant had failed to respond in a meaningful
way to prior progressive corrective action steps
(particularly to a fifteen day suspension) in an
effort to improve her dependability. The
Grievant also failed to present any convincing
mitigating factors that would excuse her late call
in or her one hour and twenty-four minute
absence from work. The Arbitrator did not agree
that the Grievant was treated in a disparate
manner, that a misstated year on a letter had any
impact on the timing of the investigation, and
that there was bias when the investigator was a
witness to the Grievant’s calling in late. 928
An inmate committed suicide in his cell block.
The COs responsible for periodic range checks
neglected to make rounds. A proper check may
have saved the life of the inmate. A discrepancy
was discovered between the ledger and the video
recording. The grievant was charged with failing
to confirm the range checks and logging them
into the ledger properly. The arbitrator found
that the grievant was responsible for maintaining
the logs, not entering the data. The grievant
testified that he felt the officers could have done
something more, but management could show no
direct connection between the grievant and the
officers to indicate that he assisted in
misrepresenting their duties. The arbitrator
based his decision to reinstate the grievant
without back pay upon the grievant’s “failure to
adequately fulfill his supportive responsibility
with respect to the log sheet and his inconsistent
and evasive testimony about operating the DVR
in the cell booth”. Because he could not be held
accountable for a duty which was only a
supportive duty at best, the removal was too
harsh and without just cause. 929
The grievant was observed arriving late for work
on two separate dates and upon arrival did not
clock in. The grievant stated that he did not
clock in because he was on an LCA and did not
want to get into additional trouble. During his
pre-disciplinary meeting the grievant stated he
was forced to sign the agreement, his
representative misled him regarding the
agreement and its effects, and he had been
wrongly placed on an LCA because his
disciplinary record was incorrect. A ten-day
suspension had been reduced to a five-day
suspension through NTA. The arbitrator found
that the grievant and the Union should have
sought to correct the grievant’s record prior to
the LCA and based upon the untimely manner in
which the issue was raised there was no
appropriate reactive relief. The agency’s
conduct complied with the intent of the LCA and
no mitigating factors were presented to warrant
reversing the removal. 931
The grievance was upheld in part and denied in
part. The employer was directed to send the
Grievant to a psychologist or psychiatrist to
determine his fitness to return to work. If the
Grievant was determined to be fit to return to
work, he was to be promptly reinstated to his
former position on a last chance basis with no
loss of seniority. The Grievant was to be given
back pay and benefits from the date of the third
step grievance meeting until he was returned to
work. Any interim earnings were to be deducted
from his back pay. The Arbitrator rejected the
Employer’s contention that the grievance was
not arbitrable because it was untimely. It was
unclear when the Grievant was removed. A
notice of removal without an effective date has
no force or effect. When the Grievant did not
respond to the Employer he appeared to have
been acting in accord with his doctor’s
instructions. While the Grievant was informed
by payroll that he had been removed, the
collective bargaining agreement requires that the
notice be in writing and provided to both the
employee and the union. The allegation of
misconduct arose from three incidents involving