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COs were aiding in investigations and failed to
put a stop to it.
The Arbitrator found that the Employer treated
the Grievant disparately in disciplining him for
his attempt to gain drug bust information since
his coworkers were not disciplined for failing to
report the conduct. He found their knowledge
made them complicit in the violation and found
that they only came forward after the disciplinary
process commenced. Therefore, the Arbitrator
found that DR&C failed to enforce its rule on an
equal basis. 940
Insubordination is a serious offense. The
Grievant’s misconduct took place in a
correctional facility where following orders is
particularly important. The very next day the
Grievant violated policies and procedures when
she left a youth unattended. The Grievant’s
disciplinary history was a major factor
supporting termination—she had received a 12-
day suspension on January 19, 2005. The
Arbitrator rejected the claims that the Grievant
was the victim of disparate treatment; that the
imposition of discipline was delayed; and that
the employer was “stacking” charges against the
Grievant in order to justify her termination. The
Union was unable to show how the delay
prejudiced the Grievant’s case or violated the
contract. The decision to combine two incidents
appeared to be reasonable. The disciplinary
record of another JCO involved in leaving the
youth unattended justified the different
treatment. The Arbitrator concluded that the
Grievant’s discharge was for just cause and was
in compliance with the collective bargaining
agreement. 942
The grievance was granted. The Grievant was
entitled to reinstatement with back pay. Back
pay did not include roll call, shift differential or
holiday pay. Institutional or other applicable
seniority rights were restored. The Arbitrator
held that the burden of proof needed in this case
to support the removal was absent. DYS
removed the Grievant for two distinct reasons:
use of excessive force with a youth and lying to
an investigator regarding an incident in the
laundry room. The evidence, even if viewed in
light most favorable to DYS, failed to establish
that the Grievant’s inability to recall the laundry
room matter was designed purposely to deceive.
Both parties agreed that nothing occurred in the
laundry room that would warrant discipline. The
record failed to support a violation of Rule 3.1
for deliberately withholding or giving false
information to an investigator, or for Rule 3.8-
interfering with the investigation. The Grievant’s
misstatement of fact was nothing more than an
oversight, caused by normal memory lapses—a
trait common to JCOs. He handles movement of
multiple juveniles each day, and the
investigatory interview occurred eight days after
the incident in question. No evidence existed to
infer that the Grievant exhibited dishonest
conduct in the past or had a propensity for
untruthfulness. The evidence did not support that
the Grievant violated Rules 4.14 and 5.1. The
use of force by the Grievant was in accord with
JCO policy aimed at preventing the youthful
offender from causing imminent harm to himself
or others. The grievance was granted. 943
The Grievant reported late for work and then
passed out on the floor. An emergency squad
was called and the Grievant was taken to the
nearest medical clinic. The Arbitrator held that
the Employer had legitimate grounds to order a
“reasonable suspicion” drug test based on the
circumstances, physical evidence, and the
physical signs, symptoms, and conduct of the
Grievant. The Arbitrator concluded that the
Grievant, being subject to testing under Sub-
Section B of Appendix M, Section 3, was not
afforded a contractual guarantee of Union
representation prior to testing and was not
arbitrarily or improperly disadvantaged by the
Employer’s failure to assure the presence of a
Union representative one hour before the test
was actually conducted. The Arbitrator found
that ODOT, which is required to comply with
Federal law and regulations, did not violate the
Agreement when it required the Grievant to
submit to drug testing without the presence of a
Union representative. In addition, the Employer
complied with the Agreement when it discharged
the Grievant after multiple good-faith efforts to
provide him with an opportunity to agree to the
terms of a last chance agreement. The Grievant
failed to accept any responsibility for his
substance abuse. The grievance was denied. 944
The grievant was involved in a verbal altercation
with an inmate at the facility. At arbitration the
employer attempted to introduce an enhanced
recording of a taped conversation which also
contained the argument between the grievant and
the inmate. The arbitrator found that the
enhanced tape did not exist during the
investigation and could not be presented. He
determined that all other evidence – the original
tape, interviews of both the grievant and the