by Contract Number (PDF) - OCSEA

inmate and the grievant’s lack of remorse or
acknowledgment of what occurred during the
confrontation - supported management’s position
that the grievant was removed for just cause.
The grievant threatened the security and safety of
the inmate by challenging the inmate to engage
in a physical confrontation. The arbitrator stated,
“…the evidence of the egregious conduct by the
Grievant under the three rules—24, 38, and 44—
stands alone as a basis for the justification for the
removal in this case.” The Union’s allegation
that the grievant’s removal was in retaliation for
a sexual harassment suit filed against the
institution was unfounded. The arbitrator noted
there was no evidence connecting this grievance
to the suit. The warden was not charged with
any liability in the suit and the investigating
superior in this grievance was not connected to
the suit. 945
The Grievant deliberately used excessive force
on a youth who was totally complying with the
Grievant’s directives. The Arbitrator held that
the Agency failed to prove that the Grievant
interfered with or hampered its investigation of
events because one cannot reasonably expect an
employee to disobey a direct order from his
supervisor not to report events of abuse he
witnessed. The Grievant’s six years of tenure,
above average job performance, discipline-free
work record, and winning an award for “JCO of
the Month” for June 2004 were factors in his
favor. However, the Arbitrator held that the
nature of the Grievant’s misconduct and abuse of
his position as JCO warranted his removal, even
though the Agency’s disciplinary grid did not
absolutely demand that measure of discipline.
The Grievant’s continued employment with the
Agency would be inconsistent with its policy and
fundamental mission. The grievance was denied
in its entirety. 946
The Arbitrator held that the Employer did not
meet its quantum of proof that the Grievant was
guilty as charged. None of the charges were
properly supported by the record. Other
investigation-related factors, those within the
Employer’s control, raised sufficient doubts
regarding the credibility of the Employer’s
decision. The Youth Offender had never filed
one formal complaint regarding general
allegations about the Grievant’s actions. The
allegations only came to the Employer’s
attention when the Youth Offender’s cell mate
raised concerns. However, the cell mate was
never interviewed nor was she brought forth to
testify at the arbitration hearing. The Youth
Offender suffered an untimely death prior to the
arbitration hearing. Her sole link to the dispute,
her cell mate, should have been made available
for direct and cross-examination. Specific
incidents of sexually related misconduct were
raised by the Youth Offender and the Employer.
One incident allegedly took place on a medical
trip. The transport log never surfaced at the
hearing. The other incident allegedly took place
outside a cottage. The allegations were not
supported by something or someone other than
the deceased Youth Offender. A security camera
existed in the exact location; however, the
Employer never attempted to determine whether
an archival copy existed. An impartial
investigation requires such an effort; anything
less jeopardizes any just cause determination.
The Employer did not have just cause to
terminate the Grievant. The grievance was
sustained. 947
A patient escaped and was subsequently hurt.
The grievant did not notice the patient’s absence
and reported that the patient was present when
making her rounds. The Grievant’s actions did
not rise to the level of recklessness because she
was not indifferent to the consequences, nor did
she intend that there be harmful outcomes. The
facts were not enough to establish “abuse.”
However, the Grievant was negligent. She
allowed herself to be fooled by a pile of blankets,
a cold room, and by not taking greater care
during her rounds to see what was under the
blankets. This was not abuse, but it was neglect
of duty and warranted corrective discipline.
Language in the written policies was not specific
and there was room for a range of interpretations
about what the grievant knew was required or
what she should have known. The burden
management places on an employee to speak up
if they don’t understand the written policy,
overlooks the possibility that an employee may
be confident he or she understands what to do
and yet, in reality, be wrong about their
understanding. Management did not prove that
patient abuse occurred and, therefore, did not
have just cause to remove the Grievant. But
Management did have just cause for discipline.
The Grievant was reinstated to her former
position with full back pay, seniority, and
benefits, less two days pay. Her discipline
record reflects a 2-day suspension for a first
offense of Neglect of Duty. 951