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prohibitions against abuse and use of excessive
force. 955
When the Grievant organized, planned, and
promoted a work stoppage she violated Rule
30B. The Arbitrator believed she developed the
plan and solicited the participation of other
employees. When the grievant organized a work
stoppage in the face of an approaching winter
storm, she engaged in “action that could harm or
potentially harm . . . a member of the general
public” and violated Rule 26. Grievant violated
Rule 4 by interfering with the investigation of
the work stoppage. Testimony from other
witnesses showed that the grievant was not
truthful in her accounts of the events. The
Arbitrator believed the state conducted a full and
fair investigation. The Arbitrator did not believe
the grievant was the object of disparate
treatment. Leaders of work actions are identified
and discharged, while employees playing a lesser
role receive less severe penalties. The Arbitrator
did not believe the state failed to use progressive
discipline. In the case of very serious
misconduct an employer is not required to follow
the usual sequence of increasingly severe
discipline. Mitigating factors of long service,
good evaluations, and behaving in a professional
manner in her work as a union steward did not
offset the seriousness of the Grievant’s
misconduct. The Arbitrator concluded that when
the Grievant organized a work stoppage in the
face of major winter storm she provided the state
with just cause for her discharge. 956
The grievance was granted in part and denied in
part. The grievant must enroll in and
successfully complete an EAP program
associated with anger management. The grievant
was required to enroll in the program no later
than thirty days from the date of the award.
Failure to enroll would be grounds for removal.
The grievant was reinstated with all applicable
seniority rights within thirty days of the award.
The discipline was reduced to a two-day fine.
The grievant received no back pay. The grievant
was a Correction Officer charged with
threatening an inmate. The arbitrator found that
the grievant’s conduct warranted discipline;
however, the Union demonstrated that a coworker
who previously committed a similar
offense was treated differently. The employer
offered no explanation for the disparate
treatment. The removal was ruled excessive and
the grievant was reinstated. 957
The grievant was a TPW working third shift at a
group home. When he arrived at work he was
told that a resident was found with knives and
Tylenol. He was instructed to position himself
so he could visually monitor the resident. Coworkers
testified that they saw the grievant
sleeping while on duty. They also testified that
the grievant was not in a physical position to see
the resident if he were on the stairs. During his
shift the grievant placed three telephone calls to
the supervising nurse at home. He was allegedly
rude and disrespectful each time he called. The
arbitrator found that the grievant’s removal was
just. In addition to his rude behavior the grievant
had previously been given a verbal warning and
two (2) five-day working suspensions for similar
offenses within his four years of employment.
958
The central question was whether the Grievant
lost control of security keys to an inmate through
no fault of his own. The Arbitrator felt that the
Grievant used poor judgment in holding the keys
in front of an inmate and letting him take them
without protest. The Grievant’s actions
afterward suggested he knew he had made a
mistake and was trying to cover it up. These
were not actions in-and-of-themselves
warranting termination; however, a proven act of
misconduct must be viewed in context. This was
the Grievant’s sixth performance related
misconduct in his less than two years service and
he was on a Last Chance Agreement strictly
limiting an arbitrator’s authority to that of
reviewing whether he violated the Last Chance
Agreement and/or the rule. When he violated the
rule he broke the Last Chance Agreement and
the Employer had the right to terminate his
employment. The grievance was denied in its
entirety. 961
The grievance was sustained in part and denied
in part. The discharge was to be converted to a
thirty (30) day suspension without pay. The
Grievant was to be restored to employment with
all back pay and benefits, less the thirty day
suspension. The restoration to employment was
to be regarded as a “last chance.” Further
instances of discipline, if not overturned or
modified in the grievance procedure of the
parties, would result in her discharge. Neither
the Employer nor the Union were entirely right
or wrong in the case. The Grievant’s discipline
did not stand in isolation. She had 29+ years of
service with the state with a satisfactory record
until 2004. In addition, she had been diagnosed