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guilty plea; however, for the purposes of
arbitration the Grievant’s Alford Plea did not
establish that the Grievant used excessive force.
In addition, the Arbitrator held that the Grievant
did not violate any duty to report the use of
force. The Grievant did have a clear and present
duty to submit statements from youth when
requested and violated Rule 3.8 and 5.1 when
refusing to do so. The Arbitrator found that the
termination of the Grievant was unreasonable.
Under ordinary circumstances he would have
reinstated the Grievant without back pay, but
reinstatement could not occur due to the Alford
plea. However, because of the number of
violations and the defiant nature of his
misconduct, the Grievant was not entitled to any
monetary or non-monetary employment benefits.
The grievance was denied. 968
The grievance was granted in part. The Grievant
was reinstated, but was not entitled to back pay
or any other economic benefit. The Grievant
must enter into a Last Chance Agreement with
DPS for two years and must successfully
complete an appropriate program under the
OEAP guidelines. If the Grievant failed to
comply with any of the conditions he would be
subject to immediate removal. The Employer
waited 55 days to notify the Grievant that a
problem existed with two assignments. The
Arbitrator agreed that this delay was
unreasonable under Article 24.02 and was not
considered grounds to support removal. Given
that his direct supervisors considered the
Grievant a good worker, any conduct which
could accelerate his removal should have been
investigated in a timely manner. The Arbitrator
found that sufficient evidence existed to infer
that the Grievant’s conduct surrounding one
incident--in which proper approval was not
secured nor was the proper leave form
submitted--was directly related to a severe
medical condition. Twenty one years of
apparent good service was an additional
mitigating factor against his removal. DPS met
its burden of proof that the Grievant violated
DPS’ Work Rule 501.01(C) (10) (b) on two
dates and that discipline was appropriate, but not
removal. However, as a long-term employee the
Grievant was knowledgeable about DPS’ rules
relating to leave and any future violation would
act as an aggravating factor warranting his
removal. 969
The grievance was denied in part and upheld in
part. The termination was converted to a 3-
month suspension. The Grievant should be made
whole for her lost wages and other benefits under
the contract from the date of the end of the
suspension to the date of her return to work. The
Employer did not have just cause to terminate
the Grievant, but did have just cause to suspend
her for a lengthy suspension for accepting money
from a resident. There was a sufficient basis to
convince the arbitrator that the Grievant did
accept money from a resident. The lax
enforcement of Policy No. 4 lulled the
employees into a sense of toleration by the
Employer of acts that would otherwise be a
violation of policy. This lax enforcement
negates the expectation by the Grievant that
termination would have occurred as a result of
the acceptance of money from a resident. The
age of the resident and the amount of money
involved called for a lengthy suspension. The
Arbitrator held that there was no evidence to
support the claim that the Grievant had received
a defective removal order and that the
requirement that the Grievant be made aware of
the reasons for the contemplated discipline was
met. 970
The grievance was sustained in part and denied
in part. The grievant was reinstated without back
pay. However, his seniority was left intact. The
grievant was not awarded any other benefit the
interim of his removal. The grievant was
charged with pushing and attempting to choke a
youth inmate. The arbitrator found that the
grievant used inappropriate force against the
youth on three occasions. However, the removal
was unreasonable in light of the grievant’s
seventeen years of service and his discipline-free
record. The arbitrator stated that a “healthy dose
of discipline was clearly warranted to impress
upon the grievant and any other JCOs of like
mind “ that such behavior is unsatisfactory. 971
The grievance was sustained in part and denied
in part. The Grievant’s removal was reduced to
a three-month (3-month) suspension. The
Agency was entitled to deduct from any back
pay owed to the Grievant any and all wages he
either did or could have earned with due
diligence and a good-faith effort to secure
alternative employment. The Grievant was
entitled to Roll Call Pay, Shift Differential, and
Holiday Premium Pay. He received overtime
pay for any overtime that he could prove he
normally would have worked based on his
historical work record. He received any
Vacation Leave, Sick Leave, and Personal Leave