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years of state service. The arbitrator found that
the aggravating factors outweigh mitigating
factors in this instance, and the removal was for
just cause. 910
The grievant was charged with sexual
misconduct with inmates and lying during the
investigation of the charge. The arbitrator found
that the employer substantiated the charges and
the removal should stand. The arbitrator cited
the grievant’s “gross abuse of his position as a
Correction Officer and the sexual nature of his
exploitative conduct” as “nothing short of
unprincipled, heinous, and wholly intolerable”.
913
The grievance was granted in part and denied in
part. The removal was reduced to a fifteen (15)
day suspension. The Grievant’s record will only
reflect the charge of Failure to Follow Policies
and Procedures. The grievant was awarded back
pay minus the fifteen days; his seniority and all
other benefits were restored. The grievant was
charged with physically striking a youth inmate.
The arbitrator found that although the youth was
not seriously hurt, he could have been badly
injured. The Grievant had options which could
have been used in an effort to avoid
confrontation. Discipline short of removal was
warranted. The award issued by the arbitrator
was meant to correct the Grievant’s behavior and
to emphasize “discretion is often the better part
of valor when it comes to handling dangerous
and difficult juvenile inmates.” 915
The grievant was reinstated to her former
position with seniority but without back pay and
other benefits. Her request for medical expenses
was also denied. Her record was also adjusted to
reflect an unpaid disciplinary suspension. The
grievant was charged with failing to stop a
physical altercation between two inmates. She
also allegedly stopped a co-worker from
intervening. The arbitrator found that the
employer substantiated the charges. It was noted
that the employer’s delay in its investigation and
report could have been detrimental not only to
the employer’s case, but also to the Grievant’s;
however, the Union did not claim undue harm
was done to the Grievant. Therefore, the issue of
timeliness had little bearing upon the decision.
The delay was seen as a technical error. The
arbitrator found that the grievant made a mistake
in judgment and should be given the opportunity
to learn from her mistake. Removal was too
harsh. 916
An inmate was dead in his cell of an apparent
suicide. The grievant was charged with failing to
perform cell checks. The arbitrator found that
the condition of the body and the filthy condition
of the cell indicates that if the grievant had made
the two rounds per hour as required, the inmate’s
suicide attempt would have been discovered
much earlier. The grievant was a “short-term”
employee with a prior discipline for inattention
to duty. The arbitrator found no mitigating
factors to warrant reducing the removal to a
lesser discipline. 923
The grievant was charged with accessing
employee email accounts without authorization.
He was removed for failure of good behavior;
unauthorized use of state time/property/resources
for personal use. The Union argued that a
procedural flaw occurred in this matter in that
the disciplinary action was untimely. In its
implementation of discipline, management relied
upon a report that took 1¾ years to complete. It
was not reasonable to expect the grievant to
remember events over such a long period of
time. The Union noted that there was a
distinction between accessing an email account
and actually viewing the emails. Accessing the
accounts did not violate the grievant’s network
privileges. The employer could not prove that
the grievant did indeed view the contents of the
accounts. The grievant had a good work record
prior to the discipline. The employer did not
implement progressive discipline in this instance.
The arbitrator rejected the Union’s timeliness
objection, stating that the employer moved in a
timely manner once it was satisfied that the
grievant had violated policy. The arbitrator
noted that the employer allowed ample time for
the Union to conduct a proper investigation. The
arbitrator found that management could prove
that the grievant logged on to several accounts,
but could not prove that he actually read the
contents. Management could not prove that the
grievant used state resources for personal use or
gain. The arbitrator noted that a co-worker had
also accessed email accounts that were not his,
but he had not been disciplined. The arbitrator
stated, “If it is a serious offense to log on to
accounts other than one’s own the question
arises as to why one employee was discharged
and the other was neither discharged nor
disciplined.” The grievance was sustained. The
grievant was reinstated. He received back pay
minus any earnings he received in the interim
from other employment due to his removal. The