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workers who were aware of the conduct and
failed to report were not disciplined despite a
duty to report because they trusted and believed
the Grievant to be exchanging food for
information that would lead to a drug bust.
These employees reported the conduct when it
was evident a drug bust was not making
progress. The Employer acknowledged their
conduct was wrong but their conduct was also
explainable. The Union argued the discipline
was excessive and not based on just cause. The
Union argued the Grievant’s co-workers’
testimonies were elicited through subpoena and
should be considered suspect. Further, none of
the witnesses personally observed CO Jackson
give any contraband to inmates. In addition, the
Employer had many opportunities to correct the
Grievant’s behavior, and did not. The Union
suggested that the Employer had tacitly
authorized COs to partake in drug investigations
because it was aware that 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
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
The grievant was a CO who was charged with
allegedly giving preferential treatment to an
inmate and having an unauthorized relationship
with an inmate. The grievant admitted at
arbitration that on occasion he provided an
inmate cigars, scented oil and food from home
and restaurants. He admitted that he accepted
cigarettes from inmates who received
contraband. The arbitrator found that the
grievant was removed for just cause. His
misconduct continued for an extended period of
time; thus his actions were not a lapse in
judgment. He attempted to conceal his
misconduct by hiding food so the inmates could
find it. Therefore, the grievant knew what he
was doing was wrong. The grievant accepted
“payment” for the contraband when he accepted
cigarettes in exchange for the food and other
items he provided to the inmates. The arbitrator
found that grievant’s actions compromised the