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security and safety of inmates and all other
employees at the facility. 953
The Arbitrator concluded that the decision to
remove the Grievant was not unreasonable,
arbitrary, or capricious and denied the grievance.
The Arbitrator concluded that the Grievant did
everything wrong. He used an unauthorized
“physical action” in the form of kicks; he made
no effort to modulate the force of the kicks in
compliance with Policy No. 301.05; he used the
unauthorized form of “physical action” to punish
or retaliate against the Youth rather than to
control him; and, he failed to report that he
kicked the Youth three times, but readily
reported that the Youth had assaulted him. An
aggravating factor was that a JCO cannot afford
to lose his temper and lash out at youth. The
Agency need not or should not tolerate such
conduct. The strongest mitigating factors were
that the Grievant had not been trained and had
little experience with cell extractions. In
addition, the Grievant had a record of
satisfactory performance and an unblemished
disciplinary record. These mitigating factors did
not diminish the Grievant’s misconduct. The
Arbitrator opined that one must afford JCOs
some “field discretion.” JCOs are not perfect
and one cannot reasonably expect perfect
implementation of applicable rules and
regulations without fail in the “heat of battle.”
As a practical matter, slight deviations from the
strict application of rules governing interactions
with youth must be tolerated—consistent with
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 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 Grievant was indicted on criminal charges,
but entered an Alford plea to the lesser charges of