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Grievant should mitigate against his termination.
The Arbitrator held that the investigation and
pre-disciplinary hearing contributed to the delay
and the state made its final decision regarding
the Grievant’s discipline within the 45 days
allowed. 978
The Arbitrator held that the proper resolution of
this issue lies within Article 19. To hold that
Article 19 is inapplicable to the grievance would
require the Arbitrator to ignore the parties’ CBA
and the plain meaning of Article 19. The plain
language of Article 19 does not forbid multiple
grievances over a similar infraction, but only
limits the remedy to individual claims. The
Arbitrator held that the Agreement does not
guarantee that classifications will remain
unchanged throughout the life of the agreement.
The analysis sought to resolve each claim needs
to occur in accord with Article 19 to determine
the appropriate remedy. 979
The Arbitrator held that the Grievant was neither
eligible for, nor entitled to, reinstatement. Based
on the degrees of fault the Grievant was entitled
to twenty-five (25) percent of the back pay from
the date of his removal to the date of the
Arbitrator’s opinion. In addition, the Agency
shall compensate the Grievant for twenty-five
(25) percent of all medical costs he incurred and
paid for out-of-pocket, as a direct result of his
removal. The triggering event for the removal
was the failure to extend the Grievant’s visa. The
following factors contributed to the untimely
effort to extend the visa: (1) the Agency’s failure
to monitor the visa’s expiration, leading to a
belated attempt to extend the visa; (2) the
Agency’s failure to monitor the Grievant’s job
movements; (3) the Grievant’s decision to
transfer to the Network Services Technician
position, which stripped him of proper status
under his visa; and (4) the Grievant’s decision
not to notify his attorney about the transfer to the
NST position. The Grievant’s violation of a
statutory duty, together with his silence, looms
larger in the lapse of the visa than the Agency’s
violation of its implicit duties. The Arbitrator
held that the Agency failed to establish that the
Grievant violated Rule 28. Because the Grievant
was out of status with an expired visa, the
Arbitrator held that he was not entitled to
reinstatement. As to comparative fault, the
Agency and the Grievant displayed poor
judgment in this dispute and neither Party’s fault
absolves the other. 980
Verbal exchanges between two corrections
officers resulted in a physical struggle between
the two officers. The Arbitrator held that the
Agency failed to prove that the Grievant violated
either Rule No. 19 or Rule No. 37. The
Arbitrator held that more likely than not, the
other officer was the aggressor in the events
leading up to the struggle. The Grievant acted in
self defense and believed that any reasonable
person would have acted similiarly. Rule 19 was
not intended to deprive the Grievant or other
corrections officers of the right to defend
themselves against a physical attack from a
fellow staff member. The Arbitrator held that it
strained credibility to argue that the purpose or
spirit of Rule No. 37 was to deprive correctional
officers of the right to protect themselves against
attacks from coworkers. The Grievant’s
behavior was the kind of misconduct that
undermines the Grievant’s position as a role
model for the inmates. However, the altercation
took place where only a handful of inmates were
present. The Grievant’s fault or misconduct in
this dispute was her voluntary participation in
verbal exchanges with the other corrections
officer that led to a physical struggle between the
Grievant and that Officer. That misconduct
warranted some measure of discipline. The
Arbitrator held that the Grievant was not
removed for just cause. The Agency should not
terminate a fourteen-year employee for selfdefense
conduct or for engaging in juvenile
verbal exchanges with a coworker, even though
the behavior is clearly unacceptable. Some
measure of discipline is clearly warranted to
notify the Grievant and the other corrections
officer that verbal barbs have no place in the
Agency and will not be tolerated. A three-month
suspension without pay should sufficiently deter
the Grievant and others from embracing such
conduct. The agency was ordered to reinstate the
Grievant. 987
The Arbitrator held that, management
demonstrated by a preponderance of the
evidence that the Grievant violated General
Work Rules 4.12, 5.1, and 5.12, and therefore,
some measure of discipline was indicated.
Mitigating factors were the Grievant’s three
years of tenure, satisfactory performance record,
and no active discipline. In addition, the Agency
established only one of the three major charges
that it leveled against the Grievant. Also,
nothing in the record suggested that the Grievant
held ill will against the Youth. The Arbitrator