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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
The grievance was upheld in part and denied in
part. The employer was directed to send the
Grievant to a psychologist or psychiatrist to
determine his fitness to return to work. If the
Grievant was determined to be fit to return to
work, he was to be promptly reinstated to his
former position on a last chance basis with no
loss of seniority. The Grievant was to be given
back pay and benefits from the date of the third
step grievance meeting until he was returned to
work. Any interim earnings were to be deducted
from his back pay. The Arbitrator rejected the
Employer’s contention that the grievance was
not arbitrable because it was untimely. It was
unclear when the Grievant was removed. A
notice of removal without an effective date has
no force or effect. When the Grievant did not
respond to the Employer he appeared to have
been acting in accord with his doctor’s
instructions. While the Grievant was informed
by payroll that he had been removed, the
collective bargaining agreement requires that the
notice be in writing and provided to both the
employee and the union. The allegation of
misconduct arose from three incidents involving
a coworker. In the first the Grievant was joking
and it should have been obvious to the coworker.
Given the questions about the coworker’s view
of the first incident and her failure to report the
alleged misconduct until the next day, the
Arbitrator could not accept the coworker’s
testimony on the second incident. Because he
was out of line when he confronted the coworker
in a rude and aggressive manner, the Grievant
merited some disciplinary action for the third
incident. In addition, the Arbitrator did not
believe the Employer established that the
Grievant made false or abusive statements
regarding the coworker. The strict adherence to
the schedule of penalties in the Standards of
Employee Conduct sometimes results in a
penalty that is not commensurate with the
offense and the employee’s overall record. The
Grievant was a 12-year employee with good job
evaluations and his offense was minor. The
Arbitrator believed the employer was prepared to
return the Grievant to work on a last chance
agreement. The Arbitrator denied the request for
full back pay based on the Grievant’s failure to
contact the employer or to authorize the union to
contact the employer on his behalf. Back pay
was granted from the date of the third step
grievance meeting where the employer should
have attempted to implement the alternative to
removal it had proposed earlier. 932
The Grievant was a Corrections Officer who was
terminated for violating a work rule that
prohibits employees from giving preferential
treatment to any individual under their
supervision, Rule 45 (A)& (B). Beginning in
early 2005, the Grievant began exchanging food
for information on drug related activity in the
institution. At the time of the discipline, the
Grievant had no prior discipline on his record.
The Employer argued that the Grievant’s coworkers
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