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not lead to the conclusion that the employer must
start the progressive discipline process over: 376
The grievant was a Corrections Officer who was
removed for watching inmates play cards while
they were outside their housing unit. The
grievant admitted this act to his sergeant. The
pre-disciplinary hearing had been rescheduled
due to the grievant’s absence and was held
without the grievant or the employer
representative present. The arbitrator found that
because the union representative did not object to
the absence of the employer’s representative that
requirement had been waived. There was also no
error by the employer in failing to produce
inmates’ statements as they had not been used to
support discipline. The removal order was timely
as the 45 day limit does not start until a predisciplinary
hearing is held, not merely
scheduled. 377
The grievant ran out of gasoline as he entered the
parking area of his facility. He was unable to buy
gasoline on his way to work because the station
would not take his fifty-dollar bill. He was seen
siphoning gasoline from a state vehicle to use in
his truck until he could go to buy more at lunch
and replace the gasoline siphoned. He did not
speak to management about his situation because
his regular supervisor was not present. The
arbitrator found that just cause existed for some
discipline because the grievant showed poor
judgment in not obtaining gasoline before work
and not speaking to management personnel. The
grievant was found to lack the intent to steal
instead of merely borrowing the gasoline, thus
the grievant was reinstated without back pay.
378
The grievant was a Corrections Officer who had
been accused of requesting sexual favors from
inmates and accused of having sex with one
inmate three times. The inmates were place in
security control pending the investigation.
During this time statements were taken and later
introduced at arbitration. The arbitrator found
that the employer failed to prove by clear and
convincing evidence that the grievant committed
the acts alleged and management had stacked the
charges against the grievant by citing to a
general rule when a specific rule applied. The
primary evidence against the grievant, the
inmates’ statements, were not subject to cross
examination and the inmate who testified was
not credible. The grievant was reinstated with
full back pay, benefits, and seniority. The
arbitrator recommended that the grievant be
transferred to a male institution. 379
The grievant was an investigator who was
discovered to have used his state telephone credit
card for personal calls, which he afterward
offered to repay. He also gave an inter-office
memo containing confidential information to his
union representative. He was removed for these
violations. The arbitrator found that the
grievant’s explanation for his use of the
telephone card was not credible, however the
employer had notice of other employees who had
misused their cards but issued no discipline to
the others. The document containing the
confidential information was not a typical
document generated in an investigation and the
employer’s rules on disclosure were found to be
unclear. The arbitrator distinguished between
confidential documents and confidential
information, and reinstated the grievant without
back pay. 380
The grievant was a thirteen year employee who
developed absenteeism problems. In just over
one year he received discipline up to and
including a fifteen day suspension. Between
December 1990 and March 1991 the grievant
had eighteen unexplained absence related
incidents for which he was removed. The
arbitrator found that the employer proved that the
grievant failed to account for his activities at
work and that progressive discipline was
followed. The arbitrator noted that while the
grievant has a great deal of freedom while
working, he must follow the employer’s work
rules. The grievance was denied. 381
The grievant attended a pre-disciplinary hearing
for absenteeism at which his removal was
recommended, but deferred pending completion
of his EAP. He failed to complete his EAP and
was absent from December 28, 1990 to February
11, 1991. The grievant was then requested to
attend a meeting with a union representative to
discuss his absence and failure to complete his
EAP. The grievant was removed for
absenteeism. The arbitrator found the grievant
guilty of excessive absenteeism and prior
discipline made removal the appropriate penalty.
The employer was found to have committed a
procedural error. Deferral because of EAP
participation as found proper, however the
second meeting was not a contractual proper predisciplinary
hearing. No waiver was found on the
part of the union, thus the arbitrator held that the