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answer questions, even after the Department’s
efforts to educate both the grievant and her
attorney, did frustrate the Department and
harmed its legitimate interest in conducting an
investigation, thus a lengthy suspension was
warranted. 703 (1997-2000 contract)
The 1996 Last Chance Agreement signed by the
grievant and the Department did not encompass
”offduty” drug use. The grievant’s absences on
the last two occasions prior to removal were a
result of his drug use off-duty. The Arbitrator
found that the grievant did not violate the
agreement. 704 (1997- 2000 contract)
An inmate, who was considered to be a high risk
with the potential to act out in a violent manner,
struck a CO in the face as she responded to his
call. CO #1 went to the inmate's cell, opened the
door, and entered the cell. A confrontation
ensued with the inmate during which the
Department's CO witness testified that CO #1
struck the inmate in the head three times with his
fist. Though CO #2 did not strike the inmate, he
covered up what transpired in the cell with the
inmate, and he did nothing to stop CO #1’s
behavior. The Arbitrator found that it was
reasonable to conclude that the two correction
officers purposely placed themselves in the
inmate’s cell, and they instigated the incident
which occurred, violated the rules of the
Standards of Employee Conduct; removal was
warranted. 705 (1997-2000 contract)
An inmate, who was considered to be a high risk
with the potential to act out in a violent manner,
struck a CO in the face as she responded to his
call. CO #1 went to the inmate's cell, opened the
door, and entered the cell. A confrontation
ensued with the inmate during which the
Department's CO witness testified that CO #1
struck the inmate in the head three times with his
fist. Though CO #2 did not strike the inmate, he
covered up what transpired in the cell with the
inmate, and he did nothing to stop CO #1’s
behavior. The Arbitrator found that the Employer
proved that the grievant covered up what
transpired in the cell with the inmate. He also
noted that grievant continued to protect both his
co-worker and himself even after a witness came
forward with the truth about what happened
during the incident. The Arbitrator found that
the role played by the grievant in this incident
warranted a “stiff corrective action,” but he
concluded that there was no just cause for
grievant’s removal. 706 (1997-2000 contract)
The Arbitrator stated that the testimonies of both
the grievant and the witness were credible.
However, she found the grievant’s testimony
more convincing, and she based that decision on
several facts. First, the grievant admitted the
possibility that he might have touched the client.
Second, before he was aware that he was
suspected of hitting the client, he mentioned the
client’s self-injurious behavior. Third, he
volunteered that the client was groaning, and that
could have explained the noises the witness
heard. Fourth, he stated that nothing unusual
happened on the shopping trip. The Arbitrator
noted that the witness could have misinterpreted
the situation due to her lack of knowledge of the
client’s mental retardation, nonverbal
communication, and self injurious behavior. The
Arbitrator found that the State had no just cause
to remove the grievant from his position. 708
(1997-2000 contract)
The Grievant admitted that he failed to make all
of the required 30-minute hallway checks and a
2:00 a.m. headcount and then made entries in the
unit log indicating he had done so. The
Arbitrator held that just cause existed for
discipline. Since the Grievant committed a
serious offense less than two years after being
suspended for six days for the same offense, the
Arbitrator held that the principles of progressive
discipline had been followed. In addition, the
Arbitrator held that long service cannot excuse
serious and repeated misconduct. It could be
argued that an employee with long service
should have understood the importance of the
hallway checks and headcount more than a less
senior employee. The Union argued that since
the Grievant was not put on administrative leave,
it suggested that his offense was not regarded as
serious. The employer, however, reserved the
use of administrative leave for cases where an
employee is accused of abuse. The Union also
argued that the time it took to discipline the
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