by Contract Number (PDF) - OCSEA

offenders. The incident was recorded by video
camera. The Employer attributed all of the youth
offender’s injuries to the Grievant; the Arbitrator
disagreed. In the opinion of the Arbitrator the
youths were not credible, in either their own
statements or their combined statements and
testimony, because they were not able to recall
with sufficient clarity the material facts of an
incident that was not complicated. In addition,
in their hearing testimony each youth admitted
that his written statement was at odds with the
video. The grievance was granted; however, the
Arbitrator stated: “If in fact the Grievant
committed those violations the finding that this
evidence failed to demonstrate just cause should
not be viewed as a victory only that, in my
opinion the evidence fails to support that the
discipline was for just cause.” In other words,
the state failed to prove their case, but the
Grievant was not found innocent. 984
The Arbitrator held that to sustain a charge of
threatening another employee an employer must
have clear and convincing proof. Here the proof
did not even rise to the preponderance standard,
being based solely on the report of the co-worker
allegedly threatened, who had a deteriorated
relationship with the Grievant since the events of
a prior discipline. The investigator did not
consider that the co-worker may have
exaggerated or over-reacted. Management’s
handwritten notes were held to be discoverable
under Article 25.09. It had refused to produce
them until after the grievance was filed and then
had to be transcribed for clarity, which delayed
the arbitration. The investigator breached the just
cause due process requirement for a fair and
objective investigation which requires that
whoever conducts the investigation do so
looking for exculpatory evidence as well as
evidence of guilt. Then, to make matters worse,
the same investigator served as the third step
hearing officer, essentially reviewing his own
pre-formed opinion. 985
The failure of the Grievant to timely call off by
47 minutes is not in dispute, nor is the past
disciplinary record which contains various
interventions and four separate, but similarly
related infractions that resulted in discipline.
The Grievant maintained that over-the-counter
medication she took for severe leg cramps
caused her to oversleep. The Grievant was
certified for certain medical conditions
recognized under the FMLA; however, none of
the Grievant’s certified FMLA medical
conditions affected her ability to call off
properly. The facts failed to support a finding
that “circumstances” precluded proper
notification. The Arbitrator held that BWC
exercised discretion under Art. 29.03 and the
Work Rules when it determined removal should
not occur and instead imposed the suspension.
Given the choice of removal versus suspension,
BWC acted properly. “Just cause” existed and
no standards were violated in disciplining the
Grievant. The record is undisputed that the
Grievant received increasing levels of discipline,
including economic penalties, to impress upon
her the significance of her non-compliance with
the attendance procedures. The absence of
attendance infractions since her last discipline
indicates that the Grievant can correct her
behavior. 986
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