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judgment and his less than credible performance
on the witness stand. The primary reason for his
reinstatement is that the Grievant never intended
to harm the Youth. The Grievant was reinstated
under very strict conditions: he was entitled to
no back pay or other benefits during the period
of his separation, and he was reinstated pursuant
to a two-year probationary plan, under which he
shall violate no rule or policy involving any
youth. Failure to comply will be grounds to
remove the Grievant. 995
The Arbitrator relied on the video evidence. The
video indicated that the youth was not engaged
in any conduct that required imminent
intervention by the Grievant. The Arbitrator
held that, given the seriousness of the use of
unwarranted force by the Grievant and his failure
to follow proper procedures when judgment
indicated that a planned use of force was
required, just cause for discipline existed.
However, removal was inappropriate. The
Grievant’s record of fourteen years of good
service as well as his reputation of being a
valued employee in helping diffuse potential
problem situations mitigated against his removal.
The incident was hopefully an isolated, one-time
event in the Grievant’s career. 996
The Arbitrator found that the Grievant should
have been aware of Rule 26. He held that there
was no disparate treatment. The choice of the
charge of the Grievant was reasonable and quite
distinguishable from the facts concerning another
corrections officer. The record contained
evidence of evasion by the Grievant as to the
reason why he did not report his arrest
immediately. Any violation of Rule 26 would
have been the first offense by this Grievant of
Rule 26 and, as such, the maximum sanction for
the first offense is a 2-day fine, suspension, or
working suspension. However, there was a last
chance agreement signed by the Grievant, the
warden, and by a union representative. The
Arbitrator was limited by the rules which the
Grievant accepted in the last chance agreement;
therefore, the Arbitrator has no authority to
modify the discipline in this case. Rule 26, an
SOEC Rule on the performance track of the
disciplinary grid, was violated by the Grievant.
Once such a finding is made, the Grievant
himself agreed in the last chance agreement “that
the appropriate discipline shall be termination
from (his) position.” 998
The Arbitrator found that the evidence showed
the Grievant had violated Work Rule Neglect of
Duty (d) and Failure of Good Behavior (e). The
evidence failed to demonstrate any words or
conduct that rose to the level of a threat or
menacing. The Arbitrator held that the removal
was excessive due to the Grievant’s medical
condition; the Grievant’s acute personal issues; a
relatively minor discipline record at time of
removal; eleven years of satisfactory service; and
the absence of threatening conduct. The
Arbitrator reinstated the Grievant with
conditions: she will successfully complete an
EAP program for anger management and
stress—failure to do so would be grounds for
immediate removal; discipline of a 15 day
suspension without pay for violating the work
rules; she shall receive no back pay, senority
and/ or any other economic benefit she may have
been entitlted to; she shall enter into a Last
Chance Agreement, providing that any
subsequent violation of the work rules for a year
following her reinstatement will result in
immediate removal. 999
The Arbitrator found that from approximately
1995 until 2006 the Employer did not investigate
relationships and/or other improprieties
involving gifts or money received by employees
from residents. The Arbitrator cited a 2007
decision: “Arbitrator Murphy found that the
Employer’s lax enforcement of its policies ‘. . .
lulled the employees into a sense of toleration by
the Employer of acts that would otherwise be a
violation of policy.’” There was no evidence
that the Employer made any efforts to put its
employees on notice that certain
policies/procedures which were previously
unenforced would no longer be ignored. The
Arbitrator noted that statements made by the
Grievant and her co-workers indicated
evasiveness, but not falsification. The Arbitrator
held that just cause did not support the decision
to suspend the Grievant for ten (10) days.
Furthermore, the Grievant’s failure to report any
information under Policy No. 4 prior to
November, 2006 occurred in an environment
indicating that relationships or the exchange of
items of value was known and tolerated by OVH
Management. 1001
Central to the issue was the credibility of the
Grievant. There wasevidence to contradict the
Grievant’s statement that the youth threatened to
harm himself. Reliable evidence existed to