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jeopardy; an outcome the Arbitrator was
unwilling to risk. 1025
The grievance involved two separate
incidents. The Arbitrator found that the
evidence was overwhelming that the
Grievant used inappropriate and
unwarranted force in both incidents.
The Grievant was interviewed twice.
The second time he changed his story
and said it was the correct version. The
Grievant also failed to file correct
reports for one of the incidents. The
Arbitrator held that the discipline was
commensurate with the offense and
consistent with ODYS’s work rules and
past practice. 1026
The Arbitrator held that the Employer
properly terminated the Grievant for
abuse. Section 24.01 limits the scope of
an arbitrator’s authority when dealing
with abuse cases. The threshold issue
becomes a factual determination of
whether abuse can be supported by the
record. The record here supported three
abuse incidents. Any one of these
events in isolation could have led to
proper termination; therefore the
Employer was able to establish
sufficient proof that abuse took place.
The Grievant’s inconsistent
observations of the incidents led to a
lack of credibility. The Arbitrator held
that the self-inflicted injuries defense
was not adequately supported. The
Arbitrator found that the Grievant did
not initiate a time out by removing the
resident to “a separate non-reinforcing
room” because no evidence helped to
distinguish or equate the resident’s
bedroom from a “non-reinforcing
room.” 1027
To establish theft, the evidence
must show that the Grievant
intended to deprive the agency
of funds provided to
employees to attend
conferences. The funds were
operated as a short-term loan.
No written policy or consistent
pattern was present regarding
repayment by users. The
arbitrator held that it was
irrelevant how many days it
took the Grievant to repay the
fund since the Employer
essentially allowed each user
to determine the date of
repayment. The Arbitrator
found that several factors
mitigated against removal:
lax/inconsistent enforcement
of rules/policies governing the
fund undermines any
contention that the Grievant
was put on notice regarding the
possible consequences of her
actions; the Grievant’s
treatment of the fund were
explicitly or implicitly
condoned by her supervisor;
and other similarly-situated
users of the fund were treated
differently from the Grievant.
No theft of public funds was
proven ; when put on notice by
Management that immediate
payment was required, the
Grievant complied. The
Arbitrator held there was no
just cause for the discipline
issued.
1028
The Arbitrator ruled that the failure of
the Employer to grant a one week
continuance of the Pre-Disciplinary
hearing was moot. The Arbitrator
overruled the procedural objections.
There was no evidence that the material
requested—but not provided--was relied
upon. The Arbitrator did not find the
Grievant untruthful. The Investigator
said the inmate made no specific
allegations against the Grievant and the
video showed no contact. No officer
saw the Grievant hit the inmate. The
Employer’s conclusion is not supported
by any evidence. The Arbitrator held
that the discipline was not for just
cause. 1029
The Arbitrator held that the Employer
had just cause to terminate the Grievant.
The Grievant’s disciplinary record
exhibited several progressive attempts
to modify his behavior, with the hope
that progressive penalties for the same
offense might lead to positive
performance outcomes. As such, the
Grievant was placed on clear notice that
continued identical misconduct would
lead to removal. The Arbitrator also
held that the record did not reflect any
attempt to initiate having the Grievant