Ocb grievance number




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ARBITRATION SUMMARY AND AWARD LOG

OCB AWARD NUMBER: #1480


OCB GRIEVANCE NUMBER:

27-02-20000808-0696-01-03


GRIEVANT NAME:

George Diaz


UNION:

OCSEA/AFSCME Local 11


DEPARTMENT:

Rehabilitation and Correction


ARBITRATOR:

Anna DuVal Smith


MANAGEMENT ADVOCATE:

Dean McCombs


2ND CHAIR:

Jeffrey Wilson


UNION ADVOCATE:

Mike Hill


ARBITRATION DATE:

January 24, 2001


DECISION DATE:

April 2, 2001


DECISION:

Modified


CONTRACT SECTIONS:

24.01








HOLDING: Modified

COST: $



SUBJECT:

ARB SUMMARY #1480


TO:

ALL ADVOCATES


FROM:

MICHAEL P. DUCO


AGENCY:

Rehabilitation and Correction

UNION:

OCSEA/AFSCME Local 11

ARBITRATOR:

Anna DuVal Smith

STATE ADVOCATE:

Dean McCombs

UNION ADVOCATE:

Mike Hill

BNA CODES:



Grievance is modified.


The grievant, George Diaz, was a Correction Officer at the Allen Correctional Institution with approximately 6 years of service when he was removed from his position on July 26, 2000 for violations of DR&C work rules #7 (Failure to follow post orders, administrative regulations, policies, procedures and directives), #24 (Interfering with or failing to cooperate in an official investigation or inquiry), and #43 (Physical abuse of an individual under the supervision of the Department). The grievant had no active disciplinary record at the time of his removal.
On April 28, 2000 the grievant was working his second shift bid position in the Sugar Creek Developmental Unit (SCDU). Staff bidding to this post must receive specialized training in mental health above that received by all Correction Officers. These COs have chosen to work with this difficult population. They work side-by-side with contracted (non-union) treatment staff supplied by Corrections Medical Services (CMS). On the evening of April 28 one of the CMS staff was conducting a bingo game for the inmate/patients. Level 2 inmates are locked down at 5:30 p.m., and one of them began banging on his cell door. The grievant, who was helping with the bingo game, investigated the disturbance. He promised the inmate a cigarette if he would calm down. However, the inmate again began to act out. The grievant returned to the pod accompanied by CO Sean Tidd. One of the CMS staff, who observed the two COs enter the inmate’s cell at 7:20 p.m., reported that the inmate became quiet when the grievant went into his cell. Although the CMS staff could not observe this, the grievant later admitted that he had placed the inmate in steel handcuffs and fastened him to his bunk, but for no longer than five minutes..while he was searching for a cigarette to mollify him. The CMS staff testified that when she made her rounds (7:45 to 8:15 in the logbook) the inmate was still handcuffed to his bunk. When questioned by an RN about the CMS staff’s oral report to her, the grievant cried “What!?”. No one filed an Incident Report at this time. On May 2, the RN, feeling bothered about this incident even though there were no evident signs of injury or distress to the inmate, reported it to Case Manager Phil Kerns. Kerns filed an incident report on May 4, and an investigation ensued, resulting in the grievant’s dismissal, and the probationary removal of CO Tidd.
Management argued the fact that this inmate is mentally retarded and mentally ill distinguishes this case from those involving general population inmates. A consent decree settling a lawsuit led to the development of policies addressing the special needs of the DR&C mental health units. One of these policies, DRC 319-13 defines when physical restraints may be utilized. In this case, the grievant deviated from what constitutes acceptable use of restraints. Handcuffing is considered use of force which is governed by a policy delineating six conditions when force is appropriate. None of these conditions existed in the grievant’s situation described herein. Calming an inmate while searching for a cigarette is not among the reasons justifying the use of force. The case was not referred to the Use of Force Committee (a peer review committee which rules on the necessity for the use of force, and the level of force used) because DR&C considered this a case of inmate abuse, above and beyond the inappropriate use of force. This conclusion is based not on the fact that the inmate is mentally retarded, but on the fact that the inmate was deprived of his basic needs (e.g., appropriate supervision, water and toilet facilities, and the ability to summon medical assistance). This constitutes physical abuse even thought there were no injuries to the inmate. DR&C urged the Arbitrator to view this case as though the incident had occurred in the Department of Mental Retardation and Developmental Disabilities. As to the other charges, DR&C argued that the grievant was uncooperative and untruthful during the investigation, and that he failed to report his use of force as is required by policy.
The Union argued that, while the grievant might have used better judgement, the cuffing of the inmate did not rise to the level of inmate abuse; the inmate suffered no injuries. The State did not prove that the inmate was cuffed to his bunk for more than five or ten minutes. There was no Use of Force Committee convened. The two CMS staff involved received virtually no discipline even though they did not file incident reports. The Union cited the Geraldine Winfield case (27-21-19930713-0950-01-03) in which Dr. Harry Graham found that no abuse had occurred citing a lack of physical evidence of abuse and the lack of a medical examination. The Union also pointed to a recent case out of the Orient Correctional Institution where a blind inmate was held in isolation for three months, yet the managers responsible were dealt with leniently, and to Arbitrator Smith’s holding in VanLeer where she found disparate treatment under similar circumstances in this Department of Youth Services case. The Union argued that while it is true that the grievant did not file a report, neither did the CMS staff who suffered next to no consequences for their inaction.
Arbitrator Smith stated that the question is not whether the grievant restrained the inmate with handcuffs for thirty-five or fewer minutes, but whether this act constitutes abuse. While agreeing that the standards used in MR/DD to define abuse might exist in this situation, she held that those standards could only be applied to this grievant if the State could prove that he had been put on notice of the higher standards. Such was not the case here. Therefore, relying on the standards delineated by Dr. Graham in Winfield, the Arbitrator could not find that the inmate had been abused due to the absence of any physical harm to him, and the lack of any proof that, had the inmate been medically examined, any physical injury would likely have been found. However, Arbitrator Smith did find that the act of handcuffing the inmate to his bunk under these circumstances to be the inappropriate use of force which might have resulted in some injury to the inmate. Finding termination too severe a penalty for inappropriate use of force, the Arbitrator determined that the Grievant did deserve discipline. Considering the proven charges and the grievant’s previous clean record, Arbitrator Smith modified the removal to a five-day suspension.


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