In re STATE OF NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES (NEBRASKA
STATE PENITENTIARY)
and
NEBRASKA ASSOCIATION OF PUBLIC EMPLOYEES LOCAL 61, AFSCME
110 Lab. Arb. (BNA) 129
March 19, 1998
Appearances: For the State: George Green, general counsel; Kathleen A. Blum, associate counsel; Harold W. Clarke, director.
For the union: David Fields and Lee Nugara, organizers; Joyce M. Pocras, grievant's personal attorney.
Paul J. Caffera , Arbitrator
OPINION
The Issue
The issue for determination, as stipulated by the parties, is as follows:
"Was the Grievant, B_, terminated in violation of the Collective Bargaining Agreement? If so what shall be the remedy?"
Remedy Sought
The Union seeks the following relief:
"Return employee back to previous position, if appropriate. If not appropriate, place employee into lay off pool, give employee bumping rights into appropriate position. Inspect all security position records to guarantee equal treatment. All back pay, benefits, and seniority restored. All attorneys fees reimbursed. Any other relief to make grievant whole."
Relevant Contract Language
Article 3--Management Rights
3.7 [Management's rights include, but are not limited to] [t]he right of hire, examine, promote, train, transfer, assign, and retain employees; suspend, demote, discharge or take other disciplinary action against employees for just cause. . . .
Article 4--Grievance Procedure
4.10.8 The arbitrator's scope of review shall be to determine whether or not term(s) of this Contract has/have been violated, and whether the Agency's action was taken in good faith and for cause. . . .
Article 5--Layoffs and Resignations
5.1 The Agency shall decide when a layoff is necessary, and which classes and positions will be affected.
5.2 Within three workdays of issuing the layoff notices to affected employees, the Agency shall meet with the Union regarding the layoff. An overall layoff plan shall be provided to the Union at least five calendar days prior to the meeting between the Union and the Agency. . . .
5.3 Each employee affected by a layoff . . . shall not be provided . . . less than fifteen workdays [notice]."
5.5 When a layoff occurs the following rules shall apply:
a. The Agency shall identify the affected classes and positions, and shall establish bumping rights. . . .
* * *
Article 10--Discipline or Investigatory Suspension
10.1 . . . [t]he Employer shall not discipline an employee without just cause, recognizing and considering progressive discipline.
Article 14--Authorized Leave
14.22 Leave of Absence An Agency Head and/or his/her Designee may grant employees an unpaid leave of absence, not to exceed one year. . . .
Appendix M--Department of Correctional Services--
M.8.8 State Service Anniversary Date--The state service date is the date of hire for a new employee. The [s]tate service date for rehired employees shall be adjusted by the number of calendar days absent if reemployed within one year. . . . Employees who left state service for other than disciplinary reasons and return within one year shall be given credit for previous state service by having their service date reinstated minus the amount of time absent.
Background
From December 4, 1989 until March 10, 1997, B_ (the "Grievant," "B_") worked for the Department of Correctional Services (the "DCS," the "Department"). On February 11, 1991, the Grievant was promoted to the rank of Corporal. Each of the positions held by the Grievant required that he be qualified to possess and use ammunition and firearms, such as the AR-14 rifle (a high powered rifle) and a shot gun.
Within the last three years of his employment with the Department, the Grievant received the following discipline: 1994) six (6) month probation for making inappropriate remarks while working at the front entrance; 1995) ten (10) day suspension for making an inappropriate remark to a new hire while on tour; and 1996) six (6) month probation for allowing a security violation to occur. However, throughout the term of his employment, the Grievant's performance was rated as being satisfactory to above satisfactory.
On the morning of August 9, 1994, as he was preparing to report to work, the Grievant and his intoxicated wife had an altercation in which the Grievant struck and bloodied his wife's nose. The Grievant then reported to work the first shift at the Nebraska State Penitentiary ("NSP"). Upon reporting to work, the Grievant immediately notified his supervisor of the altercation and informed the supervisor that he expected to be arrested at work that morning; shortly after the start of the first shift, the Grievant was in fact arrested at the NSP front entrance and taken to jail. On November 7, 1994, after failing to appear in court on two previous occasions, the Grievant pled nolo contendere to the charge of third-degree assault and was fined one-hundred dollars ($100.00) for the assault and an additional twenty dollars ($20.00) for failing to appear. Thus, the matter was laid to rest.
However, in 1996 the Congress of the United States amended the Gun Control Act of 1968 ("Gun Control Act") and made it unlawful for any person convicted of domestic violence to receive firearms or ammunition. The law reads in part:
Section 921 (a) of title 18, United States Code
(33)(A) . . . [T]he term "misdemeanor crime of domestic violence" means an offense that--
(i) is a misdemeanor under Federal or State law; and
(ii) has, as an element, the use or attempted use of physical force . . . committed by a current or former spouse . . . .
* * *
(B)(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or had civil rights restored . . . unless the . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."
Section 922 (g) of title 18, United States Code
(g) It shall be unlawful for any person--
* * *
(9) who has been convicted in any court of a misdemeanor crime of domestic violence, to . . . receive any firearm or ammunition . . . .
(h) It shall be unlawful for any . . . person described in . . . subsection (g) of this section, in the course of [their] employment--
* * *
(2) to receive any firearm or ammunition . . . .
* * *
Upon learning about these amendments to the Gun Control Act, Harold Clark, the DCS Director (the "Director") instructed the Department's Personnel Administrator, Gary Burger ("Burger," the "Personnel Administrator"), to determine whether any of the Department's approximately one-thousand-five-hundred (1,500) employees were affected by the changes. In response, Burger distributed two memoranda on January 2, 1997. One memorandum informed management personnel of the new gun ban for employees convicted of the misdemeanor crime of domestic violence. The other memorandum, sent to corrections staff whose jobs required them to handle firearms, defined "misdemeanor crime of domestic violence" and asked the employees to answer the question: "Have you ever been convicted of a misdemeanor crime of domestic violence?" Only one of the Department's employees acknowledged such a conviction: the Grievant.
On February 25, 1997, Burger notified the Grievant that ". . . because you have been convicted of a misdemeanor involving domestic violence, we need to meet and discuss your employment with our Department." Burger also suggested that the Grievant bring representation to the meeting, which was held on March 6, 1997.
Although his representative failed to appear at the meeting on March 6, the Grievant opted to proceed without representation. At this meeting, Burger explained the requirements of the amendments to the Gun Control Act and informed the Grievant that his job was on the line. The Grievant acknowledged understanding the law and its implications for his future employment. The Grievant further explained that he was trying to have his conviction overturned under Nebraska Statute 29-2224 ("29-2224"). The Grievant then asked that the State allow him to attempt to resolve the issue before taking any adverse action against him. Immediately after Burger's meeting with the Grievant, the Director considered the Grievant's request to allow him to remain employed by the Department until he had an opportunity to get the conviction set aside. Being unfamiliar with the statute cited by the Grievant, the Director asked the State Attorney General's office for an explanation of that law: 29-2224. The Attorney General's office checked the statute books and determined that 29-2224 had been repealed. Thus, the Director decided on March 7, 1997, to immediately suspend the Grievant and terminate him effective March 10, 1997, granting the Grievant two weeks pay in lieu of notice.
On March 14, 1997, B_ grieved his termination. The Department rejected the Grievance. The Union appealed this rejection to arbitration on April 30, 1997 and this Hearing later ensued.
Between the date of the denial of his Grievant and the date of this Hearing, the Grievant continued his efforts to have his conviction set aside. As it turns out, the Grievant had cited the incorrect statute in his meeting with Burger. In actuality, it is Nebraska Statute 29-2264, not 29-2224, that allows a judge to set aside a conviction. That statute reads in part:
29-2264 Probation; completion; conviction may be set aside. . . .
* * *
(2) Whenever any person is convicted of a misdemeanor or felony and is placed on probation by the court or is sentenced to a fine only, he or she may . . . petition the sentencing court to set aside the conviction.
* * *
(4) The Court may grant the offender's petition and issue an order setting aside the conviction . . . The order shall:
(a) Nullify the conviction; and
(b) Remove all civil disabilities and disqualifications imposed as a result of the conviction.
(5) The setting aside of a conviction . . . shall not:
(a) Require the reinstatement of any office, employment, or position which was previously held and lost or forfeited as a result of the conviction;
* * *
On May 21, 1997, over the objection of the County Attorney's Office, a judge in the Lancaster County Court granted the Grievant's request and ruled that "[t]he conviction [third-degree assault--misdemeanor domestic violence] . . . is set aside and held for naught."
Subsequent to having his conviction set aside, and while awaiting this Hearing, the Grievant was hired by the Department into the temporary (six month) but full-time position of Delivery Supervisor for Cornhusker State Industries (the Department's profit-making prison work program). This job provides him with full benefits. At the expiration of the first six month term, the position was renewed for another six months and the Grievant's supervisor is presently attempting to convert the position into a "permanent" position.
Position of the State:
The State argues four (4) main points:
1) The Grievant was terminated in accordance with the provisions of federal law;
2) In carrying out the termination, the State acted in good faith and in accordance with the requirements of the CBA;
3) The Union's claim that the Department could have done more to help the Grievant avoid losing his job is the wrong standard for the Arbitrator to use in judging the Department's actions;
4) Now that the Grievant's conviction has been overturned, he may apply for any open position for which he is qualified, but it would be improper for the Arbitrator to restore him to his prior position.
The State contends that it had no option but to terminate the Grievant's employment, due to the requirements of the Gun Control Act. The State asserts that the Gun Control Act does not give an employer any discretion; if an employee has been convicted of misdemeanor domestic violence, he or she may not receive either weapons or ammunition. Since the Grievant's job required him to use firearms, but the law prohibited him from doing so, the State argues that it had no choice but to sever his employment with the Department.
The State insists that the Grievant was treated fairly and was not denied due process. The State notes that the DCS has approximately 1,500 employees and all of those whose job description requires them to use firearms were surveyed to determine whether they had ever been convicted of misdemeanor domestic violence. The State explains that when the Grievant stepped forward--the only one of the surveyed employees to do so--and revealed his prior conviction, Burger met with the Grievant to assess the situation. When the Grievant told Burger about the possibility of getting the conviction set aside, Burger even recommended to the Director that termination be delayed until the outcome of the petition to set aside the conviction became known. The State argues that the decision to terminate the Grievant came only after the Director attempted to verify the Grievant's claim that his conviction could be set aside but found that the statute that the Grievant claimed would allow the set aside was not even "on the books." The State argues that the Department gave the Grievant due process and that it attempted in good faith to verify the existence of the statute that eventually allowed the Grievant's conviction to be set aside; the fact that the Department could not verify the existence of the statute was the Grievant's fault. It was, the State notes, the Grievant who provided the wrong citation to the Department.
The State disputes the Union's contention that the Department "could have done more" to help the Grievant retain Departmental employment. The State argues that it complied with the provisions of the CBA. The State asserts that "behind the wall," all Corporals need to be firearm eligible, and that, because of his conviction, the Grievant was not. The State contends that "we have gone the extra mile to get him a job with benefits," noting that the Grievant received a full-time job, albeit a temporary one. The State emphasizes that the Grievant is the only temporary employee receiving full benefits, the Grievant is continuing to accrue seniority with this position, and that although a temporary six-month position, the term of the Grievant's new job has been extended once already. The State argues that it has worked hard to "avoid putting the screws to" the Grievant.
The State notes that now that the Grievant's conviction has been set aside, he is again qualified to receive firearms and ammunition and he is "welcome to apply" for any open position for which he is qualified. The State argues that the Nebraska law that allowed the Grievant to have his conviction set aside, does not entitle the Grievant to automatically get his job back and the Arbitrator would be ignoring that law should he reinstate the Grievant to his former position. The State insists that it has dealt fairly with the Grievant throughout this process and will continue to do so should he reapply for a "permanent" position. The State argues that since having his conviction set aside, the Grievant has failed to apply for any "permanent" position. The State asserts that the Grievant "seems to like his new job better . . . he gets to drive around town."
Position of the Union
The Union argues three (3) main points:
1) The State's decision to terminate the Grievant was arbitrary and not made in good faith;
2) The State could have allowed the Grievant to work in some capacity until he was able to get his conviction overturned;
3) Now that his conviction has been set aside, the Arbitrator should reinstate the Grievant to his former position and make him whole.
The Union argues that the Department has not dealt fairly with the Grievant. The Union contends that the Department knew that the Grievant would likely get his conviction set aside and that he should have been kept on the job until the Grievant's petition was ruled upon by the Court. As evidence of the unfairness of the procedure used, the Union asserts that the Grievant was never allowed an opportunity to meet with the Director, despite making several requests to do so.
The Union disputes the State's assertion that it had no choice but to terminate the Grievant. The Union asserts that there are many jobs that Corrections Corporals perform on a day-to-day basis that do not require them to handle firearms. The Union also argues that the Grievant had no need to "touch a weapon until November," when he would undergo his annual requalification. Given this, the Union insists that the Department should have allowed the Grievant to retain his employment until he had an opportunity to get his conviction set aside. The Union contends that the Department's failure to do so, even though it was expected to occur in just a few weeks, and was "likely to be successful," is unfair and a violation of the CBA.
The Union acknowledges that Nebraska Statute 29-2264 does not automatically entitle an employee to reclaim his or her lost job. The Union notes however that it does not prohibit an employer from voluntarily reappointing an employee whose conviction was overturned. The Union also argues that there is nothing in 29-2264 to prohibit an arbitrator from restoring employment if required to do so under a collective bargaining agreement.
Discussion & Opinion
At the outset, the Arbitrator must note that this is not a typical termination case; it arises neither from a layoff nor a disciplinary action. The Grievant did not lose his job because he violated a work rule or policy; he did not fail to report or perform his job up to standard; he was not insubordinate. The Grievant lost his employment with the DCS because of a change in federal law, not because of any work related problem. As such, the analysis of whether the Department's decision to terminate the Grievant's employment should be upheld or whether it should be overturned and whether the Grievant is entitled to any relief differs somewhat from an ordinary disciplinary discharge case. Under both Article 3 and Article 10, "just cause" is required to discipline an employee. However, the instant grievance does not arise in the context of a disciplinary action. Thus, the proper standard of review is "whether the Agency's action was taken in good faith and for cause," as specified in Article 4.
The first step in this process is to answer the following question: did the DCS have cause to discharge the Grievant? The Union argues that cause did not exist. The Arbitrator disagrees with this assessment. The amendments to the Gun Control Act are clear: if a person has been convicted of misdemeanor domestic violence he or she may not use a firearm on the job. There is no dispute that the Grievant was convicted of committing misdemeanor domestic violence against his wife. Since the law now prohibits domestic batterers from using firearms at work and the Grievant's job "behind the wall" required him to be qualified to use firearms, and at any moment could require that he actually possess and use them, the Department had no choice but to remove him from his position.
Of course, the process an employer uses when deciding whether to discharge an employee is absolutely critical to an arbitrator's determination of whether the action was legitimate. The wrong process can and frequently has caused employers' discharge decisions to be overturned by arbitrators. The next step is to examine whether or not the Grievant received due process before the Department reached its decision to take away his employment. It is the Arbitrator's determination that the process used by the Department was adequate.
To begin with, the procedure that the Department used for ascertaining whether any of its employees were affected by the Gun Control Act was fair: self reporting via a questionnaire. When the Department determined that one of its employees--the Grievant--had been convicted of domestic violence it did not rush to judgment and fire him on the spot. The Department notified the Grievant that his conviction was a significant problem that could put his job in jeopardy. The DCS arranged a meeting with the Department's Personnel Administrator to explore the problem and even suggested that the Grievant bring representation to that meeting. When the Grievant's representative failed to appear, the Personnel Administrator gave the Grievant the opportunity to reschedule the meeting. The Department also was open to the possibility of not taking any adverse action against the Grievant until he had a chance to get his conviction overturned. In fact, the Personnel Administrator made the following recommendation to the Director:
"After meeting with [the Grievant] and listening to his mitigation, I would recommend that we continue this hearing until he can work with his attorney toward some form of resolve with his case. I believe under the circumstance of the assault . . . that the judge may set aside this conviction. This would allow the Department to retain [the Grievant] as an employer. . . ."
It was only after the Director found out that the statute cited by the Grievant was no longer on the books that he decided to terminate the Grievant. These are not the actions of an agency rushing to judgment or just going through a pro forma process. Contrary to the Union's arguments, the decision to terminate the Grievant was not arbitrary.
It appears that the Grievant's decisions to go forward with his meeting with the Personnel Administrator without representation, and to rely on his memory, rather than photocopying the statute or writing down the correct citation, were some of the most momentous of his career. That is regrettable, for had he given the Department the correct citation it appears likely that he would have retained his employment.
Once he learned that the statute cited by the Grievant was no longer in effect, could the Director have given the Grievant an opportunity to provide the correct citation? Certainly! Did the contract require him to do so? No. In an ideal world, should he have? Perhaps so. But to expect the Director to try and determine whether one of his 1,500 employees had made a mistake in citing the law, or whether the Grievant was simply mistaken about the existence of the law, or whether, perhaps, the Grievant was attempting to "pull the wool over the Department's eyes," is unrealistic. The Grievant provided the citation and he should have made sure that it was correct; he knew that his job was on the line and either his attorney or another representative could have helped him keep the citation straight. In retrospect, he should have accepted the Personnel Administrator's offer to reschedule the meeting.
The Union has argued forcefully that the Department should have done more to help the Grievant keep his job. While the Arbitrator agrees that the Department could have done more, it was not obligated to do so. In the final analysis, the Grievant fell victim to his own actions: assaulting his wife; proceeding without representation in his meeting with the Department's Personnel Administrator; and, providing the Department with the incorrect statutory citation. It is not an arbitrator's job to save employees from their own bad decisions or their own ill-advised actions.
The Union's argument that the Department could have assigned the Grievant to work in some other capacity until he was able to get his conviction overturned has significant emotional appeal. After all, had the Department assigned the Grievant to a post where he did not have to carry a weapon at all times, he would have retained his job. However, the Arbitrator's decision as to whether the Department's actions were legitimate must be made on the basis of the Contract, not what might feel emotionally satisfying. And the Contract gives the Department broad discretion to determine the deployment of its staff.
The Union's contention that the Grievant would not have needed to utilize firearms for several months, and then only to "requalify," is singularly unpersuasive. At any moment of any day an incident could arise at the NSP requiring force of arms to quell. Were the Department to have kept the Grievant on the job and such an incident arose, the fact that the Grievant could not utilize firearms would have put the Grievant, other DCS employees, visitors, and possibly local residents in danger. While on one level, the Arbitrator might be tempted to say "the Department routinely assigns its staff to positions where they are not armed on a day-to-day basis," the fact remains that in the case of an emergency, even staff assigned to those unarmed positions may very well need to be equipped with firearms. If the Arbitrator were to rule that the Department should have "created" an unarmed position for the Grievant, until the disposition of his petition to set aside his conviction, the Arbitrator would be substituting his judgment as to the necessary number of security personnel who need to be available to be armed in the face of a disturbance for the judgment of people who are far more qualified than he to do so.
As it turns out, there were no disturbances that the Arbitrator is aware of that occurred at the NSP during the time of the Grievant's break in service. But, had the Department left the Grievant on the job, in a "firearms ineligible" position, to coin a phrase, and a disturbance had erupted, there would have been one fewer person available to quell the disturbance, possibly endangering the lives or safety of a host of individuals. Were the Grievant to have been given firearms in such an emergency situation (even though prohibited by law from possessing them) and something went terribly wrong, both the Grievant's and State's liability could be incomprehensible. The State would not have done the Grievant any favors by allowing him to continue working while ineligible to utilize firearms.
Of course, it is entirely possible that the Director could have been more creative in trying to find ways to have kept the Grievant on the job. Article 14.22 gives the Director broad discretion as to the granting of unpaid leaves of absence. Although the Grievant would have suffered a break in service, he would have been in a better position to reclaim his former job. However, there is nothing in the record to show that the Grievant requested such a leave or that, if requested, the Director improperly rejected the Grievant's request. The Arbitrator might have handled things differently but--bottom line--it is not necessary for the director to have acted in the way that the Arbitrator would have. Nor can the Arbitrator be certain that he would not have acted the same way had he seen in the Director's shoes at the time that the decision was made to discharge the Grievant. No. What is critical is whether the Department's actions were reasonable under the circumstances. In the instant matter, given the specificity of the federal law and the information at the Director's disposal at the time the termination decision was reached, they were.
Thus, for the reasons set forth above, the Arbitrator finds that the State had cause to terminate the Grievant's employment and that the termination decision was made in good faith. Normally, such a finding would put to rest the issue of remedy. However, as noted above, this is not a typical discharge case.
In way of remedy, the Union has sought: either reinstatement or placement into the layoff pool with bumping rights; back pay and benefits and the restoration of seniority; attorneys fees; and, other relief to make the Grievant whole.
The issues of back pay and benefits, and attorneys' fees can be dispensed with quickly; the Grievant is not entitled to any. The pay and benefits that he lost were the result of legitimate managerial actions taken pursuant to the requirement of federal law. To rule otherwise would be to emasculate the ability of management to take legitimate actions; that would not be to the long-term benefit of the parties' relationship.
The issue of placement into the layoff pool requires a little more analysis. Is this the type of situation that the parties envisioned when they negotiated Article 5 of the Contract? After a careful examination, the Arbitrator finds that it is not. The layoff provisions clearly set forth a process for layoffs that requires the creation of a "layoff plan," the holding of certain meetings between the parties, and the providing of specific notice to employees. None of the procedures for a layoff were followed in the Grievant's termination, so the Arbitrator can find no justifiable reason to utilize this contractual provision to give the Grievant bumping rights into a Corporal position. To place the Grievant into the layoff pool would require that the Arbitrator twist the plain language of the collective bargaining agreement into a form not envisioned by the parties when they negotiated it.
The Arbitrator is well aware that, "in the interest of justice and fairness," some arbitrators might use creative interpretation of the contractual layoff procedure to grant the Grievant bumping rights. However, such situations generally arise when a grievant is "a model employee and citizen" caught in circumstances beyond his or her control. Factors not present in the instant matter. By the Department's own admission, the Grievant has been a satisfactory employee. However, he is no choir boy. He has assaulted his wife, and defied the Lancaster County Court by failing to appear before it. Beyond this, his record as an employee is not squeaky clean. It must be emphasized that while on the job, the Grievant exercises complete control over inmates of the NSP. This total control must be exercised with due care and good judgment. The Grievant has shown some lack of judgment while on the job, as evidenced by his disciplinary history, and horrendous lack of judgment while off duty, as evidenced by his assault on his then wife. While the Arbitrator regrets that the Grievant had to lose his job, he can find no possible justification for engaging in the "logical gymnastics" necessary to interpret the CBA in such a way as to be able to grant the Grievant his requested bumping rights. To do so might benefit the Grievant but it would not do justice to the parties' Contract.
The question of seniority is also quite straight forward: the grievant is not eligible for any accumulation for the time that he was not working for the Department. Since he has returned to work in his new capacity, the Grievant is once again accruing seniority. The calculation or "Agency Seniority" and "Classification Seniority" is straight forward enough to require no comment from the Arbitrator. The calculation of "State Seniority" and the "State Service Anniversary Date" is also straight forward. The time between the Grievant's discharge and his rehire constitutes a break in service. However, since the break was for less than one year, all that is required is to re-calculate the State Service Anniversary date according to the procedure set forth in M.8.8. The Arbitrator will leave that calculation to the parties.
As to the issue of other possible relief, since the Grievant was not subject to a disciplinary discharge, it is appropriate that his termination not be used against him in future disciplinary actions. Of course, Nebraska Statute 29-2264 envisions situations where it would be appropriate to consider an offender's crime even where it has been set aside. It would, therefore, not be inappropriate for evidence concerning the Grievant's past history of assault to be brought up in future disciplinary proceedings where the Grievant is accused of using inappropriate physical force or threatening to do so.
One issue remains, now that the Grievant's conviction has been set aside, is he entitled to receive firearms or ammunition? The answer is yes. On this point, both parties and the Arbitrator agree. Beyond this initial analysis, what are the Grievant's obligations should be ever receive another questionnaire like the one that initiated his present difficulties? Clearly, since the Lancaster County Court set aside the Grievant's conviction, and the Gun Control Act states that "[a] person shall not be considered to have been convicted of such an offense. . . if the conviction has been set aside. . . ," the grievant can truthfully state that he has never been convicted of misdemeanor domestic violence, to the extent that his statement relates to his conviction on November 7, 1994.
AWARD
Accordingly, the undersigned Arbitrator, designated by the State of Nebraska, Department of Administrative Services having received and considered all arguments, evidence, and statements offered by the parties, even if not set forth or discussed above, issues the following award:
1) The Department of Correctional Services is ordered to remove from the Grievant's personnel file any references to the Grievant's termination on March 10, 1997 as having been made for disciplinary reasons;
2) The Department of Correctional Services is ordered not to use the Grievant's November 7, 1994 conviction for domestic violence, nor his termination on March 10, 1997, against him in any future disciplinary procedure, except in such cases where the Grievant is accused of using inappropriate physical force or threatening to do so;
3) In all other respects, the Grievance is denied.
[ End ]