DECISION AND AWARD

                        The above-referenced matter came on for hearing before this Arbitrator on May 23, 24 and 25 of 2005 and June 2 and 7 of 2005. (See transcript of proceedings, hereinafter sometimes referred to as “Tr” or by the witness’s last name followed by the transcript page number).  Both parties were zealously and competently represented by counsel at the arbitration hearing. The United Public Workers, AFSCME, Local 646, AFL-CIO, (hereinafter sometimes referred to as AUnion@) and Sergeant Gordon Leslie (hereinafter sometimes referred to as “Grievant”) were represented by STANFORD MASUI, ESQ.  The State of Hawaii,  Department of Public Safety (hereinafter sometimes referred to as AEmployer@), was represented by Deputy Attorney General MARIA C. COOK. Testimony from fifteen (15) witnesses was received at the arbitration hearing. The Union introduced nineteen (19) exhibits into evidence, 18 of which were received into evidence. The Employer introduced sixteen (16) exhibits into evidence, all of which were received into evidence. In addition, the parties introduced a total of three (3) joint exhibits into evidence. Full opportunity was given to the parties to present evidence, examine and cross-examine witnesses and to present oral argument. The parties agreed that they would submit their post hearing briefs on or before August 15, 2005. They also agreed that this Arbitrator=s decision would be due on or before September 28, 2005.

                        This Arbitrator has reviewed the testimony and evidence presented during  the Arbitration hearing on this matter as well as reviewed the extremely well-written and convincing briefs submitted by counsel on behalf of their clients. Several arguments have been made by Counsel. As a general rule, this Arbitrator will address only those facts and issues that are relevant to this decision and will not comment on matters that he believes are irrelevant, superfluous, redundant, or rendered moot by this decision.

                        I.  CONCISE STATEMENT OF EMPLOYER=S POSITION.

                        The Employer maintains that it has not violated the Collective Bargaining Agreement (hereinafter sometimes referred to as ACBA@) by suspending Grievant for 10 days. The Employer further maintains that the 10 day suspension is consistent with the “just and proper cause” prerequisite to disciplinary action.

                        II. CONCISE STATEMENT OF UNION=S POSITION.

                        The Union asserts on behalf of the Grievant that the Employer has violated the CBA by suspending Grievant for 10 days. The Union also asserts that the Grievant’s actions are justified by “past practice,” “lax enforcement of rules,” and the Employer’s failure to consult with the Union concerning its contraband policy. The Union further asserts that the suspension be set aside, that Grievant be made whole, that the Employer remove all related documents and notes from all personnel and employment files of the Grievant, and that the Employer comply with Sections 11, 14, and 58 of the CBA.

                        III. STIPULATED ISSUES.

                        Shortly before the beginning of this Arbitration hearing, this Arbitrator, this Arbitrator read into the record the stipulations and agreements of the parties as set forth in his letter to counsel for the respective parties, dated April 8, 2004. They are set forth below as follows:

                        1. The parties stipulated that prior steps to the grievance process have been met or waived;

                        2. The parties stipulated that the issues set forth below are arbitrable before this arbitrator:

                        a. Whether the Department of Public Safety, State of Hawaii (Employer) violated, misapplied, or misinterpreted the terms of the Unit 10 Collective Bargaining Agreement; specifically, sections 11, 14 and 58 when it suspended Grievant for 10 days?

                        b. If so, what are the appropriate remedies?

                        3.    The Employer shall have the burden of proof.

                        Joint Exhibit 2.

IV.            THE FACTUAL BASIS FOR THE EMPLOYER’S DISCIPLINARY ACTION.

                        The factual basis for the charges against Grievant are set forth in Employer’s Exhibit 3, a suspension letter to Grievant from Director John Peyton, Jr, dated July 2, 2004. The factual basis is as follows:

                        On April 1, 2004, you were the Module 3 Sergeant (supervisor) for the Second Watch. You as the supervisor knowingly allowed your subordinate staff to possess and utilize contraband items in the housing unit, which is contrary to departmental policies and rules. You allowed your subordinate staff to bring in excess items to cook in the housing unit with contraband items such as a hot plate and a pan.

                        V. RELEVANT CONTRACTUAL PROVISIONS.         

                        Joint Exhibit 1 was received into evidence as the CBA between the Employer and the Union. Section 11 of the CBA concerns discipline. It provides in relevant part as follows:

           

            11.01a   A regular Employee shall be subject to discipline by the Employer for  just and proper cause.

            11.01b  An Employee who is disciplined, and the Union, shall be furnished the    specific reason(s) for the discipline in writing on or before the effective date of the discipline except where the discipline is in the form of an oral warning or reprimand. However, if the oral warning or reprimand is documented or recorded for future use by the Employer to determine future discipline the Employee who is disciplined shall be furnished the specific reason(s) for the oral warning or reprimand in writing.

             11.01c  When an Employee is orally warned or reprimanded for disciplinary purposes, it shall be done discreetly to avoid embarrassment to the                                employee.

                        Section 14 concerns prior rights, benefits, and perquisites of the CBA. It provides in relevant part as follows:

                        14.01   Nothing in this Agreement shall be construed as abridging, amending or   waiving any rights, benefits or perquisites presently covered by the constitutions, statutes, or rules and regulations that Employees have enjoyed heretofore, except as expressly superseded by this Agreement.

Lastly, Section 58 concerns the Employee’s Bill of Rights. It provides in relevant

part as follows:

           

            58.01  STATEMENT.          

No Employee shall be required to sign a statement of complaint filed against the Employee.

            58.02  INVESTIGATION. 

            58.02 a.  If the Employer pursues an investigation based on a complaint, the Employee shall be advised of the seriousness of the complaint.

            58.02 b.  The Employee will be informed of the complaint, and will be afforded an opportunity to respond and/or refute the complaint.

            58.03    When investigating complaints against Employees by patients, inmates and residents, weight shall be given to the mitigating circumstances, including the difficulties or working with some types of patients, inmates and residents.

            58.04    Before making a final decision, the Employer shall review and consider all available evidence, data, and factors supporting the employee, whether or not the Employee provides facts in defense of the complaint.

            58.05   In the event the complaint is not substantiated or the Employee is not disciplined, the complaint and all relevant information shall be destroyed, provided that the Employer may retain a summary of such information outside of the official personnel file whenever such complaint may result in future liability to the Employer, including but not limited to, discrimination complaints. 

VI.  RELEVANT PORTIONS OF THE STANDARDS OF CONDUCT.

                        The cover page of the Standards of Conduct provides as follows:

Pursuant to the authority vested in the Director, Department of Corrections, and his designated subordinates, by Hawaii Revised Statutes, Section 26-38, the following Standards of Conduct are published for the control, disposition, and government of the employees of the Department of Corrections.

                        These Standards of Conduct are effective August 1, 1988.

All previously enacted rules or policies which apply to the control, disposition, and government of the employees of the Department of Corrections, and which are in conflict with the provisions of these standards, are hereby rescinded. This action does not apply to the “Inmate Handbook” published under Title 17, Administrative Rules of the Corrections Division.

                        Article III of the Standards of Conduct is entitled “Conduct.” Section I provides as follows:

A.   Disciplinary action for violations contained in Section II of this Article shall be determined by the Director of Department of Corrections and/or the Administrators.

B.   Disciplinary action for violations contained in Section III of this Article  shall be subject to progressive discipline, except where the severity of  a single violation may warrant immediate discharge. Disciplinary  action(s) shall be taken pursuant to the applicable sections of the  bargaining unit agreements.

                        Grievant was alleged to have violated several provisions of the Standards of Conduct. These provisions are set forth as follows:

                        Article III Section II Professional Conduct and Responsibilities, C. Cooperation – Cooperation between employees and elements of the Department is essential for effective correctional attainment. Therefore, all employees are strictly charged with establishing and maintaining a high level of cooperation.

                        Article III Section II Professional Conduct and Responsibilities, E7.  General Responsibilities - Correctional employees shall at all times take appropriate action to identify potentially dangerous and/or serious security situations or problems.

                        Article III Section II Professional Conduct and Responsibilities, E10 General Responsibilities – Correctional employees shall at all times take appropriate action to enforce all Federal and statutory law violations as well as departmental and branch Rules, Directives, Policies and Procedures, and these Standards of Conduct and report any violations thereof.

                        Article III Section II Professional Conduct and Responsibilities, G Knowledge of Law and Regulations – Correctional employees are expected to know those Statutes of the State of Hawaii, Administrative Rules, Standards of Conduct, and Policies and Procedures of the Department which are applicable to their functions as correctional employees. In the event of improper actions or breaches of discipline, it will be presumed that the employee was familiar with the law, rule, or policy in question. They shall seek information through superiors or fellow employees on matters which they have questions or doubts.

                        Article III Section II Professional Conduct and Responsibilities, H Performance of Duty – Corrections Officers and employees shall perform their duties as required or directed by law, departmental rules or policies, or by order of a supervisor. All lawful duties required by competent authority shall be performed promptly as directed, notwithstanding the general assignment of duties and responsibilities.

                        Article III Section II Professional Conduct and Responsibilities, I Obedience to Laws and Regulations – Corrections Officers and employees shall observe and obey all laws, Administrative Rules, Policies and Procedures, and Standards of Conduct of the Department.

                        Article III Section III Rules C Class Rules C4 Conduct Towards Superiors, Subordinates, and Associates – Employees shall treat superiors, subordinates, associates with respect. They shall not be insubordinate to superiors or supervisors. ^[1]

VII. BACKGROUND

            Clayton Frank (hereinafter sometimes referred to was “Warden Frank”) was transferred to the Halawa Correctional Facility (hereinafter sometimes referred to as “HCF”) and became the Warden of said facility on April 23, 2003. Frank at 43. Prior to this transfer, Warden Frank served as Warden at the Oahu Community Correctional Center beginning in June of 1999. Frank at 44. Prior to being Warden at the Oahu Community Correctional Center, he served as the Institutions Division Administrator for the Department of Public Safety. In this capacity, he was in charge of all eight correctional facilities for the State of Hawaii. Id.           

            HCF serves as a maximum security prison for “long term” sentenced felons and inmates who are deemed “dangerous.”  Warden Frank was transferred to HCF after the escape from said facility by three felony inmates (hereinafter sometimes referred to as the “Bartalona Escape”). Frank at 48. One of the reasons Warden Frank was transferred to HCF was to investigate security breaches that occurred because of the Bartalona Escape, to determine if policies and procedures were being followed or needed to be updated, if security measures needed to be updated, and if officers and staff were being complacent in their responsibilities and following polices and procedures. Id.

            After Warden Frank was transferred, he was advised that a correctional officer (ACO Moisa) and an attorney (Steven Leong) were involved in the promotion and introduction of contraband into HCF (hereinafter sometimes referred to as the “Moisa Contraband Incident”).  Frank at 48-49. Moisa initially  brought in small items such as meals from Burger King and McDonalds. Id. The contraband escalated to shorts and later to escalated to drugs. Id. Warden Frank, in part because of the Moisa Contraband Incident, the Bartalona Escape, and the issue of contraband, ordered a “total shakedown” at HCF in early May 2003. Frank at 50.

                        On February 2, 2003 and February 16, 2003, Warden Frank personally met with Grievant to discuss issues concerning “Post Orders, Staff Investigations and Contraband Issues.” Each meeting last approximately 15 minutes. Union’s Exhibits 6-6 and 11-1. However, the evidence does not indicate which contraband issues were discussed.

            On May 15, 2003 Warden Frank also held a meeting for 2^nd Shift Lieutenants/Sergeants/Chief of Security. This meeting lasted for approximately one hour. At this meeting, Warden Frank again discussed security and contraband issues. Grievant was present at work on the day that this meeting was held. Union’s Exhibits 6-6 and 11-1. The nature and extent of the discussion on contraband issues is not clear from the record.

            Warden Frank, in August of 2003 directed Captain Paleka to do a walk-through of HCF for the purpose of confiscating items that were considered contraband. Captain Paleka testified that he did not see any hot plate during his inspection of module 3. Frank at 33 and Paleka at 346.

            On February 12, 2004 and February 13, 2004  meetings for ACOs, Sergeants, and Lieutenants were held to discuss report writing, contraband, inmate/staff investigations, post orders, policy and procedures, and open floor discussion. Each meeting lasted approximately 1 hour. Union’s Exhibit 6-7. Topics of discussion included the prohibition against cooking and hot plates. Frank at 902; Paleka at 339-340. Grievant was assigned to the second watch. Frank at 903-904. Captain Dallen Paleka testified that Grievant was at one of the briefings in early February of 2004 and should have known that a hot plate was considered contraband since Grievant asked a question about cooking. Paleka at 339-340. Employer’s Exhibit 16, Grievant’s attendance record for 2004 indicates that Grievant was present at work on both of these days.

                        On May 19, 2004 Warden Frank issued Employer’s Exhibit 11 in an attempt to curb contraband. Employer’s Exhibit 11 provides as follows:

                                    May 19, 2003

            TO:                  ALL CONCERNED

            FROM:           Clayton Frank, HFW 

            SUBJECT:     DIRECTIVE ON CONTRABAND & SEARCHES

To insure that the safety, security, and good government of Halawa Correctional Facility is being maintained, the following directive affecting staff, inmates, and visitors regarding contraband and searches is to be adhered to:

            CONTRABAND is anything not authorized for possession or introduction into the Facility without the authorization of the Warden or his designee.   All staff, inmates and visitors are subject to SEARCHES based on reasonably suspicion, probable cause, or as part of the daily routine to pat search inmates when applicable.

cc: DW-A,DW-T, COS, WATCH COMMANDERS, PCA, BOM, FOA, HEALTH CARE, FSU, SNF-BUILDING CONTROL, SCREENING DESK, GATE HOUSES, (SNF/HMSF), BULLETIN BOARDS.  Warden Frank subsequently issued another directive on July 17, 2003 concerning contraband.  Employer’s Exhibit 5 at 65-66. The memo (hereinafter sometimes referred to as the “CONTRABAND MEMO,” provides as follows:

                                    July 17, 2003

            TO:                  ALL CONCERNED

            FROM:           Clayton Frank, HFW

            SUBJECT:     AUTHORIZED/UNAUTORIZED ITEMS INTO A SECURED AREA

            Effective August 1, 2003 the following items are not allowed into a secured   

            area, but not limited to being defined as contraband.

1.    Cellular phones and cellular batteries.

2.    Brief cases or attaché cases larger than 18”x13”x4”

3.    Thermos jugs in excess of ½ gallons, ice chests, and other containers.

4.    Excessive food and snack items (more than enough for individual consumption).

5.     Food or drink items for anyone but self.

6.     Personal computers or computer paraphernalia.

7.     Cameras and camera attachements. (digital, video etc.)

8.     Backpacks, flight bags, carryalls, exercise bags, and/or similar bags except:

The following items are allowed into a secured area:

1.      Female purses and male clutches (including “fanny packs”) are authorized, but must be stored at the work area and shall be subject to search upon entry and exit.

2.      Case manager/UTM’s utilizing backpack style bags on wheels going to and from assigned work area. These bags shall be subject to search upon entry and exit.

            Secured areas is hereby designated as the following at the:

                        Special Needs Facility – Entering through E-1 Door. (door from lobby outside of Building Control).

 

            Medium Security – Entering onto Main Street from the Mainstreet  Door.

These doors are designated as the official entrance and exit from the Medium and Special Needs Facility. Any other areas used to enter or exit the facility must be approved by the Warden.

Contraband is defined as any item not authorized by the facility Warden.

Failure to comply with this memo may result in disciplinary action with just and proper cause.

Recived:    _________________              Date. _______________
                    Employee Signature

Witnessed:  _______________                Date. _______________
                     Signature

Grievant refused to sign for receipt of this memo on July 18, 2003. ^[2]

                        Grievant was at all relevant times mentioned a Sergeant (supervisor) at HCF assigned to the Module 3 housing unit. He supervised several adult corrections officers (hereinafter sometimes referred to as “ACOs”), including ACOs Dawn Smith and Thomas Hawn.

                        Warden Frank and Chief of Security Major May Andrade (the latter sometimes referred to as “Major Andrade”) while conducting a walk-through (hereinafter sometimes referred to as the “First Hot Plate Incident”) of HCF sometime in late January or early February of 2004 observed a staff member or  an inmate cooking with a hot plate in Module 3. Frank at 60; Andrade at 667-68. Grievant was admonished and warned to get rid of the hot plate.  Andrade at 669. A hot plate is considered contraband. Andrade at 670.  It is unclear from the testimony of Major Andrade if she informed Grievant that the hot plate was contraband although she testified that a hot plate was contraband. Andrade at 669-670. However, it is clear that Major Andrade gave Grievant a “last warning” by stating that there would be “no more warnings” to get rid of the hot plate. Andrade at 670. For a full discussion of the First Hot Plate Incident, please refer herein to Section XII.E, PROOF.

                        Later that same day in late January or early February of 2004, Grievant went to Warden Frank’s office. Grievant was again was admonished and instructed to get rid of the hot plate as it was contraband. Frank at 62-63; 81-82. Warden Frank specifically informed the Grievant that the hot plate was contraband and that Grievant was to ensure that his subordinates did not use the hot plate.  For a full discussion of this incident, please refer herein to Section XII.E, PROOF.

                        On July 1, 2004, Warden Frank conducted another walk-through of HCF (sometimes referred to herein as the “Second Hot Plate Incident”). Frank at 70-71. When Warden Frank approached Module 3A he smelled food cooking. Frank at 71. As Warden Frank entered Module 3A, he noticed ACO Hawn and two inmates. Frank at 72-74. They evidently were cooking again in the same location that cooking had occurred during the First Hot Plate Incident. Frank at 72. Grievant was again admonished by Warden Frank. Warden Frank informed Grievant that Grievant needed to submit a report concerning the incident and that Grievant needed to take care of the cooking issue. Id. Warden Frank then exited Grievant’s office. Id.  For a full discussion of the Second Hot Plate Incident, please refer to Section XII.E, PROOF.

                        Grievant submitted a report (sometimes hereinafter referred to as the “Last Supper Memo”) as directed by Warden Frank. Employer’s Exhibit 14-24. Grievant testified that he was not trying to be insubordinate by writing the Last Supper Memo. Leslie at 772.  As per Grievant, the reference to “THE LAST SUPPER” was in reference to the meal that became the subject of this grievance being their  “Last Supper” in the module. Leslie at 771. The memo provides as follows:

                                    Thursday, April 01, 2004

                        TO:                  Warden Frank

                        FROM:           Gordon Leslie, Sergeant Module 3

                        SUBJECT:     THE LAST SUPPER

In light of the States financial restraints that places a burden directly to HCF food service department, unbeknownst, individual assigned provided a meal supplement enriched with vitamins and nutrient. I believe the items were hand carried in and within the allotted limits per memorandum. These officers would not bring excessive and or unauthorized items. As their supervisor they will be instruct to be more informative. We apologize if we offended anyone or breached the security of this facility.

                        Again, we humbly apologize and submitted this for your information.

                        The Last Supper Memo was rewritten by Grievant after he was informed by Captain Paleka and Major Andrade that the memo did not reflect what had occurred. Leslie at 772-773. Grievant thereafter submitted another memo which was introduced into evidence as Employer’s Exhibit 5-58. It provides as follows:

                       hursday, April 01, 2004

                        TO:                  Warden Frank

                        FROM:           Gordon Leslie, Sergeant Module 3

                        SUBJECT:     COOKING

                        On the above-mentioned date at approximately 0730 hours staff assigned to Module 3 was conducting the above subject. Officers apparently brought in food and decided to reheat the items. We/they did not intend to be disrespectful or insubordinate. As their supervisor I will instruct them to be more informative. I apologize for our action and will not let this happen again.  Again, we humbly apologize and submitted this for your information.

                        On June 2, 2004 Grievant received a “Notice of Pre-Disciplinary Due Process Hearing” from Shelly Nobriega, Hearings Officer. Employer’s Exhibit  4. It is significant to note that Employees at HCF are expected to adhere to the “Standards of Conduct.” Frank at 46 and Employer’s Exhibits 3, 4, and 7.

                        On July 2, 2004, the Employer suspended Grievant for ten working days for violating certain provisions of the Standards of Conduct (please see Section VI above, Relevant Portions of Standard of Conduct for the specific provisions). The letter of suspension sets forth the following factual findings against Grievant:  On April 1, 2004, you were the Module 3 Sergeant (supervisor) for the Second Watch. You as the supervisor knowingly allowed your subordinate Staff to possess and utilize contraband items in the housing unit, which is contrary to departmental/facility policies and rules. You allowed your subordinate staff to bring in excess food items to cook in the housing unit with contraband items such as a hot plate and a pan.

Employer’s Exhibit 3.

                        On August 13, 2004 Grievant submitted to the Employer a Step 1 grievance.  Employer’s Exhibit 1.  The grievance alleged that sections 11, 14, and 58 of the CBA were violated. The step 1 grievance provides in relevant part as follows:

3.    Nature of Complaint: (Date, facts, circumstances, etc.)

This grievance is being filed on behalf of Adult Corrections Officer IV Gordon Leslie employed with the State of Hawaii, Department of Public Safety, at the Halawa Correctional Facility.  Via letter dated June 2, 2004, received on June 9, 2004, Leslie was being suspended ten (10) working days effective July 19, 2004 to and including July 30, 2004. Leslie was being suspended for violations of the Standards of Conduct. Specifically as the Supervisor, knowingly allowing subordinate staff members to possess and utilize contraband items in the housing unit. For also allowing staff to bring in excess food items to work in the housing unit with contraband items such as a hot plate and pan.  The Employer has violated Section 11, 14, and 58 of the Collective Bargaining Agreement by failing to have just and proper cause when they suspended Leslie.

            b. REMEDY SOUGHT:

The Employer shall rescind the suspension of Mr. Leslie, make him whole, remove all related documents and notes from all personnel and employment files, and comply with the above-cited sections of the contract.

                        On November 1, 2004, Mr. John F. Peyton, Jr. advised the Union that the Employer was respectfully denying the grievance of Grievant. Employer’s Exhibit 2. The matter was subsequently set for hearing before this Arbitrator.

                        It is significant to note that despite the above-factual findings as well as disciplinary action being taken by the Employer against Grievant, contraband, including hot plates, continues to be an ongoing problem. On April 26, 2005 another shakedown of HCF was ordered by Warden Frank. Among the items confiscated were a box of cooking utensils, a box containing three cooking stoves – (1-burner stove; 2- burner stove, hot plate), frying pans, pots, miscellaneous cooking oil. See Joint Exhibit 3, items confiscated in Module 4, shakedown of April 25, 2005 at 0830 hours. Official orders, directives, memorandums, and briefings, with full notice of possible disciplinary action have not stopped the introduction of contraband into HCF.  “Contraband has been an ongoing problem and they will only be able to minimize it.” Kiaaina at 559.

VIII.     THE GRIEVANT

                        In 1985, ACO IV Sergeant Leslie began his career with the Public Safety Department as an emergency hire. (Union Exhibit 1). He was born and raised in Honolulu and graduated from Kaimuki High School in 1982. Following a career in the hospitality industry (kitchen steward, host) he began his Corrections career, and has been employed continuously to the present time, approximately 23 years, as an Adult Corrections Officer at HCF. Leslie at 764-76.

                        Grievant’s evaluations have generally been satisfactory or above, and his peers and co-workers have attested to his abilities and good performance of duty.  Grievant has “met expectations”, Brown at 172-173, was “a good sergeant” Paleka at 362, “diligent” and “outstanding,” Kiaaina at 548, one of the better working sergeants at HCF, Amaral at 502.

                        Grievant received notice that he was promoted to Lieutenant on May 23, 2005, the first day of this Arbitration hearing. Leslie at 764. In order to become a Lieutenant, Grievant had to have a certain number of years in a supervisory capacity such as a sergeant, take a written test consisting of 133 questions and pass an oral interview. Leslie at 764.

                        IX.       THE WORKPLACE – HALAWA CORRECTIONAL FACILITY

                        Halawa Correctional Facility (hereinafter sometimes referred to as “HCF”) serves as a long-term prison for sentenced felons and for inmates formerly at other facilities who are deemed “dangerous.” Frank at 45. The primary function of HCF is to hold long-term felons. Frank at 45-46. One of the basic covenants at HCF is security concerning felons. Frank at 47. This includes the safety, protection, and security of inmates, staff, and the general public that HCF is entrusted to serve. Id. An important component of that covenant is to restrict the entry of contraband into HCF. Id.

                        The correctional officers at HCF are expected to adhere to the Standards of Conduct, policies, procedures, and directives from the office of the Warden, the Chief of Security, and the institution division administrator. Frank at 46. The Standards of Conduct were generated by Director Harold Falk for the Department of Corrections. Id. It has been given to all employees to whom the Standards of Conduct apply. Id.

                        As of May 20, 2005 there were 1,239 inmates at HCF and 321 staff positions at HCF. Id. Approximately 309 of the staff positions have been filled. Id.

                        At the medium facility there are four modules. Frank at 68.  Module 3 is located in the medium facility. Id. There are approximately 200 plus inmates in module 3. Id. A module is a secured living area where inmates who are in the care and custody of HCF live. Frank at 67; Amaral at 490-491.

                        Staff members are entitled to a meal. Frank at 66. Staff can cook in the housing modules using a microwave, toaster, and coffee maker. Id. They cannot cook in the housing modules using contraband items such as a hot plate or pan. Staff can also eat at the staff dining area and the inmate dining hall. Id. The inmate dining hall is directly across from the housing units. Frank at 67.

T                        he chain of command at HCF is similar to a para military command. Within the command are ACOs. Andrade at 654. An ACO is a recruit. Id.  After a year ACOs are reallocated to the rank of ACO III. Id. Next is ACO IV which are supervisors who are referred to as sergeants. Id. An ACO V holds the rank of Lieutenant. Id. As ACO VI holds the rank of Captain. Id. Last is the Chief of Security, who is considered an ACO VII. Id. The top person is the Warden. Id.

            X.        CONTRABAND POLICY

                        The Employer has a right to supervise its employees and keep contraband outside of HCF. The HCF contraband policy is set forth in part in the CONTRABAND MEMO. The several reasons for this policy are set forth in the testimony of the witnesses. The primary reasons given were to prevent fires, to protect staff and inmates, to comply with Fire Department concerns, to prevent escapes, and to prevent situations such as the Bartalona Escape and the Moisa Incident. Hot plates have always been considered contraband and they have never been approved by Warden Frank, Warden Frank’s predecessor Warden Nolan Espinda, nor  deputy Wardens Eric Tanaka or Randy Asher. Frank at 62-63.

                        Captain Dallen Paleka has been employed at HCF for 17 years. Paleka at 323. He testified that hot plates are considered contraband. Paleka at 333; 336. Captain Paleka further testified that when he first started at HCF, they had hot plates. Paleka at 336. However, Warden Nolan Espinda found out some guys had a hot plate and told them they were not supposed to be cooking and they should not have hot plates. Paleka at 336-337. Hot plates were clearly not allowed under Warden Nolan Espinda (Paleka at 344) and a hot plate cannot be used to reheat food. Paleka at 351-352.  Lt. Francis Hun (called as a witness for the Grievant) has worked at HCF for approximately 22 ½ years. Hun at 622. Lt. Hun testified that hot plates have never been authorized. Hun at 630.  Sergeant Kiaaina has worked for HCF for 17 years. Kiaaina at 504. Kiaaina supported Warden Frank’s testimony when he asserted that he does not believe any of the Wardens have authorized hot plates. Kiaaina at 560. Grievant himself acknowledged that hot plates were not permitted by Warden Frank or Warden Espinda. Leslie at 824. However, Grievant  did not agree that they were contraband because they were there before him. Id.  Leslie at 824. ACO Patrick Sonsona has been employed there since 1991 at HCF. Sonsona at 964. ACO Sonsona testified that cooking with hot plates is impermissible and done “behind doors.” Sonsona at 965.  Captains were not aware of the cooking. Sonsona at 966. Some Lieutenants knew. Id. Cooking was not announced because cooking was not permitted. Id. Cooking was done “clandestinely.”  Sonsona at 967. A hot plate was out of the question since they were a safety hazard and could start fires. Sonsona at 969.  In short, several witnesses testified that a hot plate was considered contraband. Not one witness testified that hot plates were not considered contraband.

                        The contraband policy also includes “excessive food items” (more than enough for  individual consumption). Please see Employer’s Exhibit 5 at 65-66 which is set forth above in full.

                        XI.       DID THE EMPLOYER VIOLATE SECTION 11 OF

              THE UNIT 1 COLLECTIVE BARGAINING AGREEMENT?

                        Section 11.01.a of the Unit 1 CBA provides that A[a] regular employee shall be subject to discipline by the Employer for just and proper cause.@ Joint Exhibit 1. The CBA contains no definition of Ajust and proper cause@ and, as a result, an Arbitrator is free to fashion his own definition of what constitutes Ajust and proper cause.@

                        The primary issue in the case before this Arbitrator is whether the Employer used the just and proper cause standard prior to taking disciplinary action against Grievant. If the Employer had just and proper cause, then the grievance will be denied. However, if the Employer failed to use the just and proper cause standard, then the grievance shall be sustained.

                        At a minimum, discharge and disciplinary actions by an employer have been reversed where basic notions of fairness and due process have not been met. AIndustrial due process@ is becoming a component of Ajust and proper cause.@ Arkansas Power & Light Co., 92 LA 144, 149-50 (Weisbrod, 1989) (grievant reinstated because employer violated employee=s due process rights by denying him union representation during investigatory interview) and Adrian College, 89 LA 857 LA 861 (Ellmann, 1987) (employer failed to make fair investigation).

                        Arbitrator Carroll Daugherty suggested using a set of guidelines, to be used in disciplinary proceedings, to determine whether an Arbitrator should, Asubstitute his judgment for that of the employer@ Elkouri and Elkouri, How Arbitration Works, page 884, 5^th Edition, (1987) as well as to determine whether an employer has met the test of just and proper cause. Arbitrator Daugherty established a standard that has been widely accepted since its inception. In Grief Bros. Cooperage Corp., 42 LA 557 (1965), and later in Enterprise Wire Co., 46 LA 359 (1966). This test on discipline has been embraced in Koven & Smith, Just Cause: The Seven Tests, 2d Ed., revised by Farwell (BNA Books, 1992). The test was first applied in Hawaii by Arbitrator Peter L. Trask in United Public Workers, AFSCME, Local 646, AFL-CIO and Governor George R. Ariyoshi State of Hawaii (Grievance of Gilbert Hicks) (1984); applied again by Arbitrator Trask in United Public Workers; AFSCME, Local 646, ALF-CIO and City and County of Honolulu, Department of Parks and Recreation (Grievance of John Feliciano) (1990); applied by Arbitrator Barclay Bryan in United Public Workers, AFSCME, Local 646, AFL-CIO, and State of Hawaii, Department of Education, Royal Elementary School  (Grievance of Manuel H. Pascua) (1995);  applied by Arbitrator Walter H. Ikeda in UPW v. County of Maui, Department of Public Works and Waste Management (Grievance of Johnny Ramoran) (1996); applied by Arbitrator Jim Nicholson in HGEA and State of Hawaii, Department of Education (Grievance of Crown Arnold) (1994), in United Public Workers, AFSCME, Local 646, AFL-CIO and State of Hawaii, Hawaii Health Systems Corporation, Hale Ho=ola Hamakua (Grievance of Ailene Parel) (2001), in United Public Workers, AFSCME, Local 646, AFL-CIO and State of Hawaii, Department of Public Safety, Halawa Correctional Facility (Grievance of Larry Moore) (2001); and in United Public Workers, AFSCME Local 645, of Public Workers, AFSCME, Local 646, ALF-CIO v. State of Hawaii, Department of Education, Maui School District, Lahainalua High School (Grievance of Francis Cosma, Jr.) (2002), applied by Arbitrator Russel T. Higa in United Public Workers, AFSCME Local 646, AFL-CIO and Department of Health, Adult Mental Health Division Hawaii, State Hospital (Grievance of Marvin H. L. Rowe) (2001); applied by Arbitrator Kerry M. Komatsubara in United Public Workers Union, AFSCME, Local 646, AFL-CIO, Unit 10 and State of Hawaii, Department of Human Resources, Hawaii Youth Correctional Facility Section 11A., 11 (Grievance of Valentin Luecuona) (2001);and applied by Arbitrator Michael F. Nauyokas in United Public Workers, AFSCME, Local 646, AFL-CIO and Hawaii Health Systems Corporation, Maluhia, (Grievance of Edgar Esperancilla) (2002).

                        The guidelines for this test consist of seven (7) criterial questions against which the Employer=s conduct is judged or measured. A single negative response to any of the seven criterial questions invalidates the Employer=s action, allowing the arbitrator to substitute his own judgment. These criterial questions include the following:

(1) NOTICE. Did the Employer give the Employee forewarning for or foreknowledge of the possible or probable disciplinary consequences of the Employee=s conduct?

(2) REASONABLE RULE AND ORDER. Was the Employer=s rule reasonably related to (a) the orderly, efficient, and safe operation of the Employer=s business and (b) performances that the Employer might expect of the Employee?

(3) INVESTIGATION. Did the Employer, before administering discipline to an Employee, make an effort to discover whether the Employee did in fact violate or discharge a rule or order of the Employer?

(4) FAIR INVESTIGATION. Was the Employer=s investigation conducted fairly and objectively?

(5) PROOF. Did the Employer obtain substantial evidence or proof that the Employee was guilty as charged?              

(6) EQUAL TREATMENT. Has the Employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

(7) PENALTY. Was the degree of discipline administered by the Employer in this case reasonably related to (a) the seriousness of the Employee’s proven offense and (b) the record of the Employee in his service with the Employer?