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intervention in the incident suspicious,
considering the fact that the grievant’s duties
were custodial in nature and did not include
patient care responsibilities. 788
The Arbitrator found no evidence to support
the Union’s position, that the grievant’s
disclosure of her investigation’s findings to
the complainant was pursuant to past
practice. However, he determined that the
grievant had no concrete knowledge of the
impropriety of discussing her probable cause
findings with the complainant. The
Arbitrator noted that the grievant revealed
her findings to the complainant at the time the
individual inquired about the findings, and as
an EEO Investigator, had a duty to answer
the complainant’s questions honestly.
Therefore, the Arbitrator found that the
grievant did not exercise poor judgment in
informing the grievant of her findings, or that
the department changed those findings. The
Arbitrator, however, stated that the
grievant’s act of telling the complainant to
“not let it go” crossed the line from
information to encouragement. This act
constituted poor judgment. Though the
grievant seemed confused about the definition
of probable cause, the Arbitrator found that
more than likely the grievant had at least been
exposed to the department’s definition of the
term several times during her tenure as an
EEO Investigator. The arbitrator found that
the grievant’s confusion was, in part, the fault
of management because it could not
definitively prove that the grievant received
training in the department’s definition of
probable cause.Although the Arbitrator
found that the grievant engaged in
misconduct and some form of discipline was
warranted, removal was not appropriate in
this case. He stated that removal was
unreasonable, but only slightly so. 790
The grievant was removed for excessive
absenteeism. The arbitrator stated that the
grievant’s absenteeism was extraordinary as was
management’s failure to discipline the grievant
concerning her repetitive absenteeism. The
arbitrator found that the fact that the grievant
used all of her paid leave and failed to apply for
leave without pay, shielded management form
the consequences of its laxness. It was
determined that through Article 5, management
has clear authority to remove the grievant for just
cause even though her absenteeism was not due
to misconduct if it was excessive. The arbitrator
found that the grievant’s numerous absences
coupled with the fact that she did not file for
workers’ compensation until after termination,
and never applied for unpaid leave, supported
management’s decision to remove her. 791
The Arbitrator was convinced that the Patrol had
pre-determined that the grievant was to be
removed and the Patrol merely went through the
formality of a hearing. However, the Arbitrator
stated that this error was not a fatal flaw in the
case. By the time the Arbitrator heard this case,
the applicant had mastered the English language
enough to testify for herself. The Arbitrator
heard from the applicant directly and found her
testimony credible. The Arbitrator stated that the
testimony of her friends corroborated her
testimony. The Arbitrator noted that the loud
talking that the lead worker heard but could not
understand; coupled with nonverbal behavior she
observed, fit the pattern of a sexual abuse victim
reluctant to come forward and the outrage of
friends. The Union stated that the Patrol
deliberately skewed the investigation against a
good employee; however, the Arbitrator noted
that the Union did not suggest motive for the
allegation. The Arbitrator did not give the
applicant’s polygraph test any weight. The
Arbitrator found that the evidence presented
clearly proved that the grievant had abused his
position and that removal was justified.
However, because the Patrol violated Article
24.05 in its decision to terminate the grievant
before the pre-disciplinary hearing, the
grievant’s removal date was changed to the date
on which written closings were received and the
record of the hearing was closed. The grievant
was awarded back pay and benefits for the
period from his premature removal date up to the
new removal date. 792
The grievant was charged with inappropriate
contact with a co-worker. The arbitrator found
no evidence to suggest that the grievant’s
removal was arbitrary or inconsistent. The
grievant admitted that he was previously warned
not to touch his co-worker but he did it anyway.
The arbitrator upheld the removal based upon
that violation alone and did not address any other
charges.793
The evidence clearly showed that the grievant
was scheduled for a medical/psychological
examination. The examination was discussed
and the EAP forms were completed at the