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meeting. The evidence also suggested that some
animosity existed between the grievant and
management would have welcomed an
opportunity to properly remove the grievant. The
arbitrator found the grievant’s questions
regarding the enrollment forms to be legitimate
and that no evidence was presented to indicate
that the grievant’s behavior in the meeting was
inappropriate. The arbitrator found the
preponderance of the evidence supported the
grievant’s position. However, the arbitrator
stated that the grievant was not totally blameless
and under different circumstances, some form of
discipline would have been warranted. He found
that neither party presented information
regarding the effect of the first EAP the grievant
completed. The grievant was reinstated on the
condition that he enroll in and complete an EAP.
The arbitrator ordered that any additional or
different forms needed for the program be
executed. 794
The arbitrator found that there were no Division
rules – written or oral – instructing the grievant
in her selection of documents to share with the
SEC under the access agreement the Division
had with the SEC. The record failed to show
that the communication from the AG’s office
was in fact a communication between attorney
and client. Although the Division asserted the
theory that the disclosure of the letter was
“clearly wrong”, the arbitrator determined the
theory to be inapplicable in this case. He stated
that if the Division wanted to include removal as
a consequence for the disclosure of the letter, it
could have created a rule stating so. Therefore,
the arbitrator found that there was no just cause
for removing the grievant because of the
disclosure. The arbitrator determined that the
numerous telephone calls between the grievant
and the prosecutor’s office were not initiated by
the grievant. The prosecutor’s office began an
investigation as a result of a complaint by a
citizen. Therefore, the grievant had a duty to
cooperate with the official investigation and
answer inquiries from the investigator. Failure
to do so would have subjected her to discipline.
Regarding the charge of neglect of duty in failing
to prepare the subpoenas in a timely manner, the
grievant did not dispute the charge. However,
she presented several explanations for the
neglect, including her concentration on
responding to two county subpoenas and her
difficulty in connecting with the Assistant AG
who would act as trial counsel at the hearings.
The arbitrator determined that neglect of duty is
an offense with progressive disciplines for the
first four offenses. The arbitrator found that
given the mitigating explanations and the fact
that all of the witnesses appeared at the hearing
through telephone contacts by the grievant, a
written reprimand was the appropriate discipline
in this instance. 797
The arbitrator concluded that sufficient evidence
existed to support the employer’s position. The
inmate’s statement and the CO’s statement
corroborated each other and were credible. The
arbitrator noted that testimony from two Union
witnesses who observed the grievant’s behavior
and viewed the grievant’s conduct as
inappropriate enhanced that credibility. The
arbitrator determined that the employer provided
conclusive and substantial evidence that the
grievant had unauthorized contact with the
grievant. The employer provided evidence that
the grievant emailed the inmate’s mother and
indicated that she wanted the inmate’s mother to
call her. The fact that the grievant failed to
comply with the direct orders to provide her
son’s cell phone number – pivotal in determining
whether or not phone calls occurred using that
particular phone – indicated to the arbitrator that
the grievant did not want to disclose the number.
There were no mitigating factors in this case.
The grievant was aware of the risks and the
consequences of her actions. She continued her
actions anyway. The arbitrator found removal
was for just cause. 798
Management used a written reprimand to shape
the level of discipline in violation of Article
24.06. The grievant’s action should have been
treated as a first offense who was on notice, not
as a second offense. Management’s denial of
access to documents hindered the Union in its
investigation. Pursuant to Article 25.08,
management has an obligation to provide
documents available to assist the Union in
meeting its burden of proof. If management
requested the release of redacted documents for
inspection by the Union under the umbrella of
privilege, it was unreasonable of it to refuse the
same request by the Union for the documents
need for its case. The arbitrator concluded that
the documents in question would have buttressed
the Union’s position that other examiners were
copying, but were not disciplined for their
actions and while they others may be guilty of
neglect or poor judgment, they were not guilty of
insubordination since they were not under orders
not to copy. Therefore, the charges of neglect