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her family members. The arbitrator determined
that in light of what she heard herself, there was
insufficient evidence to overturn the removal.
885
The grievant was accused by her employer of
deleting records from the database in an effort to
outperform a co-worker. The employer never
presented testimony or evidence to prove this
theory. The grievant testified that customer
feedback regarding her performance was
important. There was a problem in system in
obtaining that feedback. The arbitrator stated in
his decision that the grievant credibly explained
her situation and what she did to explore the
problem. Nothing in the record discredited the
feedback problem experienced by the grievant.
The arbitrator concluded that the grievant’s
attempt to clarify the matter appeared plausible,
although somewhat unusual. 886
The problem in this case centered upon ad-hoc
requests for vacation leave that seek the leave on
dates for which the employer has not yet
developed the four-week work schedule (i.e.
request for one day of vacation eight months
later that was held by the employer until the
employer had established the work schedule for
the four-week period covered) In a previous
decision, Arbitrator Brookins held that the
bargaining contract does allow the Employer to
hold requests for vacation leave until the
schedule for the four-week period covered by the
leave is established. In Arbitrator Murphy’s
opinion, he stated that the test on the
applicability of the Brookins’ decision to this
case is not whether this arbitrator agrees with the
analysis in the Brookins’ Opinion nor whether
this arbitrator would have rendered a similar
decision had the issue in this case been presented
as an original question to this arbitrator. It could
not be said that the Brookins’ analysis was
egregiously erroneous and substantively without
merit. The Brookins’ analysis was based upon
construction of the language in the fifth
paragraph of Article 28.03 in the context of
preceding paragraphs. It was based upon
traditional rules of construction of contracts.
The Brookins’ Award should stand until the
parties choose to change it in bargaining a future
contract. 887
ODA’s utilization of the sexual harassment
policy was improperly applied regarding the
December 4 th incident. On that day, according to
the Grievant’s co-worker, the grievant was
insubordinate, gave her angry looks, and made
loud sounds. The evidence, however, only
revealed that the grievant was in the victim’s
work area because he was assigned to be there,
and he made eye contact along with two loud
sighs. The discipline issued for the December 4 th
incident was not issued for just cause, so the ten
(10) day suspension that the grievant received for
the incident should not stand. The discipline that
the grievant received for the November 25, and
November 26, incidents was not arbitrary or
inconsistent, so the twenty (20) day suspension
should stand. On those days, the grievant made
multiple comments to the victim and touched her
shoulders. Therefore, the Grievant’s suspension
was reduced from thirty (30) to twenty (20) days.
888
The grievant was a ten-year employee with
DR&C and had no active disciplines on his
record. An inmate informed the agency that the
grievant had a sexual relationship with an inmate
while working overtime on a unit to which he
was not regularly assigned. Following an
investigation, which included review of video
tape of the grievant entering and exiting a
laundry room with an inmate during a formal
head count, management determined that the
grievant failed to obtain authorization before he
released an inmate from her cell during a formal
count. He placed himself in a compromising
position by being in a dark room with an inmate
for ten minutes. He was removed from his
position. The grievant argued that he was
unaware of the requirement for authorization to
release inmates to wash their soiled sheets after
an accident; the video was not a true indicator of
what happened and exaggerated the darkness of
the room; and, his presence in the laundry room
with the inmate did not compromise his ability to
perform his duties. The arbitrator determined that
based on the evidence the grievant violated
agency rules of conduct, however, aggravating
and mitigating factors in this instance do not
warrant removal. The arbitrator found the
removal to be “unreasonable, arbitrary, and
capricious”. The arbitrator based his decision on
the grievant’s ten years of service, his spotless
disciplinary record and presumed satisfactory
evaluations. Additionally, he maintained a
respectable status in his community. More
importantly, the arbitrator found that the agency
failed to give the grievant adequate notice and
access to policy regarding inmate movement
during counts. The arbitrator stated, “Even
though the grievant must have understood the