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grievant received all seniority and pension credit
and was to be compensated for all expenditures
for health incurred that would have been covered
by state-provided insurance. All leaves balances
were restored and any reference to this incident
was ordered stricken from the grievant’s
personnel record. 924
The Arbitrator found that the Employer
exercised sound discretion given the fact that the
Grievant had failed to respond in a meaningful
way to prior progressive corrective action steps
(particularly to a fifteen day suspension) in an
effort to improve her dependability. The
Grievant also failed to present any convincing
mitigating factors that would excuse her late call
in or her one hour and twenty-four minute
absence from work. The Arbitrator did not agree
that the Grievant was treated in a disparate
manner, that a misstated year on a letter had any
impact on the timing of the investigation, and
that there was bias when the investigator was a
witness to the Grievant’s calling in late. 928
The grievant was observed arriving late for work
on two separate dates and upon arrival did not
clock in. The grievant stated that he did not
clock in because he was on an LCA and did not
want to get into additional trouble. During his
pre-disciplinary meeting the grievant stated he
was forced to sign the agreement, his
representative misled him regarding the
agreement and its effects, and he had been
wrongly placed on an LCA because his
disciplinary record was incorrect. A ten-day
suspension had been reduced to a five-day
suspension through NTA. The arbitrator found
that the grievant and the Union should have
sought to correct the grievant’s record prior to
the LCA and based upon the untimely manner in
which the issue was raised there was no longer
appropriate relief. The agency’s conduct
complied with the intent of the LCA and no
mitigating factors were presented to warrant
reversing the removal. 931
The grievance was upheld in part and denied in
part. The employer was directed to send the
Grievant to a psychologist or psychiatrist to
determine his fitness to return to work. If the
Grievant was determined to be fit to return to
work, he was to be promptly reinstated to his
former position on a last chance basis with no
loss of seniority. The Grievant was to be given
back pay and benefits from the date of the third
step grievance meeting until he was returned to
work. Any interim earnings were to be deducted
from his back pay. The Arbitrator rejected the
Employer’s contention that the grievance was
not arbitrable because it was untimely. It was
unclear when the Grievant was removed. A
notice of removal without an effective date has
no force or effect. When the Grievant did not
respond to the Employer he appeared to have
been acting in accord with his doctor’s
instructions. While the Grievant was informed
by payroll that he had been removed, the
collective bargaining agreement requires that the
notice be in writing and provided to both the
employee and the union. The allegation of
misconduct arose from three incidents involving
a coworker. In the first the Grievant was joking
and it should have been obvious to the coworker.
Given the questions about the coworker’s view
of the first incident and her failure to report the
alleged misconduct until the next day, the
Arbitrator could not accept the coworker’s
testimony on the second incident. Because he
was out of line when he confronted the coworker
in a rude and aggressive manner, the Grievant
merited some disciplinary action for the third
incident. In addition, the Arbitrator did not
believe the Employer established that the
Grievant made false or abusive statements
regarding the coworker. The strict adherence to
the schedule of penalties in the Standards of
Employee Conduct sometimes results in a
penalty that is not commensurate with the
offense and the employee’s overall record. The
Grievant was a 12-year employee with good job
evaluations and his offense was minor. The
Arbitrator believed the employer was prepared to
return the Grievant to work on a last chance
agreement. The Arbitrator denied the request for
full back pay based on the Grievant’s failure to
contact the employer or to authorize the union to
contact the employer on his behalf. Back pay
was granted from the date of the third step
grievance meeting where the employer should
have attempted to implement the alternative to
removal it had proposed earlier. 932
The Grievant was a Corrections Officer who was
terminated for violating a work rule that
prohibits employees from giving preferential
treatment to any individual under their
supervision, Rule 45 (A) & (B). Beginning in
early 2005, the Grievant began exchanging food
for information on drug related activity in the
institution. At the time of the discipline, the
Grievant had no prior discipline on his record.
The Employer argued that the Grievant’s co-