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y the arbitrator. If the Union desired witnesses,
it had the right to subpoena them. The Union had
no reasonable expectation of relying on the
employer to help the Union’s case. The Union is
entitled to demand that the employer provide it
with available witnesses and documents under
Section 25.08 of the Agreement. 302
The Union objected that the State withheld
certain documents and protested their admittance
into evidence. When the arbitrator sustained the
Union’s objection and refused to admit the
documents into evidence this was deemed a
complete remedy for the employer’s violation of
the disclosure requirements. By excluding the
material from the arbitration, the arbitrator did
not allow the evidence to be used to support
discipline. 302
Assessing claims of due-process violations
should be carried out case-by-case, with attention
to the question of whether the employee and/or
the Union was prejudiced by an omission. It is
conceivable that an agency might substantially
and successfully perform its 24.04 obligations
even though it errs in overlooking some of the
minutia. This does not mean that 24.04 can be
dismissed by the employer or that its procedures
are discretionary. They are contractual directives
which, if not fulfilled, may well produce an
arbitral award summarily overturning the most
deserved discipline. 302
The employer must provide the full and complete
witness statements before the Pre-Disciplinary
Hearing, not summaries of the witnesses
statements. The rationale that the State provided
of protecting the youth was nebulous and failed
to overcome the clear language of Section 24.04.
Altered or unavailable evidence can be severely
prejudicial to the Union’s effort to defend the
grievant. The arbitrator would have reinstated the
grievant without back pay but because of the
State’s violations back pay was awarded after the
181st day of the grievant’s removal. 308
A basic requisite of just cause is a fair
investigation conducted by the employer prior to
the imposition of discipline. Even though the
employer turned the actual investigation over to
police officer, a reasonable action in a prison
escape situation, such delegation does not relieve
the employer of a duty to review that
investigation for accuracy and fairness. The
investigation was determined by the arbitrator to
be conducted unfairly. The Trooper in charge
focused all his efforts on proving the grievant
was guilty and did not even conduct a true
investigation. 314
The employee’s right to Union representation
under Section 24.04 of the Agreement will arise
only if the employee requests representation and
if the employee has reasonable grounds to
believe that the interview may be use to support
the disciplinary action against him/her. The
arbitrator found that in defining the words
“investigatory interview” the phrase refers solely
to an investigatory interview conducted by an
employer which might lead to discipline; the
phrase is not intended to cover a State Police
investigation which might lead to conviction for
a criminal offense. 325
The terms of the agreement are not binding on
parties external to the Agreement. Section 24.04
of the Agreement does not contemplate a
criminal investigation and the right to Union
representation applies solely to the employeremployee
relationship. The term “investigatory
interview” applies solely to the parties of the
Agreement and to the bargaining unit members
of represented by the Union. 325
In this case there was no “investigatory
interview” as considered under Section 24.04 but
the arbitrator would not decide whether there
would be a violation if a supervisor was present
during a State Police investigation and used the
information to discipline the grievant. 325
A criminal investigation is beyond the four
corners of the Agreement between the parties.
325
The arbitrator does not have the authority to
indicate to the State Highway Police where it
may or may not conduct its investigations. 325
The arbitrator was disturbed that no interview of
the grievant was conducted during the
investigation of possible abuse. The grievant’s
reports and presence at the pre-disciplinary
meeting mitigate this lapse to some extent. For
an employer to be fair and have credibility in its
disciplinary actions it must conform no only to
the contractual procedures but also to the rules
and guidelines it, itself, has established. 326
The employer violated Section 24.04 of the
Agreement by not making the youths statements
and photographs available to the Union and this