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consider that the co-worker may have
exaggerated or over-reacted. Management’s
handwritten notes were held to be discoverable
under Article 25.09. It had refused to produce
them until after the grievance was filed and then
had to be transcribed for clarity, which delayed
the arbitration. The investigator breached the just
cause due process requirement for a fair and
objective investigation which requires that
whoever conducts the investigation do so
looking for exculpatory evidence as well as
evidence of guilt. Then, to make matters worse,
the same investigator served as the third step
hearing officer, essentially reviewing his own
pre-formed opinion. 985
The evidence does support a finding that just
cause exists for discipline under Rule #6 because
it was the clear intent of the Grievant to threaten
the co-worker. A picture posted in the break
room by the Grievant was offensive and was
intended to threaten and intimidate the coworker.
However, just cause does not exist for
removal. The evidence fails to indicate that
during the confrontation in the break room the
Grievant engaged in any menacing or threatening
behavior toward the co-worker. The co-worker’s
initial response to the posting of the picture
failed to demonstrate any fear or apprehension
on his part. In fact, his reaction in directly
confronting the Grievant in the break room
underscores his combative nature, and was
inconsistent with someone allegedly in fear or
apprehension.
The Arbitrator took into consideration
several mitigating factors. None of the
Grievant’s allegations against the co-worker
were investigated. The facts are unrefuted that
the Employer failed to provide any documents or
witness list before the pre-disciplinary hearing,
in violation of Article 24.05. The Grievant’s
immediate supervisor was directed by his
supervisors to alter his evaluation of the
Grievant. The revised evaluation contained four
“does not meet” areas, whereas his original
evaluation had none. Witnesses from both sides,
including management, were aware of the
animus between the co-workers. The Employer
was complicit in not addressing the conduct or
performance issue of the Grievant and the coworker,
which escalated over time and
culminated in the break room incident. 1013
24.06 – Prior Disciplinary Action
Reliance on pre-contractual discipline is not
inappropriate when not based on records kept in
violation of 24.06 (in this case, record used was
suspension order initiated prior to effective date
of contract). 47
The parties have agreed that, for the purpose of
applying progressive discipline, pre-contract
disciplinary actions are to be considered under
the same guidelines as post-contract actions
(24.06). 91
Pre-contractual discipline is not irrelevant. To
the contrary, the parties have expressly provided
in 24.06 that pre-contractual and post-contractual
discipline are to be treated equally insofar as
inclusion in personnel records. As Arbitrator
Rivera suggests, however, it may be appropriate
in certain circumstances for an arbitrator to
assign somewhat less weight to some precontractual
discipline due to the lesser
disciplinary standard applied at the time. 106
When the state offered a past reprimand that
should have been expunged from grievant’s
records under 24.06, the state violated 24.06. The
arbitrator mistakenly ignored 24.06 when he
accepted the reprimand into evidence.
Consequently, the arbitrator gave the reprimand
no weight. 140
While the arbitrator endorsed Arbitrator
Dworkin’s analysis of 24.06 which prevented the
admission of evidence about discipline prior to
the contract, he held that the analysis did not
anticipate the circumstances surrounding the
present case where the grievant had falsified her
employment application by omitting that she had
previously been removed from employment with
the state. The arbitrator held that evidence of that
removal obtained by an investigation was
admissible in such a situation. To preclude such
an investigation would frustrate the employer’s
selection and appointment process. Without
additional evidence of the intent of the parties
regarding 24.06, the arbitrator was unwilling to
find that the employer had violated 24.06. 268
− The Trooper investigating the escape and the
Step Three official both knew of a 1984 incident
in which the grievant was disciplined. Citing this
discipline was not proper under Section 24.06
which requires excising discipline from the
employee’s record. 314