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of his separation, and he was reinstated pursuant
to a two-year probationary plan, under which he
shall violate no rule or policy involving any
youth. Failure to comply will be grounds to
remove the Grievant. 995
The Arbitrator concluded that more likely than
not the Grievant transported a cell phone into the
institution within the period in question,
violating Rule 30, by using it to photograph her
fellow officers. The Arbitrator held that the
Agency clearly had probable cause to subpoena
and search 13 months of the Grievant’s prior
cell phone records. The prospect of serious
present consequences from prior, easily
perpetrated violations supported the probable
cause. The Arbitrator held that the Grievant
violated Rule 38 by transporting the cell phone
into the institution and by using it to telephone
inmates’ relatives. The Arbitrator held that the
Grievant did not violate Rule 46(A) since the
Grievant did not have a “relationship” with the
inmates, using the restricted definition in the
language of the rule. The Arbitrator held that the
Grievant did not violate Rule 24. The Agency’s
interpretation of the rule infringed on the
Grievant’s right to develop her defenses and to
assert her constitutional rights. The mitigating
factors included: the Agency established only
two of the four charges against the Grievant; the
Grievant’s almost thirteen years of experience;
and her record of satisfactory job performance
and the absence of active discipline. However,
the balance of aggravative and mitigative factors
indicated that the Grievant deserved a heavy
dose of discipline. Just cause is not violated by
removal for a first violation of Rules 30 and 38.
1003
The Grievant acted contrary to the
Employer’s training and directives and
admitted he acted inappropriately. The
Youths made verbal comments that
were tied in to their combative
behavior. The Arbitrator found that
there were grounds for discipline, but
did not think removal was warranted.
Considering the total evidence, the
discipline was not progressive and
needed to be modified. The removal
was changed to a forty-five day
suspension.
1015
The Arbitrator found that the evidence
and testimony clearly established that
the Grievant committed numerous
violations of the computer use policy on
a regular basis. These included:
m. installing a Palm Pilot on her work
computer.
n. maintaining non‐work related files
on her department computer.
o. accessing two non‐departmental
email accounts from her computer
p. using the computer to actively
access shopping sites
The Arbitrator rejected the charge of
insubordination. The Arbitrator held
that “dishonesty” was not a proper
charge. It implies serious misconduct
where an employee’s motive is often to
obtain pay that he/she is not entitled to
receive. The Grievant’s timesheets
suggest that she simply recorded her
regular starting, lunch, and ending times
regardless of the actual times and none
involved a claim for extra
compensation. Furthermore, all the
timesheets were approved by her
supervisor. The prior five-day
suspension for computer misuse
suggests that the Grievant was familiar
with the computer use policy and knew
that further discipline would result from
continued computer misuse. It also
indicates that she failed to take
advantage of the opportunity to correct
her behavior.
Despite the Grievant’s 13 years of state
service, the Arbitrator held that the state
had the right to remove her. The
Grievant’s extensive violations of the
computer use policy combined with the
other less serious offenses support the
state’s actions. Her prior five-day
suspension for computer misuse
removes any doubt that the state acted
pursuant to its contractual authority.
1016
The Arbitrator overruled the timeliness
issue raised by the union. Article 24.06
gives the employer the option to delay
the decision to discipline and halt the
running of the forty-five days until after
any criminal investigation. The
evidence was clear that there was a fight
and that the Grievant and several other
JCO’s were injured. However, the
evidence was clear from witnesses that
the Grievant hit and kicked the Youth