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unreasonable. The arbitrator found that even
though the Department overlooked procedural
flaws in other grievances, enforcing such
standards on this grievant is not unjust. The
arbitrator stated that the parties themselves have
the power to settle or not settle and to waive or
not waive timeliness as they see fit. In this
instance, the Department is enforcing the
timeliness requirement. Since the grievance is
not arbitrable, the merits cannot be addressed.
821
The grievant was removed from his CO position
in May 2003. The grievant filed a grievance.
The grievant was reinstated as a result of a
Settlement Agreement. While this grievance was
pending, the Grievant filed an unemployment
claim, and a determination was issued that the
removal was not for just cause. The Employer
appealed this decision. Another hearing was
conducted, and when the hearing officer inquired
as to the status of the grievant’s discharge
grievance, the Employer submitted the
Settlement Agreement. The hearing officer
reversed the redetermination, finding the
grievant was on a disciplinary layoff for
misconduct in connection with his work. No
appeal was filed to request a review, so ODJFS
sought repayment from the grievant. It was not
until after the deadline had past for appeal and
ODJFS sought repayment, that the grievant
appealed the determination of overpayment of
benefits. A hearing was held regarding the order
of repayment, where a discussion ensued
regarding whether the grievant had appealed the
determination that he was ineligible for benefits,
since a final determination of ineligibility was
necessary for a determination of amounts
overpaid. The grievant’s attorney requested a
copy of the redetermination decision. This was
followed by a fax of the grievant’s appeal of the
redetermination, which was undated. The appeal
disputed that the grievant was on disciplinary
lay-off while receiving benefits, asserted that his
Employer’s references to the Settlement
Agreement were improper, and asked that the
determination that he received overpayment of
unemployment benefits be overturned. The
grievance was denied. 919
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 grievance was not dismissed as untimely.
The Arbitrator held that the grievant was
mistaken in her belief about what the grievable
event was. However, only work performed by
others during the ten days preceding her
grievance, which was work normally performed