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the co-worker allegedly threatened, who had a deteriorated
relationship with the Grievant since the events of a prior
discipline. The investigator did not consider that the coworker
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 preformed
opinion. 985
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
ARTICLE 26 – HOLIDAYS
Article 26 does not establish criteria for whether an
employee who had an authorized leave of absence the day
before a holiday will receive holiday pay for the holiday. 21
No dispute exists that non part-time employees are entitled
to be paid the “normal” number of hours they would be
scheduled to work as holiday/straight time pay. The dispute
centers upon number of hours part-time employees are to be
paid as holiday pay under Article 26.02 and/or straight time
pay under Article 26.03. The language to standardize the
computation of holiday pay for part-time employees was
accomplished during negotiations and the evidence offered
by the Union fails to contradict the final written agreement.
The reading of Article 26.03 in conjunction with Article
26.02 does not modify the language to make it ambiguous
or unclear. The parties could have made it clear in Article
26.02 that part-time employees who work holidays were
entitled to holiday pay based upon the actual hours worked
that day. They did not. There is no evidence to find that a
mutual mistake occurred which would require reformation.
990
26.02 – Work on Holidays
An employee is on a “regular” schedule, for the purposes of
26.02 and 13.07, if the schedule is predictable. Thus, even a
rotating schedule can be a regular schedule. 93
No dispute exists that non part-time employees are entitled
to be paid the “normal” number of hours they would be
scheduled to work as holiday/straight time pay. The dispute
centers upon number of hours part-time employees are to be
paid as holiday pay under Article 26.02 and/or straight time
pay under Article 26.03. The language to standardize the
computation of holiday pay for part-time employees was
accomplished during negotiations and the evidence offered
by the Union fails to contradict the final written agreement.
The reading of Article 26.03 in conjunction with Article
26.02 does not modify the language to make it ambiguous
or unclear. The parties could have made it clear in Article
26.02 that part-time employees who work holidays were
entitled to holiday pay based upon the actual hours worked
that day. They did not. There is no evidence to find that a
mutual mistake occurred which would require reformation.
990
Section 26.02 was newly negotiated contract
language in the 2006-2009 collective bargaining
agreement. The disputed language was proposed
by the Employer and accepted by the Union. The
Arbitrator held that the Employer did not violate
Section 26.02 when it implemented and applied a
formula for calculating part-time employees’
holiday pay. Section 26.02 contains language
which is clear and unambiguous because holiday
pay is pro-rated and based on the daily average of
actual hours worked. The parties admitted the
primary goal with the provision was to standardize
outcomes across and within agencies. The Union
argued that the parties did not intend to have any
workers harmed as a consequence of the new
formula. The Arbitrator held that maintaining
holiday pay outcomes within this circumstance
were highly unlikely, since the parties agreed to a
standardized methodology, where various
methodologies were employed in the past. This
would result in some employees having holiday
pay increases or decreases from pre-negotiated
methods of calculation. 1008