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in Article 24.04 as a meeting. The arbitrator
found that five examination reports were not
submitted by the grievant. The supervisor was
“extraordinarily patient with the grievant” and
gave him several reminders to submit the
examination reports. The grievant clearly
understood he was to submit the reports. The
grievant’s failure to submit the reports was a
failure to perform a fundamental part of his job.
The Employer failed to make its case with
regards to the grievant’s time sheets. The
employer did not show just cause to discipline
the grievant for working excess hours without
authorization. Though the time sheet was not
clear, it was obvious that the grievant was not
claiming hours beyond his scheduled hours. The
arbitrator determined that there was no just cause
for Working in Excess Poor Judgment, Failure of
Good Behavior and Exercising Poor Judgment;
however, he found just cause for Insubordination
and Neglect of Duty. The arbitrator found the
10-day suspension reasonable. The decision by
the employer to suspend the grievant for 10 days
in this case was based in part on an act of
insubordination that occurred approximately one
month prior to the charges in this matter. 854
2.01 - Non-Discrimination
While the arbitrator ruled that a probationary
removal is not generally arbitrable, She found
that the issue of sex discrimination is arbitrable
under 2.01 and 25.01. 207
The employer has a duty to prohibit sexual
harassment and take action to eliminate sexual
harassment in the work place. 286
The warning of a supervisor to an employee of
“be careful with the girls” does not qualify as an
adequate warning of what behavior will be
deemed sexual harassment. 286
Even though the grievant was not on notice of
what constituted sexual harassment, pinching a
woman’s midriff just below her brassiere was
deemed a failure of good behavior and the
grievant’s removal was modified to a fifteen day
suspension without pay or benefits. 286
Evidence in a sexual harassment case on how the
two alleged victims dressed, talked, and their
daily mannerisms were not admitted into the
arbitration hearing. The arbitrator found the
dress and mannerisms of the woman has no
relevant relationship to the charge of unwanted
sexual touching or unwanted sexual exposure.
324
The Union failed to present evidence of
supervisory intimidation, discrimination on the
basis of handicap (alcoholism) or disparate
treatment. 441 (1992-94 contract)
The burden of proving disparate treatment is on
the Union. The Union showed that a number of
employees were facially treated differently from
the grievant, but different treatment alone does
not prove disparate treatment. To prove disparate
treatment, the different treatment must either
have no reasonable and contractually
appropriate explanation or be motivated by
discrimination or other ill purposes. The Union
proved only one part of the claim of disparate
treatment: different treatment. However, the
Union failed to show that the employees in
question were in similar or analogous position.
In almost all the cases cited by the Union, the
employees in question had little or no prior
discipline. In this case, the grievant had a long
and clear record of disobeying rules with no
indication that the discipline was corrective.
452 (1992-94 contract)
The Employer had just cause to remove the
grievant for making racial slurs. The grievant
never apologized, nor did he testify as to his
intention or state of mind when he made these
racial slurs. His longevity, the harm caused, his
prior discipline and any mitigating factors must
be balanced. Such balancing is at the prerogative
of the Employer, unless it is not progressive or
commensurate. The arbitrator cannot substitute
her judgment for that of the employer without
such a finding. 452 (1992-94 contract)
The Arbitrator rejected the Union’s argument
that the grievant, who falsified his applications,
resumes and a recommendation letter, was
discriminated against. The Union did not
corroborate its allegations that the grievant was
removed because he filed a multitude of
grievances or because he was black. 453 (1992-
94 contract)
The employer had just cause to remove the
grievant for sexual harassment and failure of
good behavior. The grievant was provided with
proper notice concerning the sexual harassment
policy articulated in the Work Rules and
Procedures. The employer’s training efforts were