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Agency and will not be tolerated. A three-month
suspension without pay should sufficiently deter
the Grievant and others from embracing such
conduct. The agency was ordered to reinstate the
Grievant. 987
The Arbitrator held that the removal lacked just
cause and must be set aside. In a related case
Arbitrator Murphy held that lax enforcement of
the employee-resident personal relationship ban
undermines enforcement of other provisions of
the policy including the ban on accepting money
from residents. This Arbitrator agreed.
Management’s actions have to be consistent with
the published policy and rules, and similar cases
have to be treated in a like manner for them to
have value in guiding employee conduct.
Because of lax enforcement of far more serious
infractions elsewhere in the agency, the Grievant
could not have expected removal for borrowing
money from a resident. The Grievant had
previous counseling for receiving a bag of
gratuities from a resident. She should have
learned that accepting gratuities from residents
makes her subject to discipline. Her case is
aggravated by her contact and attempted contacts
with witnesses against her pending the
arbitration. For this reason she is reinstated, but
without back pay and benefits. 991
The Grievant was removed after two
violations—one involving taking an extended
lunch break, the second involved her being away
from her work area after punching in. Within the
past year the Grievant had been counseled and
reprimanded several times for tardiness and
absenteeism, therefore, she should have know
she was at risk of further discipline if she was
caught. Discipline was justified. The second
incident occurred a week later when the Grievant
left to park her car after punching in. The video
camera revealed two employees leaving after
punching in. The other employee was not
disciplined for it until after the Grievant was
removed. That the Reviewing manager took no
action against another employee when the
evidence was in front of him is per se disparate
treatment. No discipline for the parking incident
was warranted. Management argued that
removal was appropriate since this was the
fourth corrective action at the level of fine or
suspension. The Grievant knew she was on a
path to removal. But she also had an expectation
of being exonerated at her Non-traditional
Arbitration. Her 3-day suspension was vacated
by an NTA decision. That fine was not to be
counted in the progression. The Grievant was
discharged without just cause. 992
The Grievant had a prescheduled medical
appointment on the afternoon of July 24. Then
the Grievant called off for her entire shift early in
the morning of July 24. An Employee is under a
duty to provide a statement from a physician
who has examined the employee and who has
signed the statement. The statement must be
provided within three days after returning to
work. The Grievant should have submitted a
physician’s statement on the new request—the
second request for an eight (8) hour leave. The
Grievant, instead, submitted the physician’s
statement that comported entirely with her initial
request for a leave on July 13 for three (3) hours.
The record does not show that the reason for the
prescheduled appointment was for the same
condition that led her to call of her shift. The
letter from the doctor made it clear that they
could not provide an excuse for the entire shift
absence requested by the Grievant. There was
no testimony from the Grievant about why she
called off her entire shift. The record does not
support the finding that the Employer
“demanded” a second physician’s verification.
The physician’s verification submitted by the
Grievant supported only a leave for three (3)
hours, and the record is sufficient to show that
the Employer did note this inadequacy to the
Grievant on August 7. Based on the record, the
Arbitrator found that the Grievant failed to
provide physician’s verification when required—
an offense under Rule 3F of the Absenteeism
Track set forth in the disciplinary grid. This
constituted a breach by the Grievant of her Last
Chance Agreement. Proof of this violation
required that “termination be imposed.”
Furthermore, the Arbitrator did not have any
authority to modify this discipline. 993
The Arbitrator held that, management
demonstrated by a preponderance of the
evidence that the Grievant violated General
Work Rules 4.12, 5.1, and 5.12, and therefore,
some measure of discipline was indicated.
Mitigating factors were the Grievant’s three
years of tenure, satisfactory performance record,
and no active discipline. In addition, the Agency
established only one of the three major charges
that it leveled against the Grievant. Also,
nothing in the record suggested that the Grievant
held ill will against the Youth. The Arbitrator
held that removal was unreasonable, but only
barely so, in light of the Grievant’s poor