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efore the pre-disciplinary hearing, in
violation of Article 24.05. The
Grievant’s immediate supervisor was
directed by his supervisors to alter his
evaluation of the Grievant. The revised
evaluation contained four “does not
meet” areas, whereas his original
evaluation had none. Witnesses from
both sides, including management, were
aware of the animus between the coworkers.
The Employer was complicit
in not addressing the conduct or
performance issue of the Grievant and
the co-worker, which escalated over
time and culminated in the break room
incident. 1013
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:
e. installing a Palm Pilot on her work
computer.
f. maintaining non‐work related files
on her department computer.
g. accessing two non‐departmental
email accounts from her computer
h. 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 held that the Employer
had just cause to remove the Grievant.
Previously the Grievant had been
reinstated to her position after a
removal was reduced to a 433 day
suspension (Arbitration Decision No.
991). No back pay or benefits were
granted. The Grievant failed to
“purchase” any leave balances upon her
return to work.
Thereafter, the grievant
requested sick leave coverage for two
days (16 hours) of “gastritis”. She had
insufficient sick leave balance and
management refused to allow her to
supplement by utilizing other leaves “in
lieu” of sick leave. There was no claim
that the situation was an emergency.
The union argued that
intermittent and interim employees
were treated differently from permanent
employees in the same type of
situations. The Arbitrator ruled that
they did not hold the same status as fulltime
permanent employees and
therefore, could be treated differently.
The union further argued a 1999
grievance settlement, wherein, the
Employer allegedly agreed to review,
on a case by case basis the use of
“other” leaves. The Arbitrator rejected
this argument as having a “chilling”
effect on future grievance settlement
attempts. 1017
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