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enroll in an EAP program within five
days of the pre-disciplinary meeting or
prior to the imposition of discipline,
whichever is later. This barred any
attempts at mitigation. 1030
The Grievant had entered into a Last
Chance Agreement with the agency.
She then violated the Corrective Action
Standard, AWOL—No approved
request for leave. The Arbitrator held
that the Last Chance Agreement was
fair, just, and reasonable. The Grievant
was knowledgeable of the corrective
action standard and there was no
evidence showing that those corrective
action standards were not published or
selectively used rather than evenhandedly
applied. The Arbitrator found
that the Grievant’s excuse for the
absence lacked corroboration in any
manner or respect. The Arbitrator
reminded the parties that if a
termination is based upon a Last
Chance Agreement the just cause
provisions may not apply, but rather the
application is under the Last Chance
Agreement. 1031
The Arbitrator found that the Grievant
was removed without just cause.
Management did not satisfy its burden
of proving that he acted outside the
Response to Resistance Continuum and
engaged in the conduct for which he
was removed. The Youth’s level of
resistance was identified as combative
resistance. The Grievant’s response
was an emergency defense, which he
had utilitized one week earlier with the
same Youth and without disciplinary
action by Management. A fundamental
element of just cause is notice.
Management cannot discharge for a
technique where no discipline was
issued earlier. In addition there was no
self-defense tactic taught for the
situation the Grievant found himself in.
1032
The Arbitrator held that BWC had just
cause for removing the Grievant, since
the Grievant was either unwilling or
unable to conform to her employer’s
reasonable expectation that she be
awake and alert while on duty. The
agency and the Grievant had entered
into a settlement agreement, wherein
the Grievant agreed to participate in a
180-day EAP. However, the Arbitrator
found that the sleeping while on duty
was a chronic problem which neither
discipline or the EAP had been able to
correct. The Grievant raised the fact
that she had a common aging problem
with dry eyes and was taking a drug that
made the condition worse. However,
she never disclosed to the supervisor
her need to medicate her eyes. The
Arbitrator held that this defense
amounted to post hoc rationalization
and couldn’t be credited. The
Arbitrator felt that a person on a lastchance
agreement for sleeping at work
and who had been interviewed for an
alleged sleeping infraction would take
the precaution of either letting her
supervisor know in advance about this
treatment, take the treatment while on
break and away from her work area, or
get a witness. 1033
The Arbitrator found that the Grievant
committed the misconduct she was
accused of; therefore, the Employer had
just cause to discipline her. However,
there was not just cause to remove her.
Considering all the circumstances, the
Grievant had an isolated and
momentary lapse in judgment. There
was no physical harm or dire
consequences from the momentary
lapse. Recent arbitration awards
between the Parties, uniformly
reinstated--without back pay--
employees involved in physical
altercations more substantial that the
Grievant’s. (See Arbitration Decisions:
971, 995, 996.) The Grievant was
reinstated without back pay, but with
seniority restored. 1034
The Arbitrator found that Management
satisfied its burden of proving that the
Grievant failed to maintain the close
supervision for one patient and one-onone
supervision for another patient.
The Grievant chose to work without
adequate sleep, rather than to seek
leave, and her choice placed the
residents in her supervision, and the
Center at risk. However, Management
had created an arbitrary distinction in
supervision cases arising from sleeping
on duty. The Union established that
other similarly situated employees