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In re
the
University
of Chicago
——
and ——
Policemen’s
Benevolent and Protective Association
of Illinois,
Unit 185
120
LA (BNA) 88
June
21, 2004
Steven Briggs, Arbitrator.
Background
The Grievant in this matter is A__. He joined the University of Chicago (the University, the Employer) in 1980 as a Patrol Officer in its Police Department. Officer A__ is represented for collective bargaining purposes by The Policemen’s Benevolent & Protective Association of Illinois, #185 (the Union).
In February, 2003 Officer A__
was assigned to the first watch, working either an 11:00 p.m. — 7:00 a.m. shift
or one that began at midnight and ended at 8:00 a.m. The building known as Rockefeller Chapel was in
his patrol area, and he was responsible for performing a “premises check”
there. That task required him to enter Reverend Alice Boden’s office [1] and disable
the security alarm, whereupon he was supposed to check the interior perimeter
for open doors, water leaks, smoke, temperature aberrations, etc.
On February 28, 2003 Reverend Boden reported to University Police
Department Associate Director of Field Services Lee Caldwell that someone had
used her computer to access pornographic web sites. Reverend Boden was
concerned that someone had accessed her personal computer files as well.
Besides speaking with Caldwell, Boden also contacted University Director of
Enterprise Network Systems and Network Security Bob Bartlett about these
matters.
Sergeant Randall McCarrell , a 33-year veteran of the Department, was
assigned to investigate. With Bartlett’s assistance, McCarrell reviewed
historical data from Boden’s computer, thereby identifying the dates and times
it had accessed various web sites. He also consulted the Department’s watch
lists, dispatch and activity logs. From those data McCarrell concluded that
Officer A__ had been on duty when, according to University network logs,
Reverend Boden’s computer had been used. From his review of Chapel alarm
records, McCarrell determined that the usage had occurred when Officer A__ had
been in the building, between the time he turned off the security alarm and turned
it back on again.
From his investigation Sergeant McCarrell concluded that Officer A__
had used Reverend Boden’s office computer to access various adult dating sites
on February 2, 3, 10, 16, 17 and 24, 2003. McCarrell allegedly learned from A__
during one of their investigatory interviews that one of his screen names was
“Hazwhopper.” [2] The computer activity data also revealed that during some of
the internet sessions in question the user amended profile data for
“Hazwhopper” and accessed the profiles and sexual interest questions for
“SexyChicagoGirl,” “dik4me69,” “suckng94,” “always sticky,” “Illinois slut,”
and others. McCarrell also concluded from his investigation that given the time
Officer A__ had spent on the computer over the various dates at issue, he could
not possibly have completed a proper premises check at Rockefeller Chapel.
Sergeant McCarrell recommended upon completion of his investigation
that Officer A__ be terminated for inattention to duty and
inappropriate/unauthorized use of University information systems. Department
command staff concurred, and Officer A__ was terminated on April 25, 2003.
On April 28, 2003, with the
assistance of a Union Representative, Officer A__ filed a timely grievance in
protest of his termination. When subsequent grievance process discussions did
not result in settlement, the Union advanced the matter to arbitration.
At the hearing the parties
stipulated to the following statement of the issue before the Arbitrator:
Did the University have just
cause to discharge A__ ? If not, what is the appropriate remedy?
Pertinent Agreement
Provisions [3]
Article IV—Management’s Rights
The operation, control and management of the Employer’s facilities and operations, and all business of the University and activities of the University in connection therewith which are covered or affected by this Agreement, and the supervision and direction of the working forces at such facilities, operations and business are and shall continue to be solely and exclusively the functions and prerogatives of the management of the Employer. All of the rights, functions and prerogatives of management which the University had prior to entering into this Agreement with the Union are reserved and retained exclusively to the Employer. In no event shall any right, function or prerogative ever be deemed or construed to have been modified, diminished or impaired by any past practice or course of conduct, or otherwise, other than by an explicit provision of this Agreement. Specifically, but without limiting or affecting the generality of the foregoing, it is distinctly understood and agreed that this Agreement does not affect and shall not be deemed or construed to impair or limit in any way the Employer’s right in its sole discretion and judgment, to determine the nature and extent of the business to be carried on by the University; determine vendors, students and others with whom it will deal, and the prices at which the terms upon which its materials, equipment and supplies will be purchased, leased or otherwise acquired and its services will be sold; determine the size and composition of the working force covered by this Agreement, and assignment of work, and policies affecting the selection of employees; establish and enforce quality, reasonable service standards for its employees, services of the University; establish new departments; introduce new and improved equipment, facilities and service methods; establish and change work performance standards; change, combine, establish or discontinue jobs or operations, and determine when and if vacancies in the working force shall be filled; determine the means and methods by which services will be provided; to schedule and determine the hours of operations (including overtime work); to hire, promote, demote, and transfer, to suspend discipline and discharge for cause; and discontinue temporarily or permanently, in whole or in part, any operations of the University covered or affected by this Agreement. The Employer shall also have the right from time to time to make and enforce such reasonable rules applicable to employees covered by this Agreement, as it may from time to time deem necessary or advisable. Additionally, the Employer may set reasonable appearance and dress standards.
The
parties recognize that any management responsibility, prerogative or right not
specifically and clearly limited by the terms of this Agreement are reserved to
the management of the University.
Article X—Grievance Procedure
Section 10.1 Grievance Defined. A grievance is defined as any
claim by an employee and/or by the Union against the University concerning the
meaning, interpretation or application of any provision of this Agreement.
Section
10.2 Procedure. Grievances shall be processed in accordance with the procedure
specified herein. No action or matter shall be considered the subject matter of
a grievance unless presented within seven (7) days after the occurrence of the
event giving issue to the grievance. If not raised in a timely fashion, the
grievance will be deemed abandoned. Grievances shall be handled in the
following manner:
Step 1: The aggrieved employee shall orally present his/her
grievance to his/her Sergeant. Any resolution or settlement reached at this
step will be without precedent. If no resolution is effected at this step, and
the employee desires to continue his/her grievance, s/he shall follow the
procedures set forth below.
Step 2: If the aggrieved employee is not satisfied with the Sergeant’s response or if the grievance is not settled, s/he shall reduce the grievance to writing and present the grievance to the University’s Police Department Assistant Director of Administration, with a copy to the Union within three (3) days of the Step 1 discussion with his/her supervisor. In the written grievance s/he will set forth his/her claim and facts, will refer to the specific contract provision(s) which allegedly was/were violated as well as state the name of the Sergeant s/he met with and the date of the meeting. Within five (5) working days after the filing of the grievance, the University’s Police Department’s Assistant Director of Administration and the Watch Commander involved, the Union representative and the aggrieved employee shall meet to attempt to reach a settlement. The Assistant Director of Administration will provide written answer to the Union within five (5) working days of the Step 2 meeting.
Step 3: If the grievance is not resolved in Step 2, the Union may
appeal the grievance in writing to the University Police Department’s Associate
Director within five (5) working days of the Step 2 answer. The Union shall set
forth in writing the factual/other reason(s) for the appeal. Within ten (10)
working days off the receipt of the appeal, the Associate Director and the
Assistant Director of Administration will meet with the Union representative
and the aggrieved employee to attempt to resolve the grievance. Within seven
(7) working days of the Step 3 meeting, the Associate Director will provide a
written answer to the Union.
Step 4: If the grievance is not settled during Step 3, the Union
may refer the grievance to the University’s Employee/Labor Relations Director
or his/her designee within seven (7) working days after the Step 3 answer. The
Union shall set forth in writing the factual or other reason(s) for the appeal.
Within ten (10) working days after referring the grievance to the University’s
Employee/Labor Relations Director, the Employee/Labor Relations Director or
his/her designee, the University Police Department’s Executive Director or
designee and the Assistant Director of Administration will meet with the
Union’s Staff Representative and the aggrieved employee to discuss and attempt
to resolve the grievance. The University’s Employee/Labor Relations Director or
his/her designee will provide a written determination within ten (10) working
days of the Step 4 meeting.
Step 5: If the grievance is not settled during the foregoing
procedure, the Union may refer the grievance to arbitration by giving the
Director of Employee/Labor Relations written notice of its desire to arbitrate
within fifteen (15) working days of the Step 4 meeting. Such notice will
contain the factual or other reason(s) for the referral to arbitration. If the
grievance is not submitted to arbitration within the fifteen (15) working days,
the grievance shall be considered settled or abandoned as the case may be.
(a) After the Union appeals the grievance to arbitration, the
Union and the University shall attempt to select an arbitrator. If the parties
are unable to agree on an arbitrator within ten (10) working days after the
Union has served its written notice upon the University, the parties shall
request the Federal Mediation and Conciliation Service to submit a list of
seven (7) arbitrators, who are members of the National Academy of Arbitrators
and who are from the Chicago metropolitan area. The parties will begin the
selection procedure within ten (10) working days after the receipt of the panel
from the Federal Mediation and Conciliation Service. The party requesting the
arbitration will strike the first name from the list and the parties will
strike names alternatively thereafter. The person whose name remains shall be
the arbitrator, provided that either party, before striking any names, shall
have the right to reject one (1) panel of arbitrators. The arbitrator shall be
notified of his selection by a joint letter from the University and the Union
requesting that he set a time and place for the hearing, subject to
availability of the university and Union representatives.
(b) Not more than one (1) grievance may be submitted to or be
under review by any one arbitrator at any one time unless the parties agree
otherwise.
(c) The arbitrator’s decision shall be final and binding on the
University, the Union and the aggrieved employee(s). The arbitrator may
consider and decide only the particular grievance presented to him/her and
his/her decision shall be based only upon an application or interpretation of
the provisions of this Agreement. The arbitrator shall have no authority to
alter, modify, amend, add to or subtract from the provisions of this
Agreement.
(d) The fee and expenses of the arbitrator shall be divided equally
between the parties. The parties will bear their own expenses in preparing for
and presenting their positions to the arbitrator.
(e) In no event shall an award be retroactive beyond thirty (30)
days prior to the date the grievance was first presented in writing.
Section 10.3 Grievance Discussions. Discussions at all steps of
this process shall take place at a place and time mutually agreed to by the
Union and the University.
Section 10.4 Time Limits. A grievance must be filed and appealed within
the time limits set-forth above, unless otherwise mutually extended, or the
grievance shall be considered abandoned or settled on the basis of the last
position taken by the University. In the event that the University does not
answer a grievance within the time limits specified in the grievance procedure,
the grievance shall automatically be processed to the next succeeding step
without a formal appeal by the Union. A written answer by the University,
however, will be submitted prior to discussion of the next step.
The term “working day” as used in this Article means calendar days
exclusive of Saturday, Sunday and holidays.
Section 10.5 Disciplinary Grievances. Any disciplinary action
against any employee shall be subject to the grievance procedure, including
arbitration. Employees suspended or discharged must demand a hearing within
three (3) working days after the notice of discharge or suspension, or the
grievance shall be deemed abandoned. Such grievance shall be handled beginning
in Step 3 of the grievance procedure.
If back pay is ordered, interim earnings will be set off against the total amount of back pay due. Interim earnings will include unemployment compensation benefits and any other monies received during the period covered by the claim; provided, however, that earnings that would have been received, had active employment at the University been continuous, will not be allowed as a set-off against any back pay ordered. In the case of a discharge, the employee has the duty to mitigate the amount of his/her back pay.
Section 10.6 Union Responsibility. The Union may process, adjust
or settle any grievance at any step of the grievance procedure.
Employer Position
The Employer maintains it had
just cause to discharge A__. Its main arguments in support of that position are
summarized below:
1. The Grievant abused the trust
the University placed in him as a police officer. While using the Rockefeller
Chapel computer to access pornography he neglected his assigned duties. The
University can therefore no longer trust him to perform tasks that require
access to locked buildings and offices when no one else is present.
2. Reverend Boden’s computer
contained her private files, which were secured within the confines of her
locked office. By using her computer without permission, the Grievant violated
that security.
3. The Grievant used the
Computer to view highly offensive pornography. He shopped on-line for videos like
“FistFuck Supershow Fisting & Anal Fisting,” and sought “dates” with women
who used screen names like “dik4me69” and “Illinois slut.”
4. The Grievant engaged in
immoral conduct during working hours on University property. He intentionally
misused information processing systems. Overall, his conduct warranted
immediate discharge under the Department’s Personnel Policy Guidelines.
5. The Grievant also violated
the University’s Eligibility and Acceptable Use Policy for Information
Technology because his “ancillary use” of the computer became visible to
Reverend Boden.
6. The Grievant claims he
thought he could use the computer to access the internet because the University
offers free web browsers in libraries, dorm lobbies, and the student commons
lobby. That claim is ludicrous. There is a significant difference between a
computer locked in a church office and one located in the student commons
lobby.
7. The Grievant’s claim about
not understanding the University’s technology policy is also not believable.
Besides, General Order 00-002 clearly prohibits the accessing of information
not relevant to the employee’s assigned task.
8. According to Sergeant
McCarrell, a proper premises check of Rockefeller Chapel takes twenty minutes.
The Grievant obviously agreed with that estimate, since on the dates in
question his activity log entries showed that he spent from 17 to 25 minutes to
complete that assignment. In contrast to those entries, the Grievant testified
that it really only takes 10 or 15 minutes to do the Rockefeller premises
check. No matter which estimate is chosen, though, the Grievant’s documented
computer usage on February 2, 3, 16, 17 and 24 left him with only 2-5 minutes
to perform a premises check each night. Undeniably, then, the Grievant
neglected his duties in order to surf sexually titillating sites on the
internet.
9. The Grievant admitted using Reverend Boden’s computer to check his
personal e-mails and do on-line shopping, but not to access pornography. But it
is clear from the sites he visited that he used Boden’s computer to peruse the
sexual interest, sexual activity and sexual accessories questionnaires of women
who had profiles on “Adult Friend Finder.” Computer records indicate that he
shopped for DVDs with such titles as “Fist Uro 2—French Fisting &Pissing
Video.”
10. The Grievant also claims he was the victim of “pop-ups.” But
Director of Enterprise Network Systems and Network Security Bob Bartlett
testified that the site “Sweet Little Blonde” was not a pop-up, and that the
Grievant clicked on pornographic pop-ups such as “neverpay4porn”.
11. The University incurred a
financial cost related to the Grievant’s misconduct, since while it was paying
him to do his job, he was surfing the internet for his own personal pleasure.
Moreover, the Police Department has been embarrassed before the staff of
Rockefeller Chapel.
12. By his misconduct, the Grievant has permanently destroyed the
Department’s ability to trust him. Thus, even though he may have ceased misuse
of University computers upon learning that he had been caught, his integrity as
a police officer has been indelibly tarnished.
13. The Grievant was not a
credible witness. For example, he lied about whether he had performed his
duties on the nights in question.
14. The Grievant’s 22-year
record with the Department does not mitigate the discharge penalty. He received
a 60-day suspension in 1999 for use of excessive force. He was demoted from
Sergeant back to Patrol Officer in 1995 for unsatisfactory performance, and he
received numerous additional reprimands and suspensions for unsatisfactory work
performance. Such a blemished record cannot overcome the seriousness of his
most recent conduct.
15. The Department’s
investigation was fair and complete, and it led logically to the conclusion
that the Grievant was guilty of the charges against him.
16. The grievance should be
denied.
Union Position
The Union asserts that the University
did not have just cause to discharge Officer A__. Its principal arguments in
support of that position may be summarized as follows:
1. The University did not meet
its burden of proving that the Grievant knew his conduct was wrong, and that it
could lead to his termination. For example, according to Director of Network
Security Bob Bartlett, the Use Policy is distributed primarily through the web.
When users sign up for an account, they must electronically acknowledge that
Policy. However, Bartlett was unable to confirm whether the Grievant ever was
made aware of the Policy.
2. Sergeant McCarrell testified
that the Use Policy is distributed to officers who have access to
communications equipment; but the University presented no evidence that its
recipients are advised about the disciplinary consequences of violating
it.
3. The Grievant testified that
he had never been provided with a copy of the Use Policy. Moreover, since he
knew of copy several places across the University where internet access was
free, he reasonably concluded it would be appropriate to use the computer in
Rockefeller Chapel for that purpose.
4. Sergeant McCarrell suspended
the Grievant on April 1, 2003, without obtaining his perspective on the matter.
Just three days later, the Grievant and Union Representative Vanderwal met with
McCarrell’s supervisor, Lee Caldwell. Caldwell informed them at that time that
the investigation had been concluded, and that he was being terminated.
Caldwell also indicated that the termination was based in part on the
Grievant’s prior discipline for accessing 1-900 sex lines. In fact, the
Grievant had received no such discipline.
5. Sergeant McCarrell met with
the Grievant again on April 8th. He claims that the Grievant acknowledged visiting
pornographic websites, and admitted that such conduct was inappropriate. In
contrast, the Grievant claims he made no such admissions and that he was not
allowed to make any statements whatsoever.
6. It is clear from the record
that Sgt. McCarrell did not conduct a fair, impartial investigation. He even
admitted that prior to interviewing the Grievant he thought he was guilty.
McCarrell testified that he did not take a statement from the Grievant because
he “didn’t need it.” Under those circumstances, his “investigation” is
questionable at best.
7. McCarrell did not even follow
University investigatory policies, which state that the investigator will take
written statements from complainants and witnesses. In fact, McCarrell never
took written statements from anyone.
8. McCarrell suspended the
Grievant because he brought a lawyer to the August 1 investigatory interview.
He determined that the Grievant had committed a “gross violation”in doing so,
and that the violation justified an immediate suspension. It is obvious from
McCarrell ‘s conduct that he made up the rules as he went along, wholly
ignoring established investigatory procedures.
9. Bartlett admitted that as a
full time staff member, the Grievant was defined as a regular user of the
University’s computer system. And the Use Policy authorizes such persons to use
the system. Thus, the Grievant’s use of the Chapel computer to send and receive
a modest amount of e-mail was not unauthorized.
10. The Grievant’s on-line
shopping for DVDs was not necessarily unauthorized, especially since the Use
Policy cites as acceptable usage the making of doctor appointments and travel
arrangements, and the creation of personal websites.
11. The University’s lawyer
suggested that because the sites viewed were sexual in nature, they were
pornographic. But her own opinion on that subject is irrelevant. A University
policy defining pornography would be more meaningful, but one does not
exist.
12. Reverend Boden allegedly
reported she knew her computer had been used by someone else because of
“something that popped up on the screen”. But the University never identified
what that pop up might have been. And again, Sgt. McCarrell took no written
statement from Boden. Besides, the Grievant had no control over whatever “pop
up” Boden may have seen. He was discharged on the one hand for violating a rule
he did not know about, and on the other for a subsequent event (i.e., the pop
up becoming “visible” to Boden) over which he had no control. It was the second
event that apparently converted his authorized computer usage to restricted
use.
13. There is no mention of
privacy in the Use Policy. Rather, it places upon the computer user the onus to
protect passwords and safeguard against unauthorized use. Thus, if Reverend
Boden were concerned about protecting private information, she should have
secured that information, saved it to a disc, or placed a password on her
personal data.
14. Despite Sergeant McCarrell’s
and University advocate Waintroob’s opinions with regard to what constitutes
pornography, the fact remains that they do not formulate University policy.
Neither are they the arbiters of propriety.
15. The University presented no
evidence of any disciplinary action taken against any other employee for misuse
of its computer system. And Sgt. McCarrell acknowledged that no other police
officer has ever been disciplined for computer usage. Thus, the University did
not demonstrate that the Grievant’s termination was not discriminatory.
16. The only disciplinary
actions taken against University police officers involved auto accidents—i.e.,
misuse or abuse of University equipment. Most of those officers received
written warnings; one was suspended for a day. Since the computer at issue is
also University equipment, evenhandedness requires that if the Grievant misused
it he should have received a penalty significantly less severe than
termination.
17. The Use Policy notes four
types of serious computer misuse. Use of the internet is not among them.
Moreover, while Sgt. McCarrell proclaimed that accessing porn is a
dischargeable offense, he also acknowledged that a warning would have corrected
that behavior. Once the Grievant was informed that he could not use the
computer, he did not use it again.
18. When stripped of its
rhetoric, the University’s action was an overreaction to the “horrid” offense
of being sacrilegious in Rockefeller Chapel.
19. Sgt. McCarrell made no
effort to determine whether the Grievant made proper premise checks on the
dates in question. And there were no reports of any problems or irregularities
on those dates. McCarrell and the University assume that because the Grievant
engaged in one activity (i.e., using the computer), he could not have engaged
in another (i.e., the premises check). But there is simply no proof to indicate
that the premise checks were not done. McCarrell admitted he had not done one
himself in thirty years, and he did not do a practice premises check at
Rockefeller Chapel to determine how long it should take.
20. The University has the
burden of proof in this employee discipline case. It has failed to meet it.
Accordingly, the grievance should be sustained. As a remedy, Officer A__ should
be reinstated with full back pay and benefits.
Opinion
The Burden of Proof
As the Union pointed out in its
comprehensive and spirited defense of the Grievant, the Employer has the burden
of proof in this employee discipline dispute. It must show by a preponderance
of the evidence that it had just cause for its decision to terminate him on
April 25, 2003. After careful study of the evidence, the Arbitrator has
concluded that the Employer’s burden of proof has been met. The reasoning which
led to that conclusion is set forth in the following pages.
Inattention To Duty
The Grievant was terminated for two reasons: (1) inattention to duty,
and (2) inappropriate/unauthorized use of University information systems. With
regard to the first reason, the evidence is the record is both straightforward
and convincing.
The Grievant was responsible for
doing a premises check at Rockefeller Chapel. That check was of obvious
importance, or his superiors would not have assigned him to do it on a regular
basis. Indeed, given the nature of the tasks associated with the premises check
(e.g., check for leaks, temperature abnormalities, signs of forced entry; test
the alarm system, etc.), its completion was essential to protecting the
integrity of the Chapel and its contents.
Sergeant McCarrell testified
that a premises check should take around 20 minutes. The Grievant, whose
experience with doing premises checks of Rockefeller Chapel is much more recent,
testified it should take only 10-15 minutes. In spite of that claim, however,
the data he entered in the “activity log” reveal that it took the Grievant
anywhere from a low of 17 minutes on February 2nd to a high of 25 minutes on
February 3rd to complete a premises check of the Chapel. On other occasions
(February 10th, 16th, 17th and 24th) he indicated in the log that the premises
check had taken 20 minutes. It therefore appears that despite the Grievant’s
claim, McCarrell’s estimate is the more accurate. Moreover, comparison of the
Grievant’s claim under oath against the actual data he recorded in the activity
log calls his credibility into serious question.
Having established from the
record that it should take about 20 minutes to complete a premises check of
Rockefeller Chapel, the Arbitrator turns now to the Grievant’s documented
activities on the dates at issue: [4]
February 2, 2003. The Grievant
was at Rockefeller Chapel from 12:15 a.m. to 12:32 a.m. (dispatch card). He
claims to have performed the premises check from 12:18 a.m. to 12:35 a.m.
(activity log). Reverend Boden’s computer was used from 12:19 a.m. to 12:30
a.m., including visits to the “swingersingles. com” site (network log). The
Grievant reported to the dispatcher that he left Rockefeller Chapel at 12:32
a.m. (dispatch card). Analysis of the foregoing times reveals first that they
conflict with each other. How, for example, could the Grievant have been
involved in a premises check until 12:35 a.m. when the dispatch card indicates that
he left the Chapel at 12:32? And how could he have been doing a premises check
at the same time he was surfing the net? The logical conclusion is that the
Grievant did not complete the premises check—even though he reported that he
did.
February 3, 2003. The Grievant
was allegedly in the Chapel from 12:19 a.m. to 12:39 a.m. (dispatch card).
Curiously, he claims to have done the premises check from midnight to 12:25
a.m. (activity log). But Reverend Boden’s computer was used from 12:23 a.m. to
12:36 a.m., including visits to “friendfinder.com.” Though the Grievant was
inside the Chapel for only 20 minutes, the alarm record indicates he was in
Boden’s office for 13 of them (12:23 a.m. to 12:36 a.m.). Since he left the
premises at 12:39 a.m. (dispatch card), the Grievant only had an apparent three
minutes to perform the premises check. Obviously, it would have been impossible
to complete it in that short period of time.
February 10, 2003. The Grievant was reportedly present at a Rockefeller
from 12:19 a.m. to 12:39 a.m. (dispatch card). He claims once again that he did
the premises check from midnight to 12:25 a.m. (activity log). But Reverend
Boden’s computer was used during the 13 minutes from 12:23 a.m. to 12:36 a.m.
(network log). The “adultfriendfinder” site was visited, as were the following
profiles: “SexyChicagoGirl,” “kwicksilverfox,” “halley,” “dik4me69,”
“suckng94,” “rapture5254,” “always sticky,” “Illinois slut,” “filly female,”
“kid1975,” “delishus55,” “MeWantHugs,” “ibfun4u 2have,” and “naughtyldy469.” It
is apparent from the robust usage the Grievant gave the computer during those
13 minutes that he was not simultaneously conducting a premises check of
Rockefeller Chapel. It is also apparent from the evidence documented in this
paragraph that the Grievant only had about 7 minutes to complete the premises
check. Even by his own testimony, that is just not possible.
Other Dates. Similar results
emerge from study of the data documented in the dispatch cards, activity logs,
alarm logs, network logs and computer histories for February 16, 17, and 24,
2003. Those data reveal that the Grievant was visiting various websites on
Reverend Boden’s computer while by his own records he claimed to have been
performing premises checks of Rockefeller Chapel.
The Arbitrator concludes from the foregoing discussion that the
Grievant could not possibly have had enough time to complete his assigned
duties (i.e., the premises checks) because he was using the Chapel computer to
check his personal e-mail and shop for DVDs. [5] But the activity logs
completed by the Grievant himself for the dates in question indicate that he
completed all of the premises checks. Given the credibility questions raised by
the contrast between the Grievant’s claims and documented evidence in the
record, the Arbitrator concludes that he repeatedly and deliberately neglected
his assigned duties while he used Reverend Boden’s compute for conducting
personal business.
Clearly, the Grievant broke the
element of trust so necessary to being effective as a campus police officer. He
claimed to have completed his assigned tasks, yet the Employer’s detailed
records reveal that he did not do so. Moreover, the tasks at issue involved
campus safety and security. By not completing them as assigned, the Grievant
jeopardized the integrity of Rockefeller Chapel and all of its contents.
Inappropriate/Unauthorized
Computer Use
Given the Grievant’s damaged
credibility, the Arbitrator is not persuaded by his claim that he did not know it
was inappropriate to use Reverend Boden’s computer. After all, if he knew of
other campus locations where he was authorized to access the internet for free,
why did he not take advantage of those opportunities during a break? The
obvious answer seems to be that he wanted to use a computer where he could
check his e-mail messages in clandestine fashion. Whether one characterizes the
sites he visited as pornographic or not, he was a married man trying to “hook
up”with women for “dates.” Perhaps that explains why the Grievant engaged in
those activities in a locked, private office in the dark of night. In any
event, the Grievant is an intelligent, experienced police officer. It simply
goes without saying that he understood he was on duty and should have been
working—not perusing the internet for personal reasons.
Concluding Comments
A few additional elements of the record deserve discussion here. For
example, the Union argued that Sgt. McCarrell’s investigation was flawed
because he suspended the Grievant before hearing his side of the matter. The
Arbitrator has considered that argument carefully, but does not find it to be
persuasive. First, the University could easily have reinstated the Grievant
with back pay if it later learned that he was innocent of the charges against
him. Second, there was documented evidence in the record to prove that the
Grievant could not possibly have completed the premises checks for which he had
claimed credit. McCarrell cannot be faulted for considering that evidence to be
iron-clad. And third, while it may appear to some observers that McCarrell
rushed to judgment, the Grievant ultimately had the benefit of a full
evidentiary hearing, with counsel, before a neutral arbitrator. That impartial
process has generated the same conclusion reached by McCarrell about eight
months earlier. In other words, McCarrell’s investigation—however flawed it
might have been—did not do injustice to the Grievant.
The Arbitrator also recognizes
that the parties have differing interpretations of the University’s computer
Use Policy. That is understandable, given its somewhat generic language and the
speed at which computer technology changes. But the intricacies of that Policy
are less significant to the outcome of these proceedings than the egregious
nature of the Grievant’s conduct. He spent a considerable amount of time
engaged in personal business when he should have been performing premises
checks at Rockefeller Chapel. Indeed, since there was no other patrol officer
assigned to that same area on the Grievant’s shift, the work went undone. The
Grievant’s inattention to duty could therefore have had disastrous
consequences.
The Union also argued that the
Grievant was discriminated against, because other officers who have misused
University equipment were not terminated. The Arbitrator disagrees. As noted,
the Grievant’s conduct was extremely serious. It was calculated, deliberate and
clandestine. Moreover, the Grievant’s role as a police officer makes it
essential that he be trustworthy. His on-duty behavior on February 2, 3, 10, 16
and 17, 2003 demonstrated that he is not.
The Arbitrator is particularly mindful of the Grievant’s long service
with the University Police Department. I note as well, though, that his work record
is far from pristine. And again, the nature of the conduct for which he was
terminated is most serious. On balance, the Grievant’s work record is just not
sufficient to overcome the magnitude of that conduct. I therefore conclude that
termination was well within the range of appropriate disciplinary actions, and
that the University cannot be faulted for selecting it. Moreover, given the
Grievant’s breach of trust, the University cannot be faulted for concluding
that he could no longer function independently, without direct supervision, as
a campus police officer.
Award
After careful study of the record in its entirety, including all of the
evidence and argument submitted by both parties, the Arbitrator has decided
that the University had just cause to discharge Officer A__. The grievance is
denied.
Notes:
1. Reverend Boden is also the
Dean of Rockefeller Chapel.
2. During the arbitration
hearing Officer A__ testified that “Hazwhopper” was not a profile he had
used.
3. The parties stipulated that
the Arbitrator should consider only the Grievance Procedure (Article X) and the
Management’s Rights provision (Article IV) of their January 29, 2002 through
January 28, 2005 collective bargaining agreement.
4. Sources listed parenthetically.
5. By his own admission, he used
the computer for those purposes.