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.
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  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.”  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 
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.
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.
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.
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: 
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.  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.
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.
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.
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.