Arbitration Decision Summary
The following Arbitration Decisions regarding employee grievances have been summarized for informational use only. Please be advised that none of the decisions in any of these cases are precedent setting.
Daniel Thornton v. Nebraska Game and Parks Commission: (NAPE -- 9.1) Daniel Thornton filed a grievance appealing the decision to promote another employee, of lesser seniority, to the position of "Park Superintendent I" at the Fort Robinson State Park, by the Nebraska Game and Parks Commission, and both parties mutually agreed to have Martel Bundy serve as arbitrator. The appellant contends that the selectee did not meet the minimum qualifications in the job classification as prepared by Nebraska State Personnel; that both applicants rated "substantially the same" and that seniority should have been considered; and, that the selection process was manipulated by selecting and weighting questions to favor the selectee. The agency testified that the job classification was a guideline, not a requirement and listed as such in the job vacancy announcement document. The record showed that the selectee scored 672 points compared to the appellant’s score of 612, and the 60-point difference equates to an 8-percent difference when compared to the maximum possible points.
The Arbitrator found that the agency has the legal and contractual authority to prescribe the duties of the job position under its control and determine which duties are most essential, and that the members of the selection committee rated the selectee "substantially higher" in all aspects concerning the position's essential duties. The Arbitrator ruled that the decision of the Nebraska Game and Parks Commission to fill the position was made in good faith and is in accordance with Section 9.1 of the NAPE/AFSCME and State of Nebraska Labor Contract.
Randall Chapp, Denise DeBose and Cathy Tallon #3 v. Nebraska Equal Opportunity Commission: (NAPE 1.5 & 10.1) The three appellants filed a grievance contesting the written warnings issued in September, 1994, while they were employed as Investigators at the Lincoln Office of the Nebraska Equal Opportunity Commission (NEOC) and all parties mutually agreed to have Martel Bundy serve as arbitrator. The State contends that the appellants failed to meet the production goal established in June, 1993, of 76 cases per year, or 19 cases per quarter. The NEOC instituted a policy in January, 1994, which mandated discipline for failure of investigators to meet the set goals. The appellants contended that the policy required that investigators be disciplined for failure to meet the goals and also required investigators to make up that deficiency, or be disciplined again, which constituted the possibility of multiple disciplinary actions for the same infraction.
The appellants also testified that included in the same policy issued in June, 1994, was the provision that cases submitted after May 13, but prior to June 1, would be credited for the month of June.
The Arbitrator found that Mr. Chapp submitted nine cases in July and eight cases in August for a total of 17. However, he also completed four cases after May 13, which must then be credited to June, increasing his total to 21 for the quarter. Ms. Tallon was issued a verbal warning in June, 1994, for completing only 16 cases and was required to complete 22 in the next period. She completed 21 cases during that time period, but the 22 cases expectation would be 88 for the year and an unreasonable goal, and she had already been disciplined for failure to complete one of the cases. Ms. DeBose completed 16 cases during the quarter and two cases after May 13.
The Arbitrator ruled that Mr. Chapp had actually exceeded the goal and should have not been issued a written warning. The NEOC's disciplinary policy with regards to Ms. Tallon was unreasonable to the extent that it required Tallon to make up cases or be disciplined again. Ms. Tallon should not have been issued a written warning. Ms. DeBose completed 18 total cases during the quarter and the written warning was warranted, since she missed her goal by one case. The written warning should be revised to indicate she completed 18, not 16 cases.
Randall Chapp #2 and Ronald Shepherd v. Nebraska Equal Opportunity Commission: (NAPE -- 3.1 & 10.1) Randall Chapp and Ronald Shepherd filed a grievance contesting the termination of their employment on March 31, 1995, as Investigators at the Lincoln Office of the Nebraska Equal Opportunity Commission (NEOC) and all parties mutually agreed to have William Spellman serve as arbitrator. Both appellants were charged with negligent or improper use of State property, equipment, or funds, or conversion of same to one's own use, while Mr. Chapp was also alleged to have unlawfully accessed, without permission, files in another employee's computer and to have interfered with the work and statutory functions of the agency. Files and photocopies of documents belonging to the director were found in Mr. Chapp's briefcase during an investigation and comments were allegedly made by Mr. Chapp as to the fact that he had access to supervisors' offices for the purpose of removing documents. The NEOC concluded that the actions of the appellants caused a hostile work environment and was just cause to be terminated. The appellants contended that all of the respondent’s actions were taken in retaliation for the appellants' conversations with legislators; the appellants were not informed of the specific charges prior to the discipline; and, the NEOC was required the Nebraska State Personnel Board and the Federal District Court to reinstate the appellants. Several witnesses testified that the director had been in Mr. Chapp's office prior to finding the files and photocopies in his briefcase and that many of the statements by the respondent’s investigator and one of the commissioners were inaccurate.
The Arbitrator found that the appellants did not know what rule or order was violated at the time of the Investigatory suspension or predisciplinary hearing. Questions of accuracy were raised regardsing the agency's investigative report, which were substantiated when the respondent’s own witnesses denied making statements that appeared in the report. There is nothing in the record that showed the employees were warned about attitude, gossiping, bragging, teasing or any other acts that allegedly contributed to an intimidating work place. The State was not able to prove the charge concerning access to computer files, in fact, several of the dates in question were prior to Mr. Chapp's employment. The Arbitrator found that one can only enforce discipline for behavior deemed to be disruptive and not just those that may irritate the Director or members of the commission. The degree of discipline as noted earlier does not correspond to the proven offenses. The record does show that the discipline administered was not for just cause and that progressive discipline was not applied as required by Article 10.1 of the NAPE Labor Contract.
The Arbitrator ruled that the investigatory suspension was justifiable given the degree of conflict, allegations, and suspicious statements made by the grievants, but termination violated the contract and was not for just cause and the discipline was not progressive in nature. The respondent was ordered to reinstate the appellants to their prior positions with the NEOC, with full contractual benefits and back pay from the date of termination.
Roger Doerr v. Nebraska Department of Correctional Services: (NAPE -- 3.1 & 10.1) Roger Doerr filed a grievance contesting the termination of his employment on November 8, 1995, as a Mental Health Counselor I at the Nebraska Correctional Treatment Center (NCTC) by the Department of Correctional Services (DCS) and both parties mutually agreed to have Sharon Imes serve as arbitrator. The agency contended that the appellant violated Administrative Regulations for failure to obey orders, rules or regulations and that he was derelict in the performance of his duties for having failed to report an alleged incident of workplace harassment, and for providing false or misleading information to a manager, supervisor or superior employees for having failed to report the incident. The appellant had no record of discipline prior to this incident.
The Arbitrator ruled that the evidence is insufficient to find the appellant provided false or misleading information during the Department's investigation as to whether the harassment had occurred. There is just cause to discipline the appellant based upon his failure to report the incident, but there is not just cause for termination. The discharge is to be reduced to a six-month disciplinary probation and the DCS is ordered to reinstate the appellant and to make him whole for any losses sustained as a result of his discharge from the date of the discharge through the date he is offered reinstatement, less any income earned by the appellant during the interim.
Carol Sheets v. Nebraska Department of Public Institutions: (NAPE -- 9.1) Carol Sheets filed a grievance, appealing the decision to promote another employee to the position of "Activity Assistant" at the Hastings Regional Center, by the Nebraska Department of Public Institutions, and both parties mutually agreed to have Brad Ashford serve as arbitrator. The appellant contended that she rated "significantly the same" as the selectee. The agency testified and produced evidence that the top candidate's score was 84 percent of the maximum and the selectee's score was 74 percent of the maximum, while the appellant’s score was 66 percent. DPI interpreted a difference of 10-percent or less in a test score, as substantially similar, and awarded the position to the second-place finisher. The agency also stated that the appellant’s score was 18 percent below the top score, and therefore, not within the 10 percent criteria.
The arbitrator upheld the Department's decision to award the position to the most senior employee whose score on the interview was 10 percent of the less senior applicant with the highest score on the interview. To award the job to the appellant would be in direct conflict with Article 9.1 of the Labor Contract. The appeal is dismissed.
Dennis Cordry v. Nebraska Department of Public Institutions: (NAPE -- 10.1) Dennis Cordry filed a grievance contesting the termination of his employment on February 21, 1996, as a Developmental Technician II, at the Beatrice State Development Center by the Department of Public Institutions and both parties mutually agreed to have Brad Ashford serve as arbitrator. The agency contends that the appellant displayed actions that were abusive toward a patient in that the appellant "kicked" a patient, causing the patient to fall. The appellant testified that the client had displayed behavior problems prior and dropped to the floor and was unable to get up. The appellant continued that he was "tapping" the patient's foot to assist the patient in standing. None of the witnesses actually saw the patient "kicked," but two testified to a "kicking motion." The witnesses also testified that the appellant helped the client into a chair and there was no evidence of anger by the appellant or physical harm to the client.
The arbitrator found the agency failed to meet its burden of proof that the appellant abused and neglected the client, and finds further that the agency failed to meet its burden of proof that it had just cause to terminate the appellant. It was the decision of the Arbitrator that the appellant be immediately reinstated with full back pay and benefits to the date of the termination, restoration of all other terms of employment and all references to this discipline be removed from his personnel file.
Eugene Fiedler v. Nebraska Department of Environmental Quality #1 & #2: (NAPE 8.4) Eugene Fiedler filed a grievance contesting the termination of his employment on July 19, 1995, as an Environmental Engineer II and a second grievance regardsing withdrawal of vacation leave by the Department of Environmental Quality, and both parties mutually agreed to have John P. Glynn serve as arbitrator. The appellant was serving an original probationary period when he received a marginal performance evaluation prior to the end of his probationary period. The appellant was informed in writing that his original probationary period was to be extended from April 25, 1995, to October 25, 1995. The agency testified that this written notice was placed in the appellant’s "IN" basket on or about April 17, 1995, but the appellant claims that he did not receive the notice until May 5, 1995, well after April 25, 1995, the end of his original probationary period. The appellant requested vacation leave to extend his termination date to August 1, 1995, so that he would be vested in the State Retirement System.
The Arbitrator ruled that the main issue is whether the appellant was a probationary employee at the time of termination. The evidence presented in the Performance Plan Forms signed by the agency and the appellant, constituted notification in writing of the intent to the extension of the original probationary period within the meaning of the articles of the Labor Contract. The evidence also is clear that the written notification was delivered on April 17, 1995, but it is unclear as to when the appellant came into physical possession of the same. The appeals were dismissed on the grounds that at the time they were filed, the appellant was on extended probation and had no grievance rights under the terms of the Labor Contract.
Philip Dani v. Nebraska Department of Correctional Services: (NAPE -- 3.1 & 10.1) Philip Dani filed a grievance contesting the termination of his employment on December 20, 1995, by the Department of Correctional Services, and the parties mutually agreed to have William Spellman serve as arbitrator. The agency argued that contraband had been smuggled into the Lincoln Correctional Center (LCC) from the Diagnostic and Evaluation Center (DEC) during the appellant’s shift and that the refusal of the appellant to strip search inmates returning from the DEC to the LCC was a clear refusal to follow orders and jeopardized security of the facility. The agency added that the appellant had two misconduct violations in the preceding 14 months and had stated that "he would do the same thing" if the situation presented itself again. The Union argued that there was no proof that the contraband entered the institution because of the appellant’s failure to perform the strip search. The Union continued that the appellant was issued a written warning and then terminated for the same incident, which is double punishment. The appellant argued that a "pat" search, rather than a "strip" search, had been done in the past without discipline, but the agency responded that a "pat" search was only allowed with direct supervisory approval.
The Arbitrator ruled that the penalty was not excessive for the offense, since the action of the appellant violated the maximum security of the institution. The arbitrator also found that the termination was carried out in a manner to protect due process rights of the individual, was a just cause discharge, and denied the grievance.
James Ferguson v. Nebraska Department of Correctional Services: (NAPE -- 10.1) James Ferguson filed a grievance contesting the termination of his employment on May 31, 1995, as a Corrections Officer at the Diagnostic and Evaluation Center by the Department of Correctional Services (DCS), and both parties mutually agreed to have Martel Bundy serve as arbitrator. The agency contends that the appellant made an inappropriate racial comment to a fellow employee outside of the workplace, after the appellant and the co-worker were off duty. Both the appellant and the co-worker told the reporting Lieutenant that they are good friends and were joking around. The co-worker testified that he "antagonized" the remark from the appellant by saying "Go ahead, I dare you to say that..." The agency testified that the appellant had been disciplined three times in the last six months, was on probation at the time of the incident, and had been previously disciplined for making improper comments.
The Arbitrator ruled that given the number of previous incidents, their proximity in time and that one of those incidents involved misconduct of a nature similar to that which led to the termination, it must be concluded that a reasonable employer acting in good faith would terminate the appellant. DCS did not violate Section 10.1 of the Labor Contract and progressive discipline was considered.
Debra Dolan, Jan Gipfert and Don Norcott v. Nebraska Department of Roads: (NAPE -- 9.1) The grievance was filed jointly against the Nebraska Department of Roads (DOR), in August, 1995, appealing the decision to fill a job vacancy, "Crew Chief" in the maintenance shop in Sidney, Nebraska, by a person other than one of the appellants, and both parties mutually agreed to have Martel Bundy serve as arbitrator. The appellants contended that the selectee is not qualified to hold the position and that DOR failed to act in good faith and violated Section 9.1 of the NAPE/ AFSCME labor contract. The appellants contested whether the selectee possessed "three years of experience in general highway maintenance" as listed under the heading "Requirements" in the job vacancy announcement; he was of less seniority; the interview process was deficient because there were no predetermined "right" answers; and, the appellants rated "substantially the same" as the selectee.
The agency testified that the selectee had the three years of "general highway knowledge," which included a previous job, and that the seniority consideration only applies if the candidates rate "substantially the same," which was not the case, as all four interviewers rated the selectee first. The agency also testified that since three of the four interviewers were familiar with the duties of the position, the applicants were scored on the "overall" interview.
The Arbitrator ruled that the appellants and the selectee did fill the minimum requirements of the position and the interview did consist of work-related questions. Since all four interviewers ranked the selectee first, with the next closest applicant placing second by only two of the interviewers, the applicants did not rate "significantly the same." The decision of the agency to hire the selectee over the appellants was made in good faith and based upon the factors set forth in Section 9.1 of the labor contract.
Shawn Houlihan v. Nebraska Department of Correctional Services. (NAPE -- 10.1) Shawn Houlihan filed a grievance contesting the termination of his employment on Nov. 9, 1995, as a Treatment Security Specialist at the Nebraska Correctional Treatment Center (NCTC) by the Department of Correctional Services (DCS), and both parties mutually agreed to have Martel Bundy serve as arbitrator. The agency contended that Houlihan was discharged for harassing a female employee and the action was taken in good faith, for cause and in accordance with the Labor Contract. The agency testified that during a three-and-a-half month period, the appellant made a series of telephone calls to the female employee, at work and at home, asking for dates and was informed to stop calling. He also called the female employee into his office for the purpose of showing her a pornographic picture and he conducted an improper investigation relating to allegations by an inmate against the female employee. Houlihan testified that he stopped calling when asked to, that there was no incident with a pornographic picture, and he further stated that he filed an incident report regardsing the inmate's claim, but the inmate denied ever making the accusation. The female employee had resigned and left the State and was therefore, unable to testify.
The Arbitrator ruled that the appellant did act improperly and that such behavior should not go unpunished. When faced with similar circumstances, other arbitrators have determined that reinstatement without pay is appropriate. It appears that DCS has not discharged employees who engaged in misconduct more serious than the appellant's and based upon that fact, discharge was improper. The appellant was reinstated without backpay and benefits, and DCS was ordered to make changes to the appellant's personnel file so that it reflects this decision.
Lester Johnson v. Nebraska Department of Correctional Services. (NAPE -- 3.7 & 10.1) Lester Johnson filed a grievance following a ten-day suspension without pay at the Omaha Correctional Center, for failure to make checks every 30 minutes or every 15 minutes of a suicidal inmate or an inmate under the influence of drugs or intoxicants, and the insubordinate act of providing false information to a superior employee. Both parties mutually agreed to have William Spellman serve as arbitrator. The agency contended that the appellant failed to make required checks of inmates, and two other employees were stationed at a point to observe the areas where the checks were to take place. The agency also alleged that the appellant falsified information on his log to cover up his failure to perform his duties. The Union argued that the witnesses were not positioned in a way to continually observe the gallery or the actions of the appellant. The appellant contends that the checks were made and further, that his due process was denied because there was no comprehensive investigation completed.
The Arbitrator ruled that the respondent’s investigation was sufficient and with the observations of two other employees that reached the same conclusion concerning the actions of the appellant. The State did not discipline the appellant for his admitted action of leaving the door unlocked, and that violation cannot be used to rebut the other violations. To violate post orders and to not check inmates in a timely fashion is a serious offense as is the misleading information to cover-up such a violation. A ten-day suspension without pay was ruled to be an appropriate disciplinary action. The Arbitrator ruled the discipline was not too severe and was in compliance with Article 10 of the labor contract. The action by the State did follow due process and the grievance was denied.
Kyle Woodard v. Nebraska Department of Correctional Services. (NAPE 3.1 & 10.1) Kyle Woodard filed a grievance with regards to his dismissal from the Nebraska Center for Women (NCW), in York, Neb., for failure to report his arrest, and both parties mutually agreed to have Paul Caffera serve as arbitrator. The agency contended that following several counseling sessions, written warnings, and a 10-day suspension in his short tenure at the NCW, the appellant failed to report his arrest to any supervisory personnel. He was placed on suspension and then terminated. The agency testified that the appellant had been under investigation because of an alleged violation involving offering fraudulent information with regards to health insurance and sexual harassment charges by inmates. The appellant testified that he was unable to inform his superiors about his arrest for various reasons. The appellant also contended that he was not aware of the consequences of his failure to report his arrest and that the agency did not conduct a proper investigation.
The Arbitrator stated that he agreed that the State had just cause to discipline the appellant and that dismissal was an appropriate level of discipline given the nature of the appellant's violation and his past disciplinary and performance history. Accordingly, the Arbitrator found that the respondent’s action to suspend and then discharge was warranted and the Grievance was denied.
Bruce Trautwein v. Nebraska Department of Correctional Services. (NAPE -- 7.8 & 7.10) Bruce Trautwein filed a grievance in which he alleged that he had been denied compensation for travel time home, while on call-back status as an electrician at the Lincoln Correctional Center, and both parties mutually agreed to have Brad Ashford serve as arbitrator. The appellant was required to be in an on-call status every 13 weeks, in which he could be required to return to work. He was afforded an additional 60 cents per hour for this, plus time and one-half for work in excess of a 40-hour week. The appellant alleged that the State was not paying him time and one-half for the full time of on-call status. The State contended that it's policy, which differed from other state agencies, would pay time and one-half for actual work time and straight time for one-way travel. Call-back guaranteed two-hours of work credit, but the agency would only count the actual work time as overtime.
The Arbitrator found that the labor contract does not require that the State pay for the trip home while on call, even if the agency had done so in the past. It was the Arbitrator's finding that the agency acted in good faith and the grievance was denied.