Administrative Services

EMPLOYEE RELATIONS

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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.

1997-98

Louis Solnosky v. Department of Banking and Finance. (NAPE – 1.5, 4.5 & 7.10) Louis Solnosky filed a grievance in which the Appellant alleges that as a non-exempt employee, he should be paid for all travel time from his home to various job sites, while the Respondent claimed that the field office was not the normal assigned work site. Both parties mutually agreed to have John P. Glynn serve as Arbitrator. The Appellant believed that his office in Omaha was his normal work site and that travel to any financial institution should be considered work time, even if he does not go to the office first. The Respondent’s Policy #A 22, does offer work time compensation for some travel, but is restrictive to just one hour, even if the trip was from Omaha to Lincoln.

The Arbitrator found that the Policy #A 22 was in conflict with the Labor Contract and that the Appellant’s Omaha office was the normal work site and therefore, any travel to another location should be considered work time. It was the Arbitrator’s ruling that the Appellant be awarded 63.5 hours of overtime pay at his then current rate from April 27, 1996 to February 8, 1997, plus any travel overtime since February 8, 1997.

Thomas Ritchie v. Department of Social Services. (NAPE 4.10.9 and 10.1) Thomas Ritchie filed a grievance with regards to his termination as a Child Protective Service worker in Fremont, Nebraska, on October 26, 1995, and both parties mutually agreed to have John P. Glynn serve as Arbitrator. The Appellant was employed by the Agency for 14 years prior to his dismissal. The Appellant was charged with inefficiency, incompetence and negligence in the performance of duties, failure to comply with State rules and statutes, failure to maintain satisfactory relationships with the public, acts or conduct which adversely affects the employee’s performance, and workplace harassment. The Respondent alleged that the Appellant dated several clients, offered promises in return for sexual favors, and failed to properly investigate several allegations of child abuse.

The Arbitrator found that the testimony of several customers and previous customers of the Appellant to be credible and the Appellant’s version relating to the facts was not. The Appellant’s actions were just cause for discipline. Considering the power of his position with his customers, and the nature of the actions, the dismissal was also for just cause and the appeal was denied.

Steven Ems v. Department of Public Institutions. (NAPE Articles 3, 4 and 10) Steven Ems filed a grievance with regards to his termination as a Security Specialist II at the Lincoln Regional Center, and both parties mutually agreed to have John P. Glynn serve as Arbitrator. From the period of April 23, 1995, to April 19, 1996, the Appellant received six notices of allegations regardsing work place harassment and client abuse, and was issued discipline ranging from written warnings to suspension, and finally dismissal. The Appellant was a nine-year employee and had only one disciplinary action prior to April, 1995. The Appellant suffered a closed head injury on the job in June, 1994, and it appeared that the behavior of the Appellant toward co-employees, supervisors and patients made a drastic change after the injury.

The Arbitrator found that the evidence presented proved that the allegations of workplace harassment were well founded and that the possibility of the closed head injury was not a mitigating factor, and that all employers may hold all employees, disabled and non-disabled, to the same performance and conduct standards. The Respondent’s action of termination was for cause and was based on the nature and severity of the infractions.

Dusty Rayhel v. Department of Correctional Services. (NAPE 10.1) Dusty Rayhel filed a grievance with regards to a 10-day disciplinary suspension without pay issued by the Respondent and both parties mutually agreed to have John P. Glynn serve as Arbitrator. The Appellant was alleged to have violated workplace harassment policy by making sexual comments to a co-worker during a week-long training session. The allegations were investigated and Rayhel admitted to making one of the comments. The Respondent offered evidence that showed 11 employees were charged with similar offenses and five received like or more severe disciplinary action. The Appellant previously received six-months probation for a similar offense just eight months prior.

The Arbitrator found that the alleged work place harassment had been proven and the actions of the Respondent were for just cause. The 10-day suspension without pay was also progressive and the appeal was denied.

Howard Bartee v. Department of Correctional Services. (NAPE – 4.10) Howard Bartee filed a grievance in which he alleged that the State refused to reschedule his days off to accommodate his Nebraska Army National Guard weekend duty requirements and both parties mutually agreed to have Martel Bundy serve as Arbitrator. The Appellant’s normal work week was Friday through Tuesday, with Wednesday and Thursday off. Under state and federal law, an employee must be permitted to attend weekend military training. In accordance with the law, the Agency allowed the Appellant to attend his training, but refused to reschedule his days off, resulting in a three-day work week. The Agency stated that it will only reschedule days off, if there is another employee who is willing to trade or if it benefits the Agency. The Appellant contended that several other employees were allowed to change days off, but the Agency showed that that was a mistake, and it was corrected to comply with policy.

The Arbitrator found that the Appellant has not been treated differently from other employees and that he failed to establish by a preponderance of the evidence that the Agency had an official policy to grant such requests. The denial of the Appellant’s requested schedule change was in accordance with all applicable state and federal laws and conforms to the labor contract, and therefore, the grievance was denied.

Ray Connot v. Department of Roads. (NAPE Articles 4, 10 and 22) Ray Connot filed two grievances with regards to his 5-day suspension and ultimate termination by the Department of Roads, and both parties mutually agreed to have John P. Glynn serve as Arbitrator. As a result of a temporary employee's exit interview, the Agency conducted an investigation which found the Appellant to have violated certain work rules and operating instructions. The Appellant was given a 5-day suspension without pay following the predisciplinary meeting. The Appellant was then alleged to have threatened the former employee, which was a direct violation of the disciplinary letter. The Appellant was terminated following that predisciplinary meeting. The Appellant alleges that he was not given due process and progressive discipline.

The Arbitrator found that the Appellant was given due process in notification of alleged violations in both situations and the hearings were conducted in the proper manner. The evidence presented supported the allegations and actions of the Agency, and therefore, the grievance was denied.

Frank Bruyette v. Department of Correctional Services. (NAPE Articles 3, 4, and 5) Frank Bruyette filed a grievance with regards to his termination by the Department of Correctional Services (DCS), and both parties mutually agreed to have Paul Caffera serve as Arbitrator. The Appellant was terminated because of a federal law, prohibiting firearms and ammunitions being provided to persons convicted of a domestic violence crime. The Appellant had such a conviction, but asked that the Agency allow him the time to have the charge set aside. The Agency, through the State Attorney General's office, found the statute cited by the Appellant with regards to having the charge set aside, had been repealed, and terminated the Appellant. Within two months, the charge was set aside by the Lancaster County Court.

The Arbitrator found that the Agency had cause to terminate the Appellant's employment and the termination decision was made in good faith. The Arbitrator also found that since the court set aside the conviction, it would be inappropriate for the Agency to use the issue of this past history in future actions. The Arbitrator ordered that the department remove any references to the termination from the Appellant's personnel file and not to use the Appellant's previous conviction, nor termination, in any future disciplinary actions.

Jeffrey Bollman v. Department of Social Services. (NAPE Articles 3, 4, and 10) Jeffrey Bollman filed a grievance with regards to his termination by the Department of Social Services (HHS), and both parties mutually agreed to have Sharon Imes serve as Arbitrator. The Appellant was alleged to have violated the workplace harassment policy, acted inappropriately toward his team leader, and failed to maintain a satisfactory working relationship with another employee. The Appellant was alleged to have made suggestive comments to a co-worker at a training session and also shouted and used profanity to his team leader. The Appellant was notified of his termination and was advised that he had violated Nebraska Classified Personnel Rules and Regulations. The Appellant alleged that he was not given due process, the discharge was too severe and was without just cause.

The Arbitrator found through testimony, that the evidence was sufficient to establish that the Appellant had acted inappropriately toward a co-worker and the team leader. The Appellant was not denied his due process and the evidence was insufficient to find that the Appellant violated the Workplace Harassment policy. The Arbitrator ruled that the termination was too severe and ordered the Agency to reinstate the employee, but that the Appellant serve a 30-day suspension without pay first, and then serve a six-month probation.

Linda Sand v. Department of Health and Human Services. (NAPE Articles 1, 3, 4 and 7) Linda Sand filed a grievance claiming the Department of Health and Human Services (HHS) should pay mileage and overtime for travel to an alternate work site. Both parties mutually agreed to have Sharon Imes serve as Arbitrator. The Appellant, who lived in Lincoln, normally worked in Seward, Nebraska, and on several occasions, traveled to another location to attend training. The Appellant requested overtime and mileage from her home to another work site in Lincoln for the dates in question and was denied. The Appellant alleged that the Agency did pay another employee for similar travel.

The Arbitrator found that the Agency did not violate the contract when it denied the overtime pay, but was in violation for not reimbursing the Appellant for the mileage. It was therefore ordered that the Agency pay the mileage.

Tracy Nelson v. Department of Health and Human Services. (NAPE Articles 3, 4 and 10) Tracy Nelson filed a grievance regardsing her disciplinary probation by the Department of Health and Human Services (HHS), and both parties mutually agreed to have Sharon Imes serve as Arbitrator. The Appellant was alleged to have refused mandatory overtime to fill in for other employees who called in sick. The least senior employee refused the overtime, as did the Appellant. The Appellant was given disciplinary probation, while the least senior employee received a verbal counseling. The Appellant alleged that the Agency treated her differently than other employees. Both the least senior employee and the Appellant had refused overtime in the past.

The Arbitrator found that there was insufficient evidence to confirm that the Staffing Coordinator complied with C.7.11 of the labor agreement when she attempted to recruit off-duty employees for voluntary overtime. The Arbitrator ordered that the disciplinary action be reduced to a written warning.

Roger Davis v. Nebraska Military Department. (NAPE Article 10) Roger Davis filed a grievance regardsing his termination by the Nebraska Military Department, and both parties mutually agreed to have Brad Ashford serve as Arbitrator. The Appellant was alleged to have made over 370 phone calls on the DSN system at a total charge of $129.60. It was also alleged that the Appellant made additional calls using names other than his own. The Appellant alleged that he was not trained in the use of the DSN system and was not aware that calls to Omaha would incur charges.

The Arbitrator found that the investigation in this matter was not handled properly, and several aspects were not checked, including the Appellant's work site. The Arbitrator also found that the decision to terminate was based on the total number of calls and not whether the Appellant made them or if they were official business. The Arbitrator ordered the Appellant be reinstated with full back pay.

Erin Egan v. Department of Correctional Services. (NAPE Articles 3 and 9) Erin Egan filed a grievance when the Department of Correctional Services (DCS), did not promote her to Unit Caseworker position. Both parties mutually agreed to have Paul Caffera serve as Arbitrator. The Appellant had been disciplined the preceding fall and received a written warning. When the Appellant applied for a promotion, she was the most qualified and was told she would be hired into the position. Before the promotion was official, she was notified that because of her previous disciplinary action, she was not eligible for the promotion. While this appeal was awaiting hearing, the Appellant received the promotion.

The Arbitrator found that Article 9 (Transfers, Promotions and Filling Vacant Positions) of the contract covers this area and that Article 3 (Management's Rights) does not, and therefore, the Agency lacks the authority to prohibit an employee who has been subject to discipline from being considered for promotion. The Arbitrator ordered the Agency to adjust the Appellant's seniority date to conform with the first possible position and that she be given the difference between the earnings she did receive and what she should have received.

Neal Sandoz v. Department of Correctional Services. (NAPE Articles 3, 4 and 9) Neal Sandoz filed a grievance when the Department of Correctional Services (DCS), did not complete a lateral transfer for the employee. Both parties mutually agreed to have Sharon Imes serve as Arbitrator. The Appellant, and five other co-workers were notified that they would be laterally transferred to Treatment Security Specialist positions. The Agency later denied the transfers of four of the employees, including the Appellant, and cited that the Agency only budgeted for paying employees at the minimum permanent level. The Agency claimed it was a business need and was within the parameters of the contract.

The Arbitrator found that all six employees qualified and were notified of the transfer, then later four were denied. The Arbitrator stated that business necessity was with regards to eliminating positions or assigning more responsibilities to an existing position in order to eliminate another position. It was determined that the State did violate Article 9.1 when it failed to offer the Appellant the newly created position and was ordered to immediately transfer the Appellant to that position and pay back wages and benefits he may have lost from the time he should have been transferred.

Bonnie Graves v. Department of Roads. (NAPE Article 10) Bonnie Graves filed a grievance regardsing her termination by the Department of Roads, and both parties mutually agreed to have Brad Ashford serve as Arbitrator. The Appellant was alleged to have taken gasoline from the State pumps and washed her personal car in the State car wash, which the Agency stated was a violation of the Department's Rules and Regulations. The Appellant admitted to taking gasoline from the State pumps for her personal car, but added that her State car was being repaired and thought it was appropriate, since she was using her personal car for business.

The Arbitrator found that since the Appellant was using her personal car for business and was traveling to another job site, the unauthorized use of gasoline did not rise to the level of a violation that should merit termination. The Agency failed to show that this was a pattern of behavior and ordered the Appellant back to work with full back pay and benefits.

James Hart v. Department of Correctional Services. (NAPE Article 10) James Hart filed a grievance regardsing his termination by the Department of Correctional Services, and both parties mutually agreed to have Charles Clark serve as Arbitrator. The Appellant was alleged to have failed to obey orders, rules or regulations; performed insubordinate acts and exhibited conduct inappropriate for a State employee. The Appellant allegedly confronted a co-worker in a dominating manner and the co-worker resigned, and then the Appellant lied to his supervisor about the matter. The Appellant later admitted to the lie, apologized to both the co-worker and supervisor and offered his own resignation. The supervisor recommended, and was supported by the personnel administrator's recommendation, that the Appellant be given a 5-day suspension. The Agency director refused the recommendations and terminated the Appellant.

The Arbitrator found that all of the incidents as reported, did occur, but that according to the agency's disciplinary abstract, no one had been terminated previously, for the same or similar offenses. The Arbitrator also found that there was insufficient evidence to discharge the Appellant according to just cause and ordered the Appellant to serve a 5-day suspension and then be returned to work with back pay and benefits.

Robert Sweet v. Department of Administrative Services. (NAPE Article 10) Robert Sweet filed a grievance regardsing his termination by the Department of Administrative Services, and both parties mutually agreed to have John P. Glynn, Jr. serve as Arbitrator. The Appellant was alleged to have conducted illegal gambling operations at his work site and was cited with two misdemeanor offenses. The Appellant was charged by the State with failure to comply with statute, rules and regulations; improper use of State property; and acts or conduct which adversely affects the employee's performance. The Appellant alleged that the state violated the contract in that the termination was without just cause.

The Arbitrator found that the evidence did support the allegations and that just cause did exist. He also found that the level of discipline was not too severe for the offense and dismissed the grievance.