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.

1998-99

Jeannie Lyons v. Department of Roads, #1 & #2. (NAPE – 1, 3, 8 & 10) Jeannie Lyons filed a grievance with regards to disciplinary probation and termination by the Department of Roads. Both parties mutually agreed to have Paul Caffera serve as Arbitrator. The Appellant was placed on disciplinary probation and later terminated for job performance problems. The Appellant was transferred to a position under the supervision of a person that she had filed a sexual harassment charge against. The Appellant was counseled about her performance in front of co-workers and was then placed on probation and transferred. Following an extension of probation, the Appellant was terminated for allegedly violating Classified System Personnel Rules and Regulations. The Union argued that it is a violation to extend probation, which was another disciplinary action, and that it violated the Appellant's due process.

The Arbitrator found that the Agency lacked good judgement, if not good faith, in transferring the Appellant to a position where she was supervised by the same person that the Appellant had filed charges against. He also found that the Agency did violate due process in extending the probation, and that the Appellant should not have been dismissed. The Arbitrator ordered the Appellant be immediately placed on the Agency's payroll at the wage she would have been at had she not been terminated. The Agency was ordered to pay all back wages and provide the Appellant with a list of open positions in the same pay grade and reassign the employee. The Agency appealed the decision to the District Court, which modified the Arbitrator's decision and placed the Appellant back in her same position.

Steve Troyer, et. al. v. Department of Correctional Services. (NAPE – 7.9) Steve Troyer filed a grievance with regards to the decision by the Department of Correctional Services not to pay employees "On-Call" wages for volunteering to be part of a calling tree and carrying a pager. Both parties mutually agreed to have Paul Caffera serve as Arbitrator. The Appellant, who filed the grievance on behalf of several employees, volunteered to carry a pager and be part of a Calling Tree for the Agency. The Appellant felt that the Agency should compensate these employees with "On-Call" pay. The Agency argued that since the employees volunteered and were not restricted in movement and were not subject to disciplinary action if they failed to respond, that "On Call" pay was not required. If the employees were called back to work, they would have received appropriate compensation.

The Arbitrator found that the contract does not support the Appellant's claims and that without being restricted by the use of the pager, the employees were not actually "On-Call." The Arbitrator further found that employees could turn their pager over to another employee if they were going to be a long distance away and not suffer adverse consequences. The grievance was denied.

Vicki Wright v. Department of Social Services (HHS). (NAPE – 10) Vicki Wright filed a grievance concerning her disciplinary demotion by the Department of Social Services. Both parties mutually agreed to have Martel Bundy serve as Arbitrator. The Appellant was placed on probation for job performance problems and because of a lack of improvement, was demoted seven months later. The Appellant alleged that the Agency prevented her from meeting her accuracy standards, but the Agency responded that the Appellant never complained about the problems and did not ask for assistance.

The Arbitrator found that the Appellant was provided with training to specifically improve her accuracy and that the Agency had the power to set standards of accuracy. The Arbitrator concluded that the Agency had just cause to discipline the Appellant and that demotion was permissible under the contract. The actions of the Agency were affirmed and the grievance denied.

Don Weichman v. Nebraska Game & Parks Commission. (NAPE – 4) Don Weichman filed a grievance with regards to his termination by the Nebraska Game and Parks Commission. Both parties mutually agreed to have Martel Bundy serve as Arbitrator. The Appellant was placed on probation and then the probation was extended. Neither action was grieved by the Appellant. During the second probationary period, the Appellant was charged with seven separate incidents and terminated. The Appellant argued that the second probation was a violation of the contract, he was not afforded notice of the policies he was accused of having violated, and that the action taken was not in good faith. The Agency offered evidence and testimony to support the charges and alleged that the level of discipline was taken for just cause.

The Arbitrator found that the second probation was a violation, but since the Appellant did not grieve the action at the correct time, it was moot. As for the proper notice, the Appellant was in possession of the manual and that since the language was from the manual, and he did not grieve that issue timely prior to this hearing, he waived his rights. The Arbitrator concluded that termination is permissible under the contract and that due to the severity of the misconduct, the termination is in conformance and the grievance is denied.

Deborah Smith v. Department of Correctional Services #1 & #2. (NAPE – 10) Deborah Smith filed two grievances with regards to a written warning, and disciplinary demotion and reduction in pay by the Department of Correctional Services. Both parties mutually agreed to have John P. Glynn serve as Arbitrator. The Appellant was issued a written warning for driving through the parking lot on her perimeter duty. The demotion and reduction in pay was issued from an alleged incident when the Appellant was on duty at the Control Unit and was observed to have left the hatch doors open. After a confrontation with the Sgt., she was told to write a report, but did not do so until two days later. The Agency contended that she failed to obey orders and was insubordinate.

The Arbitrator found that the post orders for the perimeter duty did not cover the parking lot and testimony varied from other officers as to whether or not employees on perimeter duty could drive through the parking lots. As for the demotion, the Arbitrator found that there was sufficient evidence to support the finding of a failure to obey orders and insubordination. With regards to the written warning, the Arbitrator ordered that it be removed from the Appellant's file, but the demotion and reduction in pay should stand.

Thelma Aronson v. Department of Correctional Services #1 & #2. (NAPE – 10) Thelma Aronson filed two grievances with regards to a 10-day suspension and termination by the Department of Correctional Services. Both parties mutually agreed to have Brad Ashford serve as Arbitrator. The Appellant was given a 10-day suspension for obtaining a police report for someone outside of the State's employment. Her termination was due to an alleged sick leave abuse and a charge of fraternizing with a federal parolee.

The Arbitrator found that the charge of obtaining a confidential police report was supported by fact and the discipline was taken in good faith and for cause. As for the sick leave, the State failed to provide substantial proof that abuse was present. The Arbitrator found that the Appellant was aware of the State's Rules and Regulations regardsing fraternization with a parolee, but the rule also implies that it be a state parolee, and no mention is made of federal parolees. The Arbitrator ordered that the 10-day suspension for the first offense should stand, but the termination was without just cause and the Appellant be reinstated with back pay and benefits.

Patricia Jindra v. Department of Correctional Services. (NAPE – 3 and 10) Patricia Jindra filed a grievance when the Department of Correctional Services (DCS) refused to remove her previous discipline and cited the Nebraska Supreme Court decision in the matter of Thomas McAllister v. DCS. Both parties mutually agreed to have Paul Caffera serve as Arbitrator. The Appellant argued that the McAllister decision, which stated that since the DCS rules and Regulations had not been properly promulgated and were therefore invalid, their use to assess discipline was a violation of due process. The State argued that the court's ruling was not retroactive and that the State acted in good faith and fairly when it disciplined the Appellant.

The Arbitrator found that there was no support to the Appellant's claim that the McAllister decision was retroactive. It is well established that if the court intended the decision to be retroactive, it would have stated so. It was also the Arbitrator's finding that there was nothing in the record to remotely suggest that DCS acted in bad faith. The Arbitrator ordered that the grievance be denied.

Michael Struss v. Department of Health & Human Services Appeals #1 & #2. (NAPE – 3 and 10) Michael Struss filed two grievances when the Department of Health & Human Services (HHS) placed him on probation and later terminated his employment. Both parties mutually agreed to have Charles Clark serve as Arbitrator. The Respondent filed two Motions to Dismiss and cited that the probation was a moot issue since the employee was terminated, and then failed to file his step 3 appeal with the DAS-Employee Relations Division within the time limits set forth by the labor contract. The arbitrator overruled both motions, stating that even though the grievance was filed 51 days after the receipt of the step 2 decision instead of the 15 days required in the contract, it was timely since it was only being advanced and not filed.

In the two appeals, the arbitrator ruled that the Agency needed to prove by more than a preponderance of evidence, and did not prove persuasively, by a preponderance of the credible evidence, that the discipline was for just cause.

The Arbitrator ordered the Appellant be reinstated to his former position, with back pay, less the two week's compensation, but placed on six-months probation. The Agency filed an appeal in District Court and stated that in allowing the second appeal to go forward, the Arbitrator was outside his jurisdiction and changed the contract.  The Nebraska Supreme Court ruled in favor of the District Court and ordered the chosing of a new arbitrator and hearing.

Susan Neal v. Department of Roads. (NAPE - Motion to Dismiss) Susan Neal filed a grievance with regards to an alleged violation of Article 1.6 of the Labor Contract by the Department of Roads. Both parties mutually agreed to have Sharon Imes serve as Arbitrator. The Respondent filed a Motion to Dismiss, based on the fact that the original grievance form was not filed with the immediate supervisor within the 15-days period allowed by the contract.

The Arbitrator found that the incident that gave rise to the Appellant's grievance took place on or about February 12, 1999, and the grievance was not signed until March 8, 1999, and then not delivered to the Agency until March 15, 1999. The Arbitrator's decision was that the grievance was not filed within the time limits set forth in Article 4.5 of the contract, and therefore, the Appellant's rights in this dispute have been forfeited, and the matter was dismissed.