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.

2003-04

Judy Hartwig v. Department of Health and Human Services (NAPE - 10.1) Judy Hartwig filed a grievance when the Department of Health and Human Services terminated her employment for numerous allegations of work performance issues. The parties mutually agreed to have Joseph Logan serve as Arbitrator in this matter. The Respondent alleged that the Appellant was abusive to volunteer workers on six different occasions, used a State computer for personal, non-work related purposes, excessive personal use of the State phone system and unauthorized use of overtime.  The Appellant claimed that she was never warned about the behavior or given the opportunity to make improvements and that termination was too severe.   

The Arbitrator found that many of the abusive actions by the Appellant were disruptive to the workplace and that a check of her computer showed 42 non-work related documents.  The Arbitrator also found that the Appellant had been reprimanded concerning personal use of State equipment and had been disciplined twice previously.  The Arbitrator stated that the evidence clearly established that the Appellant's actions over an extended period of time, along with her misconduct toward the volunteers, furnished the Respondent with just cause for termination and denied the grievance.

Lynn Gruis v. Department of Health and Human Services (NAPE - 9) Lynn Gruis filed a grievance when she was not selected for a vacant position by the Department of Health and Human Services for which she believed to have been the top candidate. The parties mutually agreed to have Hugh Perry serve as Arbitrator in this matter.  The Respondent argued that the matter was not grievable and that there was no evidence of bias, while the Appellant contended that she had more years of experience and was not scored correctly during the interview process.

The Arbitrator found that the Appellant's application was originally misplaced and only after the mistake was discovered, she was interviewed for the position, but scored substantially lower in the interview, when she had not been given points for experience working with interdisciplinary teams, while the successful candidate had worked in a clerical support capacity for many years, and scored higher.  The Arbitrator stated that the Appellant was not given a "fair shot" and she had a valid grievance.  The Arbitrator ordered the grievance upheld and that the Appellant be given the right of first refusal to the next promotional opportunity for which she is qualified.  

Paul Hicks v. Department of Correctional Services (NAPE - 10) Paul Hicks filed a grievance when he received discipline in the form of termination from the Department of Correctional Services.  The parties mutually agreed to have John P. Glynn, Jr., serve as Arbitrator in this matter.  A hearing was held to determine if the original appeal was filed in a timely manner according to the labor contract.

The Arbitrator found that the employee was notified of his termination on July 3, 2002, and filed his grievance with the Director's office on July 26th.  According to the contract, the Grievant has 15-workdays to file the appeal of the aggrieved action, and the 15th workday following the notification would have been the 25th of July.  The Arbitrator ruled that the appeal was not filed within the time frame established by the labor contract and dismissed the grievance.

Daniel Culliver-Dodd v. Department of Correctional Services (NAPE - 10) Daniel Culliver-Dodd filed a grievance when the Department of Correctional Services terminated him from his position.  The parties mutually agreed to have William Morris serve as Arbitrator in this matter.  The Respondent alleged that the Appellant failed to report an incident of inmate abuse to his superiors.  The Appellant claimed that he did not report the incident as he feared retaliation.

The Arbitrator found that the Appellant was a member of a team that participated in a forced-move of an inmate, during which time, another member of the team struck the inmate.  The Appellant, along with the rest of the members of the team, failed to report the incident, and following an investigation, each employee was terminated.  Even with the fear of retaliation and the Appellant's good employment record, the Arbitrator stated that this did not outweigh, mitigate or otherwise excuse the failure to report the incident.  The grievance was denied.

John Funkhouser v. Department of Correctional Services #1 and #2 (NAPE) John Funkhouser filed grievance #1 when the Department of Correctional Services revoked the nepotism waiver previously granted to Funkhouser and his spouse, and filed grievance #2, when he was transferred to a different location due to the denial of the nepotism waiver.  The parties mutually agreed to have William Morris serve as Arbitrator in these matters.  The Appellant alleged that the waiver was improperly denied and the institution exceeded it authority under management rights when it transferred him to a different facility.  The Respondent contended that according to the contract, the issuance of a nepotism waiver was totally at the discretion of the Agency Head, and once it was revoked, the transfer was necessary.

Even though the parties agreed that this was not a disciplinary matter, the Arbitrator found that once the Respondent granted the waiver, any revocation is in fact, a disciplinary action and the parties must proceed under the disciplinary process in the contract.  The Arbitrator ruled that the nepotism waiver must be restored, and Appellant must be returned to his work conditions as they existed before the waiver was revoked.  The Arbitrator added that the Respondent may commence a disciplinary action if it determines that the waiver should be revoked.

Pete Troy v. Department of Correctional Services (NAPE) Pete Troy filed a grievance when the Department of Correctional Services issued disciplinary action in the form of a written warning on September 5, 2002.  The parties mutually agreed to have Paul Caffera serve as Arbitrator in this matter.  The Respondent alleged the Appellant was sleeping or in an unattentive state during a staff meeting, and the Appellant contended that he was not sleeping or in an unattentive state.

The Arbitrator found that the investigation of the incident was improper, in that the investigating officer was directed to interview only a select list of attendees and not everyone that attended the meeting in question.  The Arbitrator found that the investigation, in itself, was not flawed, but "the investigation was compromised before it really got started."  Since the investigator was not provided with all of the relevant information necessary to investigate the incident, the procedural safeguards which guarantee just cause standards was not satisfied.  The Arbitrator sustained the grievance appeal, and ordered that the written warning be removed from the Appellant's personnel file, but the Appellant is not entitled to any monetary relief in the form of attorney's fees.

Jennifer Yarina v. Department of Correctional Services (NAPE) Jennifer Yarina filed a grievance when the Department of Correctional Services (DCS) issued disciplinary action in the form of a written warning on October 15, 2002.  The parties mutually agreed to have Paul Caffera serve as Arbitrator in this matter.  The Respondent alleged the Appellant violated the Labor Contract by making inappropriate and derogatory comments about a DCS Sergeant to her husband, also a DCS employee.  The Appellant contended that the conversation with her husband took place at home and did not cause a disruption in the workplace.

The Arbitrator found that the action of the Appellant in this case, was not disruptive to the workplace, since she did not make any of these statements or charges in the workplace.  "If the Appellant is guilty of anything, it is for not bringing the rumor to the attention of her superiors in the chain of command."  The disruption occurred when the husband brought the allegations about the Sergeant into the workplace, and repeated it outside the chain of command and in the presence of other DCS employees.  The Arbitrator sustained the grievance appeal, and ordered that the written warning be removed from the Appellant's personnel file.

Richard Philippi v. Department of Correctional Services (NAPE) Richard Philippi filed a grievance when the Department of Correctional Services (DCS) issued disciplinary action in the form of termination on June 11, 2003.  The parties mutually agreed to have Paul Caffera serve as Arbitrator in this matter.  The Respondent alleged the Appellant violated the Labor Contract when he authored a lewd and derogatory communication to an inmate and was also caught violating post orders by reading a book while on duty.  The Appellant acknowledged he wrote the note and was reading while on duty, prior to the hearing. 

The Arbitrator found the Appellant's story changed during the hearing, when he claimed that he did not write the note, but two witnesses confirmed the fact that he admitted it previously.  The Arbitrator also found the Appellant to have received several previous disciplinary actions in his short tenure with the State.  The Arbitrator stated that given the magnitude of the Appellant's offense and his failure to correct prior deficiencies in response to written warnings, and probation, the Grievance was denied.

Bill Montz v. Department of Correctional Services #3 (NAPE) Bill Montz filed a grievance when the Department of Correctional Services (DCS) issued disciplinary action in the form of a demotion.  The parties mutually agreed to have C. Thomas White serve as Arbitrator in this matter.  The Respondent alleged the Appellant violated the Labor Contract when he engaged in a physical altercation with an inmate.  The Appellant claimed the action was in self-defense.

The Arbitrator found the Appellant did participate in a action of physical abuse of an inmate, and furthermore, twice disregarded a direct request to release his hold on the inmate, and did not release the arm until forced to do so by a fellow officer.  The Appellant claimed that the inmate meant to do him harm, but witnesses stated that the situation could have been avoided if the Appellant simply stepped away from the inmate who was in his cell.  The Arbitrator stated that the actions of the Appellant were reckless and could have created a dangerous situation for other members of the staff and inmates housed in the complex, and the Grievance was denied.

Rey Perez v. Department of Correctional Services (NAPE) Rey Perez filed a grievance when the Department of Correctional Services (DCS) issued disciplinary action in the form of demotion and transfer of work location.  The parties mutually agreed to have Paul Caffera serve as Arbitrator in this matter.  The Respondent alleged the Appellant violated the Labor Contract when he allowed a subordinate staff member to leave the facility during working hours to conduct outside employment activities in the parking lot.  The Appellant admitted this action, but argued that the discipline was not commensurate to the seriousness of the offense.

The Arbitrator found the Appellant did allow the employee under his supervision to leave the facility and perform non-state work-related activities.  Also the Appellant occasionally left the facility himself to visit with the other employee and stated that he felt there was nothing wrong with this.  The Arbitrator found it was reasonable to demote the Appellant and remove his supervisory responsibilities, and also to reassign him to a different location where he could be appropriately supervised, and ordered the Grievance denied.

Charles Mink v. Department of Correctional Services (NAPE) Charles Mink filed a grievance when the Department of Correctional Services (DCS) issued disciplinary action in the form of demotion and transfer of work location.  The parties mutually agreed to have Paul Caffera serve as Arbitrator in this matter.  The Respondent alleged the Appellant violated the Labor Contract when he allowed a subordinate staff member to leave the facility during working hours to conduct outside employment activities in the parking lot and also leave the facility himself to smoke in the parking lot.  The Appellant argued he was not the only person allowing this conduct and the discipline was too severe

The Arbitrator found the Appellant allowed the employee under his supervision to leave the facility and perform non-state work-related activities.  Also the Appellant left the facility himself to smoke in the presence of other employees in the parking lot.  The Arbitrator found the Appellant's failure to act properly as a supervisor was blatant with respect to his own violation of the Smoke Free Policy in the presence of subordinates.  The Arbitrator stated, "A supervisor who does not supervise is of little or no use to his or her employer," and denied the grievance.