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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.

2013-14

Geraldine Gurnsey v. Nebraska Department of Health and Human Services (NAPE) Geraldine Gurnsey filed a grievance after being disciplined in the form of termination.  The discipline was based on allegations of not maintaining professional relationships with coworkers, not following directives, and unapproved absences.  The parties agreed to designate William Morris as Arbitrator, and a hearing was held in accordance with the 2011-2013 State of Nebraska and NAPE/AFSCME Labor Contract.

The Arbitrator found that one allegation of not maintaining professional relationships was substantiated as well as the allegation of unapproved absences was substantiated.  The Arbitrator reversed the termination and ordered six months of probation and a written warning be imposed.  Back pay was not awarded.

Phil Wemhoff v. Nebraska Department of Roads (NAPE) Phil Wemhoff filed a grievance after the Respondent made a temporary change to his work schedule.  The grievance stated that the change in the schedule was in violation of the labor contract because the situation was not an emergency.  The parties agreed to designate William Morris as Arbitrator, and the process was governed by the 2011-2013 State of Nebraska and NAPE/AFSCME Labor Contract.

The Arbitrator found that the Respondent implemented a temporary scheduling change to address an emergency staffing need and that the temporary scheduling change did not violate the labor contract.  The grievance was dismissed.

Cinde Swartz v. Nebraska Department of Health and Human Services (NAPE) The Appellant filed a grievance after the Respondent disciplined her in the form of termination.  The discipline was based upon five allegations that violated the DHHS Values and Core Competencies of High Personal Standard of Integrity, Responsibility and Accountability.  The parties agreed to designate Robert Bartle as Arbitrator, and a hearing was held in accordance with the 2013-2015 State of Nebraska and NAPE/AFSCME Labor Contract.

The Arbitrator found that the discipline of termination was not progressive in nature and that the Appellant should be reinstated and the Respondent should impose a discipline in the form of suspension without pay so that discipline is progressive in nature.

Michelle Sterling-Evans v. Nebraska Department of Health and Human Services (NAPE) The Appellant filed a grievance after being terminated, which was based upon two allegations of poor work performance.  The first allegation was regarding the Appellant causing a client to submit to an intrusive medical procedure.  The second allegation was regarding an incident of verbally berating a client.  The parties agreed to designate Paul Caffera as Arbitrator, and a hearing was held in accordance with the 2013-2015 State of Nebraska and NAPE/AFSCME Labor Contract.

The Arbitrator found that the actual evidence offered by the Respondent in regards to the allegations did not prove by a preponderance of the evidence that the allegations, other than disregarding a record-keeping policy, were true.  Therefore, the Arbitrator found that the Respondent violated the labor contract when the Appellant was terminated.  The grievance was upheld and the Respondent was ordered to change the discipline from termination to a 30 workday suspension without pay and to award back pay and benefits to the Appellant.

Kenneth Duncan, et. al. v. Nebraska Department of Health and Human Services (NAPE) Kenneth Duncan and 95 of his coworkers, filed a grievance after being notified of a decision to implement a central staffing pool.  The Respondent denied the grievance at Step 1 and 2, stating that it was filed untimely. The parties agreed to designate William Morris as Arbitrator, and a hearing was held in order to determine whether or not the grievance was filed timely, in accordance with the 2013-2015 State of Nebraska and NAPE/AFSCME Labor Contract.

The Arbitrator found by a greater weight of evidence that the date that the grievant and those he represented knew or should have known of the occurrence of the grieved action was a date that made the grievance filing within the Labor Contract guidelines of a timely filed grievance.

The grievance was remanded back to the Respondent at Step 1.  

Gary Richards v. Nebraska Department of Health and Human Services (NAPE) The Appellant filed a grievance after being terminated, which was based upon six allegations of poor work performance.  The parties agreed to designate Terri Weeks as Arbitrator, and a hearing was held in accordance with the 2013-2015 State of Nebraska and NAPE/AFSCME Labor Contract.

The Arbitrator found that the Respondent proved that the Appellant violated the Labor Contract on two of the six allegations and that the Respondent had just cause for disciplining the Appellant.  The Arbitrator also found that the discipline of termination was progressive in nature.  The grievance was dismissed.

Enrique Sotelo v. Nebraska Department of Correctional Services (NAPE) The Appellant filed a grievance after being terminated, which was based upon allegations of violating the workplace harassment policy, DCS’ conduct and ethics policy, providing false information to an investigator, and insubordination in failing to obey a direct order.  The parties agreed to designate Melanie Whittamore-Mantzios as Arbitrator, and a hearing was held in accordance with the 2013-2015 State of Nebraska and NAPE/AFSCME Labor Contract.

The Arbitrator found that evidence offered by the Respondent in regards to the allegations did prove by a preponderance of the evidence that the allegations were true, but that the discipline of termination was not progressive in nature.  The Arbitrator found that the Appellant’s employment should be reinstated and that the Respondent should determine an appropriate discipline that takes in consideration the Appellant’s discipline and performance history.

Penny Voichoskie v. Nebraska Department of Health and Human Services (NAPE) The Appellant filed a grievance after her request for two blocks of vacation leave was partially denied.  As the grievance progressed through the steps, the Appellant was granted leave for the days denied earlier.  The parties agreed to designate Paul Caffera as Arbitrator, and a hearing was held in accordance with the 2013-2015 State of Nebraska and NAPE/AFSCME Labor Contract.

The Arbitrator found that the agency action was reasonable based on the 24 hour care facility’s dire understaffing and did not violate any provision of the Labor Contract.  The grievance was dismissed.

Ryan Bureau v. Nebraska Department of Correctional Services (NAPE) The Appellant filed a grievance after being terminated, which was based upon an allegation of using excessive force on an individual in the care of the Department and on an allegation of providing false information to an investigator.  The parties agreed to designate Robert Bartle as Arbitrator, and a hearing was held in accordance with the 2013-2015 State of Nebraska and NAPE/AFSCME Labor Contract.

The Arbitrator found that evidence offered by the Respondent in regards to the allegation of excessive force did not prove by a preponderance of the evidence that the allegation was true.  The allegation of providing false information was proven by the Respondent.  The Arbitrator found that the discipline of termination was made in good faith.  The grievance was dismissed.

Sandra Sundberg v. Nebraska Department of Health and Human Services (NAPE) The Appellant filed a grievance after she was terminated for her inability to perform necessary job functions of Staff Care Technician due to an injury sustained while working at the Eastern Nebraska Veterans Home.  The parties agreed to designate Robert Bartle as Arbitrator, and a hearing was held in accordance with the 2013-2015 State of Nebraska and NAPE/AFSCME Labor Contract.

The Arbitrator found that the Respondent accommodated the Appellant for a reasonable amount of time and fulfilled its responsibility to attempt to provide further employment to the Appellant.  The appeal was dismissed.

Rafael Hernandez et al. v. Nebraska Department of Correctional Services (NAPE) The Appellant filed a grievance after the Respondent opened all Caseworker positions for bidding.  The parties agreed to designate Bill Morris as Arbitrator, and a hearing was held in accordance with the 2013-2015 State of Nebraska and NAPE/AFSCME Labor Contract.

The Arbitrator found that the Respondent has retained the right to establish, allocate, schedule, assign, modify, change and discontinue operations, workshifts and working hours and that the Respondent did not violate any provision of the labor agreement that had resulted in harm to the appellant.  The grievance was dismissed.