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.
Tami Krontz v. Nebraska Department of Health and Human Services (NAPE)
The Appellant grieved her non-disciplinary termination of employment. The termination was based on her inability to perform the duties assigned to the position of housekeeper. The parties agreed to designate Melanie J. Whittamore-Mantzios as Arbitrator, and a hearing was held in accordance with the 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract.
Prior to Appellant’s termination, she was demoted from the position of Pharmacy Tech. However, due to medical restrictions, the Appellant was not able to perform the new positon’s duties. The Arbitrator found that the Appellant could not be demoted to a position that she was not physically able to perform. DHHS was under an obligation pursuant to Sections 3.7 and 15.1 of the NAPE/AFSCME Labor Contract to find the Appellant a demoted positon, if available, that she could perform with or without an accommodation and to make an attempt to accommodate her restrictions in that new position. The Arbitrator found that DHHS failed to demonstrate that it made an attempt to accommodate the Appellant’s disability. The Arbitrator further stated that although there is a very strong possibility that there is no available position that the Appellant can perform that qualifies as a demotion, Section 3.7 requires that DHHS first make an attempt to accommodate the Appellant’s disability; “just saying there is not an accommodation is not the same as making an attempt to find an accommodation.” Therefore, the Arbitrator reversed the termination and directed DHHS to have a meeting with Ms. Krontz to discuss positions, essential functions, restrictions, and if there are any reasonable accommodations.
Angel Murtaugh, Appeal #1 v. Nebraska Department of Health and Human services (NAPE)
The Appellant filed a grievance after being disciplined in the form of a 3-day unpaid suspension. She was disciplined for allegedly making an unprofessional and disrespectful statement to a coworker. The parties agreed to designate Terri M. Weeks as Arbitrator, and a hearing was held in accordance with the 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator found that the record supports the conclusion that the statement was made in violation of DHHS Work Place Policies and Sections 10.2.a, 10.2.j, and 10.2.o of the Labor Contract. The Arbitrator concluded that the Agency, in accordance with Section 10.1 of the Labor Contract, acted with just cause, recognizing and employing progressive discipline when it disciplined Ms. Murtaugh. The grievance was denied.
Kaleo Gates v Nebraska Department of Correctional Services (FOP)
The Appellant filed a grievance in regards to Section 11.2 of the Labor Contract between the State of Nebraska and FOP, #88. The Appellant claimed that he was not given a 0.25% salary increase as directed in Section 11.2. July 1, 2018 was the Appellant’s five–year continuous service anniversary. The Respondent interpreted Section 11.2 to mean that an employee had to attain five or more years of service before July 1, 2018. The parties agreed to designate J.L. Spray as Arbitrator, and a hearing was held in accordance with the 2019-2021 State of Nebraska and FOP, #88 Labor Contract.
The Arbitrator found that the operative portions of Section 11.2 have three requirements for the 0.25% increase. First, the employee must have attained five or more years of service as of July 1, 2018. Second, the employee cannot yet have attained one of the continuous service anniversary dates during the fiscal year preceding July 1, 2018. Third, the employee must have had at least satisfactory performance reports during the preceding five–year period. The Arbitrator found that the Appellant met each of these requirements, and therefore, the Nebraska Department of Correctional Services violated Section 11.2 of the Labor Contract. The grievance was affirmed.
Amanda Johnson v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance after she was terminated, in good standing, under Section 3.7 of the Labor Contract for her inability to perform an essential function of her job, regular and predictable attendance. The parties agreed to designate Anne E. Winner as Arbitrator, and a hearing was held in accordance with the 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract.
The Appellant had exhausted her FMLA leave and no reasonable accommodations existed; the Appellant “could not reasonably perform her job within the limitations and accommodations [her doctor] proposed”. The Arbitrator concluded that the Respondent did not violate the terms of the State of Nebraska and NAPE/AFSCME Labor Contract and that the decision to terminate the Appellant was in good faith and for cause. The appeal was denied.
Martha Hilbers v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance after she was not selected for promotion. She argued that DHHS violated Section 9.1 of the State of Nebraska and NAPE/AFSCME Labor Contract because it failed to apply the stated criteria and did not consistently apply the criteria among all applicants. The parties agreed to designate Melanie J. Whittamore-Mantzios as Arbitrator, and a hearing was held in accordance with the 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator found that the Labor Contract does not require a perfect consistency or that the same person(s) interview applicants. The Arbitrator noted that DHHS has structured the hiring process to ensure that each employee is given the same opportunity to demonstrate their knowledge, experience, and abilities by developing the same questions and by training interviewers. The Arbitrator concluded that the manner in which DHHS structured the promotion process did not violate the Labor Contract. The appeal was denied.