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.
Lucas Fields, on Behalf of Himself and on Behalf of Similarly Situated FOP 88 Employees v. Nebraska Department of Correctional Services (FOP)
The Appellant filed a grievance arguing that when he and similarly situated employees worked on a designated holiday, they should have been paid two times their hourly rate for the last 4 hours of their 12-hour shift. Due to emergency staffing needs, the Appellant and others were temporarily working 12-hour shifts. The parties agreed to designate Jim Titus as Arbitrator, and a hearing was held in accordance with the 2019-2021 State of Nebraska and FOP Labor Contract.
The Arbitrator noted that Section 14.4 refers to “an employee’s normally scheduled work day.” The arguments of the parties focused on what is a normally scheduled work day. The Appellant argued that it means the number of hours of a shift on the employee’s permanent work schedule; the Respondent argued that it means the scheduled hours on the particular day in question, whether permanent or temporary. The Arbitrator stated that normal means standard, usual, typical or routine; it does not mean non-routine like an emergency or temporary schedule. Therefore, the Arbitrator upheld the Appellant’s appeal and ordered that the Appellant and similarly situated employees be granted four hours of back pay at two times the normal rate of pay, minus the pay already received for the four hours.
Cindy Drake v. History Nebraska (NAPE)
The Appellant filed a grievance after receiving a written warning based on an allegation that she improperly used a History Nebraska collections item. 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 Respondent violated Article 10.1 of the contract as the item was not part of the “permanent collection” and there is inadequate evidence that it was “state property.” Therefore, the appeal was upheld. The Arbitrator ordered that the discipline be reversed and the removed from the Appellant’s personnel file.
Beverly Goodwin v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance after being denied sick leave, which she requested for the purpose of lowering her risk of contracting Covid-19 and possibly infecting a family member. The parties agreed to designate Melanie J. Whittamore-Mantzios as Arbitrator. A hearing was held in accordance with the 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract.
The question raised was whether DHHS violated Section 14.11(a) by denying the Appellant’s continued use of sick leave. The Arbitrator found that 14.11(a) is unambiguous. Its purpose is to protect other employees, and possibly visitors at a state agency location, from a contagious disease by allowing employees who presently have a contagious disease to use sick leave. While the Arbitrator is sympathetic, the Labor Contract does not allow employees to use sick leave due to the fear of potentially contracting or exposing a family member to a contagious disease. Therefore, the Arbitrator found that DHHS did not violate the Labor Contract. The appeal was denied.
Donta Brown v. Nebraska Board of Health and Human Services (NAPE)
Brown filed a grievance after being terminated, which was based upon an allegation that he failed to follow through on a directive to update a safety assessment. The parties selected Jeanelle R. Lust as Arbitrator, and a hearing was held in accordance with the 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract.
The issues to be decided were: Whether DHHS violated Article 10.10 of the Labor Contract by not making a decision on termination within 30 days after the result of the pre-disciplinary hearing and whether DHHS had just cause to take disciplinary action. The Arbitrator found that Article 10.10 did not require a 30 day turn around in this circumstance. However, the delay in disciplinary action undermines the Department’s argument that Mr. Brown’s conduct was so egregious it required termination. Furthermore, the Arbitrator found that Mr. Brown did not violate a supervisory order; rather, he made efforts to comply with the directive. Therefore, the Arbitrator concluded that DHHS did not demonstrate just cause for discipline. The Arbitrator ordered that the grievance be upheld, that the termination be reversed, and that the Appellant be awarded back pay minus his salary in mitigating employment.
Christine Slaymaker, Et Al. v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance after a new dress code was announced. The parties selected J.E. Nash as Arbitrator, and a hearing was held in accordance with the 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator noted that the Agency’s implementation of the dress code was arbitrary and capricious. He also noted that the Agency failed to provide seven days advance notice of the proposed change and failed to reduce the proposed change to writing—as mandated by the Labor Contract. Therefore, the Arbitrator found that DHHS violated Articles 1.4 and 1.5 of the State of Nebraska and NAPE/AFSCME Labor Contract. The grievance was upheld, and DHHS was directed to reactivate the October 2017 Dress Code Policy.
Alicin Carlson-Dollen v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance after being denied bereavement leave. 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 Agency Head and/or Designee retains the discretion to decide whether the definition of family member will be expanded; such a decision can be made as a matter of policy or on an individual basis. The Respondent currently has a blanket policy of refusing to expand the definition of immediate family member. The Arbitrator feels that the blanket policy is reasonable given the Respondent’s history of inconsistent expansion. The Arbitrator concluded that DHHS did not violate the Contract in making a blanket refusal to expand the definition of immediate family member under Section 14.17. The appeal was denied.
Rochele Brown v. Nebraska Board of Parole (NAPE)
Brown filed a grievance after being terminated, which was based upon an alleged failure to supervise her assigned parole clients in accordance with established departmental protocol. The parties agreed to designate Robert F. Bartle 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 Respondent presented extensive factual findings and met its burden of proof; he also noted that progressive discipline was followed. Therefore, the Arbitrator affirmed the decision of the agency to terminate the Appellant’s employment. The grievance was dismissed.
Lucius Sheridan, on Behalf of Himself and on Behalf of Similarly Situated FOP 88 Employees v. Nebraska Department of Correctional Services (FOP)
The Appellant, a CCCL employee, filed a grievance after he was directed to work mandatory overtime to supervise a NSP inmate. 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 Labor Contract.
The Arbitrator states that where the language in a collective bargaining agreement is clear and unambiguous, the arbitrator must give effect to the plain meaning of the language. The Arbitrator found that NDCS violated Section M.1.6 of the Labor Contract because it did not provide ten days’ written notice that the Appellant’s permanent assignment at CCCL was being changed—even temporarily—to NSP. The only exceptions to providing proper notice are if the employee voluntarily agrees to a change in assignment or when there is an emergency, neither of which occurred in this instance. Additionally, the Arbitrator found that NDCS violated the Labor Contract because the Appellant’s name was not on the accurate up-to-date mandatory overtime list of employees for each NSP work shift by job classification. NDCS was required to use the NSP mandatory overtime list for the NSP supervision assignment. While the Respondent provided credible evidence of a long-standing past practice, which implies the FOP Union’s consent, the Arbitrator found he must consider Section 1.2 of the Labor Contract, which states in part, “This Contract supersedes and cancels all prior practices and agreements.” Therefore, the Arbitrator concluded that the Respondent violated the Labor Contract and affirmed the Appellant’s appeal.
Susanna Fuehrer v. Nebraska Commission for the Deaf and Hard of Hearing (NAPE)
Fuehrer filed a grievance after being terminated, which was based upon alleged inefficiency or incompetence in the performance of duties. The parties selected 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 Respondent proved by a preponderance of the evidence that there were good and sufficient grounds for disciplinary action. The arbitrator also indicated that progressive discipline was followed. Therefore, the Arbitrator affirmed the decision of the agency to terminate the Appellant’s employment. The grievance was dismissed.
Angel Murtaugh v. Nebraska Board of Health and Human Services (NAPE)
Murtaugh filed a grievance after being terminated, which was based upon allegations that she communicated in an unprofessional and disrespectful manner; that she failed to follow DHHS policies and procedures; and that she failed to maintain confidentiality. The parties selected Hugh J. Perry 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 Ms. Murtaugh did not communicate in an unprofessional or disrespectful manner. While the Agency did have just cause for discipline based on technical violations of procedure and the confidentially policy, the gravity of the violations do not justify termination. The Arbitrator ordered that the grievance be upheld, that the termination be reversed and that the Appellant be awarded back pay and benefits, except for 3 days suspension without pay.
Robert Reed v. Nebraska Department of Correctional Services (FOP)
Mr. Reed filed a grievance after being terminated, which was based upon allegations that he failed to complete checks and searches, falsified a checklist, had an inmate in an office without authorization, and left his post without proper approval. Terri M. Weeks was selected as Arbitrator, and a hearing was held in accordance with the 2019-2021 State of Nebraska and FOP #88 Labor Contract.
The Hearing Officer found that the allegations against Appellant were substantiated and that he violated Sections 10.2.a, 10.2.c and 10.2.m of the Labor Contract. The Hearing Officer found that the discipline imposed by NDCS complied with the Labor Contract, as it was for just cause and, in light of past disciplinary history, the discipline recognized and employed progressive discipline. The appeal was denied.
Rachel Krul v. Nebraska Department of Veterans’ Affairs (NAPE)
The Appellant filed a grievance after she was assigned to work a four-hour shift. The Appellant argued that the assignment was mandatory overtime and that the Respondent violated several sections of the Labor Contract regarding mandatory overtime. The Respondent argued the assignment was a non-permanent work schedule change made to address a staffing emergency caused by the COVID pandemic. The parties agreed to designate Paul J. Caffera as Arbitrator, and a hearing was held in accordance with the 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator stated that the core question is: was the Appellant’s involuntary assignment an overtime assignment or was it a non-permanent work schedule change made to address an “emergency”? The Arbitrator was persuaded that the assignment constituted an overtime assignment. The Arbitrator upheld the grievance and ordered NDVA to abide by the Labor Contract in the assignment of mandatory overtime.
Kedrick Ford v. Nebraska Department of Health and Human Services (NAPE)
Kedrick Ford filed a grievance after being disciplined based upon an allegation of inappropriate behavior. Jeanelle R. Lust was selected 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 Respondent failed to prove that the incident occurred and concluded that the incident did not happen as alleged. Therefore, imposing discipline on Mr. Ford was inappropriate and in violation of Article 10.1 of the Labor Contract. The Arbitrator ordered that Mr. Ford be paid 20 hours of back-pay, be removed from probation, and have the discipline removed from his personnel file.