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.
Trevor Knorr and All Similarly Situated FOP 88 Employees v. Nebraska Department of Correctional Services (FOP)
The Appellant filed a grievance arguing that the Respondent violated Section 11.2.1 of the FOP Labor Contract when it did not advance him one step on his classification pay line on July 1st. Jim R. Titus was designated as Arbitrator, and a hearing was held in accordance with the 2021-2022 State of Nebraska and FOP Labor Contract.
The Appellant was hired in September 2020 and satisfactorily completed his probation in March 2021. The arguments center on whether the Appellant met the requirements for an advance in the pay line, namely if he “had at least satisfactory performance for the past calendar year (2020) for the increase on July 1, 2021 to be implemented.” The issue is whether the language allows for an evaluation of part of the calendar year 2020, or whether it required the evaluation to be for the entire calendar year of 2020. The Arbitrator found that the phrase “for the past calendar year” is a clear statement requiring the whole year to be considered; the Labor Contract by its precise wording required a performance review for employees who had the entire calendar year of employment to be reviewed. Therefore, the Arbitrator found that the Respondent did not violate the Labor Contract, and the appeal was denied.
Maria Torres v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance regarding Section 7.8: Call-Back Time/ Call-In. The parties agreed to designate Jim R. Titus as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator noted that a disruption for an employee can occur whether or not the employee is called back to the office of the employer and that Ms. Torres should have received the minimum two hours of pay.
Shane Norseen v. Nebraska Department of Transportation (NAPE)
The Appellant filed a grievance after he interviewed for but was not selected for a opening in his current position at another location. The Appellant argued that NDOT violated Section 9.5 or 9.1 of the State of Nebraska and NAPE/AFSCME Labor Contract when it awarded the position to a less-senior applicant. The Respondent argued that the Appellant scored significantly lower than the selected applicant; seniority is only considered if applicants’ scores are substantially similar. Paul J. Caffera as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator found that the matter involved a “vacancy” not a “transfer,” therefore the matter is governed by Section 9.1. There was no violation of Section 9.5.
During the hearing, the Respondent’s witnesses testified that the Appellant possessed the qualifications to perform the duties of the position, and the Respondent failed to present any evidence that the Appellant was deficient in any aspects of his performance or in his communications abilities. Therefore, the Arbitrator was persuaded that the interviewers considered “likability,” which was not criteria set forth in the job requisition/posting. By imposing this likability standard upon the candidates, the Agency’s interviewers violated Section 9.1. The Arbitrator upheld the appeal and ordered that the applicants be re-interviewed by a new panel of NDOT supervisors who will limit their considerations of the candidates’ qualifications to the criteria set forth in the Job Requisition.
Frank Stewart v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance arguing that on July 1, 2021, he should have advanced two additional steps on the pay line because his performance review was not completed prior to April 1, 2021, and therefore, his evaluation should have defaulted to satisfactory. The Respondent argued that on April 16, 2021, when the evaluation was completed, the 2019-2021 NAPE/AFSCME Labor Contract was the governing contract. The 2019-2021 Labor Contract does not have an April 1 deadline; therefore, the unsatisfactory performance rating should stand. Anne E. Winner was designated as Arbitrator, and a hearing was held in accordance with the 2021-2022 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator found that at the time of Mr. Stewart’s evaluation, the 2019-2021 Labor Contract was in effect, and no contractual deadline existed. The Arbitrator concluded that the unsatisfactory performance evaluation issued on April 16, 2021 was issued prior to the effective date of the 2021-2023 Labor Contract and was not untimely as of the date it was issued. Therefore, DHHS did not violate the terms of the either Labor Contract. The Appellant’s appeal was denied.
Paul Bykerk v. Nebraska State Patrol (NAPE)
The Appellant filed a grievance after being terminated; the termination was based on allegations that he demonstrated inefficiency or incompetence in performing duties, and/or acted in a manner which adversely affected his or the agency’s performance. Melanie J. Whittamore-Mantzios was selected as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator found the Respondent proved by a preponderance of evidence that the Appellant violated the Labor Contract, that there were sufficient grounds for disciplinary action, that termination was for just cause, and that progressive discipline was utilized. The appeal was denied.
Sarah Karas and Similarly Situated FOP 88 Employees v. Nebraska Department of Correctional Services (FOP)
The Appellant filed a grievance after the Respondent change its policy and stated that hours worked on a voluntary team would no longer count as voluntary overtime for purposes of rotating an employee’s name to the bottom of the mandatory overtime list. Jim Titus was selected as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and FOP Labor Contract.
Section M.6.3.1 of the 2019-21 FOP Labor Contract provides that “after the employee works two or more hours of voluntary overtime the employee moves to the bottom of the mandatory overtime list.” The Respondent argued that the hours must be in the “performance of duties” and that voluntary team training is not in the course of an employee’s duties because the employee volunteered for additional duties, for which there is required training. The Hearing Officer found that the Respondent’s argued restriction is not in the plain, unambiguous language of the Contract and found that the Respondent violated the Labor Contract. The Hearing Officer ordered that FOP 88 employees have their names moved to the bottom of the mandatory overtime list after working more than two hours of voluntary overtime on any volunteer team or instructorship.
Sarah Robinson v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance after being terminated; the termination was based on the allegation that she failed to ensure the safe placement of foster children in a foster home. Melanie J. Whittamore-Mantzios was selected as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator found the Respondent proved by a preponderance of evidence that the Appellant violated the Labor Contract and that there were sufficient grounds for disciplinary action. The violations were severe enough to be just cause for termination of employment, and progressive discipline was followed. The appeal was denied.
Rhonda Bohling v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance after the Respondent assigned her eight hours of mandatory overtime immediately following eight hours of voluntary overtime. The Respondent argued that Section C.11.14 states that if mandatory overtime is necessary, it will be directed to the employees on duty the shift that precedes the mandatory overtime shift and whose name is closest to the top of the overtime roster. It does not exempt anyone who had volunteered. James C. Zalewski was selected as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract.
During the hearing, the Respondent’s witness explained that during past negotiations, the express language that prevented employees who had worked voluntary overtime from being mandated to work was removed and has not been in the Labor Contract for the last six years. Therefore, the Arbitrator found that the Union in essence bargained away the language the Appellant now seeks to enforce; it had clear language that employees would not have to work mandatory overtime following a voluntary overtime shift. However, that was changed, and has not been in place for the last six years. The grievance was denied.
Joshua Allecci v. Nebraska Department of Correctional Services (FOP)
The Appellant filed a grievance after being demoted for an allegation that he was untruthful about a personal relationship with a subordinate. The parties agreed to designate David M. Gaba as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and FOP Labor Contract.
The parties stipulated that the Appellant was knowingly untruthful during the investigation. The Arbitrator stated that under normal circumstances, he would agree that the Appellant should be subject to severe discipline for lying during an investigation and that demotion would have been appropriate but for the fact that the Respondent failed to establish that other employees had received a similar level of discipline for similar reasons. In this case however, the Arbitrator stated he had no choice but to conclude that the demotion was unreasonable because it was inconsistent with the Respondent’s discipline of other employees for similar offenses. Therefore, the Arbitrator ordered that the Appellant’s demotion be reduced to a three-month disciplinary probation. The grievance was sustained in part and denied in part.
Erin Walkinshaw v. Nebraska Department of Veterans’ Affairs (NAPE)
The Appellant grieved her non-disciplinary termination of employment; the Appellant had permanent medical restrictions that limited her to working no more than eight hours each day. The parties agreed to designate Jeanelle R. Lust as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract.
Based on the evidence and on past decisions of the Eighth Circuit Court of Appeals, the Arbitrator concluded that mandatory overtime is an essential function of the job of Staff Care Technician II as employed at the Eastern Nebraska Veterans’ Home in Bellevue, Nebraska, and that an employer is not required to provide an accommodation if it would require eliminating an essential function of the job altogether. The arbitrator further concluded that the Respondent did not fail to engage in the interactive process to accommodate the Appellant’s disability before proceeding to terminate under Article 3.7 of the Labor Contract. Therefore, the Arbitrator found the Respondent appropriately terminated the Appellant; the grievance was denied.
Blayne Glissman v. Nebraska Department of Environment and Energy (NAPE)
The Appellant filed a grievance after receiving a written warning for an alleged violation of agency policy; the appellant denied the allegation. Jim Zalewski was selected as Arbitrator, and a hearing was held in accordance with the 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract.
In reviewing all the evidence submitted, the Arbitrator found that the preponderance of evidence does not show that the Appellant violated the policy in question. Therefore, The Arbitrator ordered that the written warning be removed from the Appellant’s personnel record.
Jeremy Fleischman v. Nebraska Department of Correctional Services (FOP)
The Appellant filed a grievance after he was denied COVID-19 Administrative Leave. The Respondent argued that the Appellant had already worked over 40 hours for that week and therefore was ineligible for COVID-19 Administrative Leave; the Respondent’s other leave policies state that employees cannot use leave hours to exceed their FTEs. The parties agreed to designate 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 found that the eligibility criteria in the COVID-19 Administrative Leave agreement did not include an exception. The Arbitrator did not find that the Respondent’s other leave policies were adequately similar to the COVID-19 policies-with respect to purpose or intent-to justify identical implementation. Therefore, the Arbitrator upheld the appeal and ordered the Appellant be made whole.