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.
Kathy Holdsworth v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance after being terminated; the termination was based on allegations that the Appellant used State resources to access confidential information. 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 parties agreed that grounds for discipline exist, however the Appellant argued that termination violated progressive discipline. The Arbitrator found the Respondent did not employ progressive discipline in terminating the Appellant’s employment because the severity of the behavior did not warrant termination and Appellant did not have any prior discipline and had a good performance record. Therefore, the Arbitrator ordered that the Appellant be reinstated and that the matter be remanded to DHHS to impose a lesser form of discipline. The appeal was upheld.
Francesco Scalzo v. Nebraska Department of Correctional Services Services (NAPE)
Francesco Scalzo filed a grievance after being disciplined with a 3-month disciplinary probation for reading a personal book on work time. Peggy A. McNeive was selected as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and FOP Labor Contract.
The Respondent argued that by reading a personal book while at work, the Appellant wasted time in which he could have been performing work for the Department. The Appellant argued that his previous supervisor encouraged employees to read books related to work and that his current supervisor observed him reading and did not tell him to stop. The Arbitrator noted that under most progressive discipline models, the employee receives either a counseling or a verbal warning for the first offense of minor unacceptable behavior. There was nothing in the testimony to indicate the Appellant would not have followed a directive to stop reading and take the books home. Therefore, the Arbitrator upheld the appeal and ordered the 3-month disciplinary probation be removed from Mr. Scalzo’s personnel file.
Lesa Struss v. Nebraska Department of Health & Human Services (FOP)
The Appellant filed a grievance after she was denied requested vacation leave. Jim R. Titus was selected as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and FOP Labor Contract.
The Respondent denied the Appellant’s vacation request due to a policy of only approving one person from each shift for preferred vacation leave at the Appellant’s work site. Another teammate with more seniority was approved for the days off the Appellant requested. The Appellant argued the policy violates the Labor Contract because it is arbitrary and unreasonable. However, given staffing levels and staffing requirements, the Arbitrator found that the policy was not unreasonable. Therefore, the Arbitrator concluded that the Respondent did not violate the Labor Contract, and he denied the appeal.
Jennifer White v. Nebraska Department of Administrative Services (NAPE)
The Appellant filed a grievance after being terminated; the termination was based on allegations that she was violating the Labor Contract and workplace policies. Hugh Perry 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 followed progressive discipline and had just cause to terminate the Appellant. The appeal was denied.
Laura Sanders v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance claiming the Respondent violated Sections 26.4.1 and 26.4.3 of the Labor Contract by not completing a performance evaluation by April 1, 2022. The Appellant’s supervisor had completed and discussed the performance evaluation with the Appellant in late March. However, the Appellant did not electronically sign off on her performance evaluation. The Appellant argued that the act of not documenting her refusal to sign results in failure to complete the evaluation prior to April 1, 2022.
Jim Titus was selected as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract. The hearing officer noted that the Labor Contract indicates that the discussion and presentation of the evaluation to the employee is considered the “final completion.” Refusal or failure on the part of a teammate to sign off on the performance evaluation does not prevent the evaluation from being completed. Therefore, the Arbitrator found that the Respondent did not violate Sections 26.4.1 and 26.4.3 of the Labor Contract. The Appeal was denied.
Dennis Taute #1 v. Nebraska Department of Correctional Services (NAPE)
The Appellant filed a grievance after receiving a three-day disciplinary suspension without pay based on allegations that he violated the Labor Contract and failed to follow NDCS work policies prohibiting sexual harassment and unprofessional conduct in the workplace. Jim Zalewski 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 that there was sufficient just cause to impose discipline, however a three-day disciplinary suspension without pay was too severe based on mitigating factors. The Hearing Officer ordered that the Appellant’s discipline be changed to disciplinary probation. The appeal was upheld.
Dennis Taute #2 v. Nebraska Department of Correctional Services (NAPE)
The Appellant filed a grievance after being transferred to a different facility based on allegations that he violated the Labor Contract and failed to follow NDCS work policies prohibiting sexual harassment and unprofessional conduct in the workplace. The Appellant argued that in doing so, NDCS violated the Labor Contract provisions regarding transfers. Jim Zalewski was selected as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract.
The Respondent argued that it had to transfer the Appellant under the “business necessity” exception. The Appellant argued that since he was not the least senior employee, and because no volunteers were sought for the transfer, he cannot be transferred for a disciplinary reason. The Arbitrator noted that a transfer under Section 9.5 can be used in conjunction with disciplinary proceedings on a case-by-case basis, but there must be clear and convincing evidence that there is just cause for the transfer and that it is the only viable option to resolve an employment issue. In this matter, this was not established by a preponderance of evidence. The appeal was upheld.
Shane Norseen v. Nebraska Department of Transportation (NAPE)
The Appellant filed a grievance after he interviewed for but was not selected for his current position at another location. Hugh Perry 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 determined that the Appellant and the other applicant are substantially similar in the areas of knowledge, experience, and ability. Therefore, the Appellant, as the most senior applicant, should have been awarded the position. The appeal was upheld.
Stanley Webb v. Nebraska Department of Correctional Services (FOP)
The Appellant filed a grievance after he received a written warning relating to a use of force incident. 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 FOP Labor Contract.
At the hearing, NDCS failed to establish that the Appellant used excessive force; therefore, NDCS did not have just cause for discipline. The Arbitrator ordered that all discipline from this matter be vacated from the Appellant’s record. The appeal was upheld.
Matthew Hill v. Nebraska Department of Correctional Services (FOP)
The Appellant filed a grievance after he received discipline relating to a use of force incident. 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 FOP Labor Contract.
At the hearing, evidence failed to show the use of force was unnecessary. Therefore, NDCS did not have just cause for discipline. The Arbitrator ordered that all discipline from this matter be vacated from the Appellant’s record. The appeal was upheld.
Brendan Patti v. Nebraska Department of Transportation (NAPE)
The Appellant filed a grievance after he was terminated without due process. The Respondent argued that due process was not required because the Appellant’s original probation had been extended. Jim R. Titus was selected as Arbitrator, and a hearing was held in accordance with the 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract.
The parties agreed to bifurcate the matter into two hearings. The first hearing would address the issue of original probation; the second hearing would address the termination. At the first hearing, the arbitrator found that the Appellant’s original probation had expired was not extended by the Respondent. Therefore, at the time of the termination, the Appellant was not on original probation and due process was required. At a planning conference prior to the second hearing, the parties agreed to grant the Appellant his requested relief. Therefore, the Arbitrator ordered the appeal be upheld.
Shawn Paillot v. Nebraska Department of Health and Human Services (NAPE)
The Appellant grieved his non-disciplinary termination of employment. 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 Respondent claimed that the Appellant, due to medical reasons, could not perform an essential job function: performing in-person assessments in the community. The Appellant claimed the Respondent did not accommodate his disability. At the hearing, evidence established that in-person assessments are not an essential function of the Appellant’s job, and that his job could be restructured to accommodate his disability. Therefore, the Arbitrator ordered the Appellant be reinstated to his job. The appeal was upheld.