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.
Van Biggerstaff v. Nebraska Department of Correctional Services (FOP)
The Appellant filed a grievance after receiving three months’ probation for committing workplace harassment. Jim Titus was selected as Arbitrator, and a hearing was held in accordance with the 2023-2025 State of Nebraska and FOP 88 Labor Contract.
The Arbitrator found that the Appellant’s conduct constituted a failure to maintain proper working relationships and the utterance of offensive remarks in the workplace, but did not create a hostile work environment. The Arbitrator found that discipline was justified under Articles 10.2.j and 10.2.o of the Labor Contract, but dismissed the violates of Articles 10.2.a, 10.2.m, and 10.2.n. The Arbitrator further found that the discipline was progressive in nature and affirmed the imposed probation.
Rebecca Brinson v. Nebraska Department of Correctional Services (NAPE)
The Appellant filed a grievance after being terminated for allegations of misconduct involving treatment and record keeping relative to certain inmates at the Nebraska Correctional Facility. Robert Bartle was selected as Arbitrator, and a hearing was held in accordance with the 2023-2025 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator found that the violations charged by the Agency are not supported by clear and convincing evidence, there were no reasonable grounds for discharge. The Arbitrator ordered reinstatement by the Agency, awarded any lost benefits, including salary and fringe benefits, and awarded appropriate compensation for the wrongful termination.
Ruth Herman v. Nebraska Department of Health and Human Services (NAPE)
The Appellant filed a grievance after she volunteered for, but was not selected for, SSP overtime shifts. Jim Zalewski was selected as Arbitrator, and a hearing was held in accordance with the 2023-2025 State of Nebraska and NAPE/AFSCME Labor Contract.
The Appellant was not selected for the overtime shifts because her status to work overtime was placed on hold by the Respondent. The Respondent did this because they were unsure what pay rate should be used for the overtime assignment. The Hearing Officer found that Appellant should have been allowed to work, and the specific pay rate could have been negotiated later. Appellant should have been allowed to work in accordance with established past practice. The appeal was upheld.
Douglas Graham v. Nebraska Department of Correctional Services (NAPE)
The Appellant filed a grievance claiming the Respondent violated Article 14.6 of the Labor Contract by requiring him to use vacation or flex time to make up hours on weeks with a state holiday. Appellant holds an overtime exempt position. His normal work schedule is four 10-hour days, Monday through Thursday (“4-10”). All teammates, including those who work 4-10s, receive eight hours of holiday pay, so employees who work 4-10s would end up with only 38 hours if they took an entire day off for the holiday. To meet their 40-hour FTE requirement, the teammates are required to make up the extra two hours, either by flexing their schedule or taking approved leave. Appellant argues that he should not have to use leave or make up the hours because he is an overtime exempt employee who does not track his time hour for hour.
Jim Titus was selected as Arbitrator, and a hearing was held in accordance with the 2023-2025 State of Nebraska and NAPE/AFSCME Labor Contract. The hearing officer noted that the Labor Contract does not specifically address the issue in this case. However, NDCS’s position creates the most consistent interpretation of vacation and holiday labor contract provisions. Therefore Mr. Titus found that NDCS did not violate Article 14.6 of the Labor Contract. The appeal was denied.
Shully Mudundulu v Nebraska Department of Health and Human Services (FOP)
The Appellant filed a grievance after receiving a Notice of Discipline which consisted of a Written Warning with Work Improvement Expectations. J.L. Spray was selected as Arbitrator, and a hearing was held in accordance with the 2023-2025 State of Nebraska and FOP 88 Labor Contract.
The Arbitrator found that the Respondent failed to establish just cause to the discipline. The Respondent only accused the Appellant of being “disruptive” and did not accuse the Appellant of being “threatening” or “violent”. Appellant’s conduct was reasonable under the circumstances. The Arbitrator stated that the Respondent maintains the option of issuing a counseling to the Appellant, which is not “discipline” under the Labor Contract. The Arbitrator ordered that the Written Warning be removed from the Appellant’s personnel file(s). The grievance was sustained.
Kitty Guthmiller v Nebraska Department of Transportation (NAPE/AFSCME)
The Appellant filed a grievance under Article 9.1, when she learned she was not selected for a position, when she felt she was the most qualified and most senior candidate. Neely Fedde Salem was selected as the Arbitrator and a hearing was held in accordance with the 2023-2025 State of Nebraska and the NAPE/AFSCME Labor Contract.
The Arbitrator found that the Respondent violated Article 9.1 of the Labor Contract when the Respondent did not use the factors background or reference checks consistently between the applicants. The background check results were evaluated inconsistently when the agency did not fairly compare Appellant’s previous discipline to the other applicant’s conviction. The Arbitrator found in favor of the Appellant and was granted relief that she should be placed in the position. The grievance was sustained.
James Kazalski v Nebraska Department of Correctional Services (NAPE/AFSCME)
The Appellant filed a grievance under Article 11.1 and Appendix A, after he was not compensated for time spent in security screenings when he enters the facility. Neely Fedde Salem was selected as the Arbitrator and a hearing was held in accordance with the 2023-2025 State of Nebraska and the NAPE/AFSCME Labor Contract.
The Arbitrator found that Article 11.1 and Appendix A were not violated. The Appellant did not argue that his rate of pay was miscalculated or that he was paid at the wrong rate per his job classification and step level. The Arbitrator found that the agency did not violate the Fair Standard Labor Act by compensating for time spent in enhanced security screening but not regular security screening. The Arbitrator denied the relief of the Appellant and dismissed the appeal.
Doug Thomas v Nebraska Department of Motor Vehicles (NAPE/AFSCME)
The Appellant filed a grievance under Article 10.1 because he received a Notice of Discipline for a three day suspension without pay based on allegations that he looked up individuals on the Department of Motor Vehicles database that was not related to his assigned work. Robert F. Bartle was selected as the Arbitrator and a hearing was held in accordance with the 2023-2025 State of Nebraska and the NAPE/AFSCME Labor Contract.
The Arbitrator found that the discipline complied with progressive discipline requirements. Consideration was given to the Appellant because of his outstanding service record, but also consideration was given to the nature and severity of the infraction. The penalty imposed was within the discretion of the employer and appropriate to the circumstances of the offense. The Arbitrator dismissed the appeal.
Tyler Tomaszkiewicz v Nebraska Department of Health and Human Services (NAPE/AFSCME)
The Appellant filed a grievance under Article 10.1 because he received a Notice of Discipline terminating his employment based on an allegation that he failed to complete a monthly progress letter. James C. Zalewski was selected as Arbitrator, and a hearing was held in accordance with the 2023-2025 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator concluded there was just cause for discipline, but not a termination of employment. The Arbitrator’s conclusion is that the late submission of the progress letter in this case did not have the dire consequences stated by the Agency that is sufficient to warrant a termination of employment. Additionally, the agency did not give Appellant any opportunity to comply with the performance improvement plan that was imposed. Therefore, the Arbitrator ordered Appellant’s reinstatement to his former position and backpay,. The grievance was sustained.
Steven McDonald #1 v Nebraska Department of Correctional Services (NAPE/AFSCME)
The Appellant filed a grievance under Articles 2.3, 18.1 and 18.2 because the Appellant was not allowed to contact a Union Representative prior to a meeting and Respondent created an unsafe work environment by denying Appellant a safety vest. Robert F. Bartle was selected as Arbitrator, and a hearing was held in accordance with the 2023-2025 State of Nebraska and NAPE/AFSCME Labor Contract.
The Arbitrator found that the agency did not violate the Labor Contract. The Arbitrator acknowledged that the Appellant may have requested to speak with a union representative prior to any meeting with his supervisor, that it is not a condition protected by way of either the Union Contract or Nebraska law. In reference to the unsafe working conditions, the Arbitrator’s concluded that the agency was not required to issue a safety vest to the Appellant. The Arbitrator dismissed the appeal.