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NAPE/AFSCME Contract Interpretations:

Sections 2.12 through 9.5

(Updated 6/26/2017)
Contract Article
2.12 Bulletin Board Reps 2/21/1995 Can NAPE/AFSCME designate a Bulletin Board Rep at a site where union stewards are certified to provide those services? Can NAPE/AFSCME designate a Bulletin Board Rep at a site where union stewards are certified to provide those services?
2.12 Union use of Computers 7/1/2005 Can the Union use E-Mail for its business? Only as provided in this Section, i.e., notices not to exceed one page, meeting criteria to be placed on bulletin boards and requested to be sent via DAS-Employee Relations office.
4 Witness 8/1/1996 If the Union calls a witness (from out-state) that the State has not called, who pays the expenses? Agency paid $800 for air transportation. The agency is only obligated to pay reasonable expenses. The agency needs to determine the most cost effective mode of transportation, and advise the witness.
4 Grievance Processing 6/29/2011 When preparing/filing a grievance/appeal, can an employee use work time, supplies or equipment to process their grievance? No.  It is the State's long time past practice to not allow this. There isn't anything in the contract that provides for preparation time.  Also, the use of state resources (computers, paper, copies, etc.) is not allowed.
4.16.2 Attending a hearing considered work time 7/1/2017 An employee travels to Lincoln to attend his/her minihearing, all during the employee's off-duty hours. Can employee be paid for his/her travel time in addition to time at the hearing? Employees should be informed that they can participate in minihearings via conference call from the work site or from home; and only in those situations where the agency agrees, will travel time be paid. When travel time is paid, it will be those hours cutting across normal work time. Actual time spent in the hearing will always be considered work time.
4.2 & 9.1 Grievability - Transfer 6/10/1997 Can a person in a professional position file a grievance on behalf of a staff assist. when an agency chose to make a lateral transfer rather than open the position for applicants. No. Management can transfer employees laterally w/in the same class by following 9.5. They do not have to post the vacancy. Also, the Professional employee has no standing to file a grievance since they have not been harmed by the action.
5.5.a Layoffs 7/29/2014 Does changing a currently occupied position from full time to part time constitute a layoff for that employee? Yes.
5.5.b Layoffs 1/4/1995 Are layoffs under NAPE by seniority only or can performance points be included? Seniority only, no performance points allowed.
5.6 RIF employee 7/1/2009 Can a RIF employee fill a qualified position even though it has been closed and has a higher minimum rate of pay? No. RIF employees can only fill positions at the same or lower minimum rate of pay. The employee would have to compete for the opening like anyone else.
5.6.c Layoff 8/1/1995 Can a "specific job related factor" be used to avoid bumping if the person identified to be bumped is the PC troubleshooter? If you can learn computers and how to troubleshoot within six months, then it wouldn't be allowed as a specific job related factor.
5.6.c Lay Off - Bumping 7/24/1998 Does a person being laid off have to bump the next senior employee in that same class or only the one with the least seniority? Only the employee with the least seniority as long as the agency wrote it into its lay-off plan, otherwise, it will cause a chain reaction of bumping.
5.6.c.1 Bumping Pool 12/14/2009 If the number of employees to be laid off in the same classification is four, and two decide to retire or take the layoff, will the bumping pool consist of 2 or 4 employees in that same classification. The bumping pool will consist of two, rather than four.
5.7 Bumping v. Layoff 7/1/2009 Can a "laid-off" employee, who elects to bump to a position with a lower minimum rate of pay, have a salary above the maximum for the new position? Yes and No. Employees requesting voluntary transfer (lateral or down) or as a result of bumping,  in lieu of layoff, may at the agency head discretion, have their salary reduced per section 11.9.  It is up to the agency head. The new salary cannot be greater than 5% above the maximum.
5.9 Layoff Recall 6/12/2003 Agency laid off an employee classified as AAII. Agency had a subsequent AAI vacancy. If the AAII employee accepts the AAI position, does the employee remain on the layoff recall list? Yes, for the 24 month layoff recall timeframe unless the employee accepts an AAII position.
5.10 Layoff Recall 5/8/2017 If a laid off employee bumps into another filled position of the same class, at another location, should the employee be included on a recall list? Yes.
5.18 Resignation 11/26/1999 If an employee resigns and the last day of work is a Holiday, does the employee get paid for the Holiday, even if they are not in paid status the following day? If the employee had given the proper two-weeks notice and it is a valid resignation, the employee should be paid for the holiday.
5.18 Resignation 3/19/2015 When an employee resigns does the employee need to be present at work the full 8 hours on their last day of employment? No.  There is no provision in the Contract that says an employee has to be present at all on the last day of employment, as long as they are on some sort of approved leave.  Some agencies may have a specific work rule/policy on this.
5.20 Layoff Pool 7/1/2009 If an agency has advertised a vacancy externally and has two applicants that qualify, one being an agency employee and the other being an employee from the Re-employment program, who should receive the position? The Re-employment  program employee.
5.20 - 5.21 Layoff Pool 7/1/2005 When the agency opens a vacant position internally, do these Sections require the position be filled by an employee in Lay Off Pool that meets minimum requirements? No. Employees in the layoff pool are not eligible for internal vacancies.
5.20 - 5.21 Layoff Pool 7/1/2009 Does the agency have to hire an employee in the layoff pool at the same rate of pay this employee received from the agency when they were laid off, when the rate is well beyond the hiring rate? No. The agency may hire the laid off employee at a lower rate, either the hiring rate or reduce their current salary in accordance with Section 11.9.
6.4 Steward Time 7/19/2006 If a steward represents an employee at the employee's Step 3 hearing, can the steward claim steward time? Yes, only the time that cuts across the steward's normal work time, remembering that a steward is limited to 12 hours of steward time a month.
6.4 Steward Time 4/4/2008 Can a Union steward drive a State car to the Step 2 meeting where the steward is representing an employee? Or can the steward drive their personal car and request mileage reimbrusement? No and No.
6.6 Steward Time 11/18/1994 Can a steward and employee leave the worksite to process a grievance and what are the steward's time limits? If there is an area available in the building, leaving the work site would not be approved. The union stewards can assist, but the supervisor has the discretion to allow and monitor number of hours per month (12). Unless training, only one steward can work on a grievance at a time. The steward may advise the employee, but cannot actually be writing out the grievance (actual preparation of grievance is not done on steward time or work time).
7.1 Work Schedules 10/30/2001 An employee's work schedule is 4 - 10 hour days per week.  When the employee requests vacation or sick leave, do they request 10 hours?  What about holidays? The employee requests 10 hours per day for vacation or sick leave.  An observed holiday or holiday pay consists of 8 hours only, so the employee would have to supplement the holiday by requesting 2 hours of vacation or comp time.
7.2 Adjust Work Day 7/20/1995 Can the agency adjust an employee's work day if it is necessary for that employee to return to work at 7 p.m. for 15 minutes? Yes, it would be proper to make this change in the daily work schedule because as stated in Chet Hartwig v. DSS, this would not be a change in permanent work schedule. The agency should notify the employee 10-workdays in advance.
7.2 Change in Work Schedule 3/26/2012 Can the agency change an employee's work schedule to accommodate the employee's college class? Yes. If the agency and employee agree on the change, a ten work day notification is not necessary.
7.7 Shift Differential 1/18/1991 Revenue has flexible shifts and permanent day employees who normally work 8 am to 5 pm, and work one night a week. Does the contract require shift differential pay for night hours? When shift differential was negotiated, there was no intention that this premium is due for simple extension of a work day. Overtime pay is the premium in such situations.
7.7 Shift Differential 5/7/1997 If an employee's normal work schedule is 8-4:30 and is required to return to work from 7:30-10pm (special event) not call-back and not shift worker; how should the employee be paid? Since the employee did not work a second shift, it was just an extension of the work day, and 50% of the work is prior to 6 pm. No shift differential is due; just overtime if the employee works over 40 hours in the work week.
7.7 Shift Differential 6/9/1997 If an employee normally works 8 hrs., 12:30-8:30, and they are pre-notified of a long shift for one day, do they qualify for shift differential for the day they worked if 50% of the hrs were after 6 pm? No. The normal shift is 8 hrs with 50% worked before 6 pm. If the schedule is extended for one day, it becomes overtime.
7.7 Shift Differential 9/6/2001 Should shift differential be included (added to the regular rate) when calculating overtime? Yes. On-call pay is also used in the calculation if received in the applicable work period.
7.7 Shift Differential 10/16/2014 Employee normally works 10 pm to 6 am. Does the employee receive shift differential for the hours worked after the regular shift? No.  These extra hours are not a part of the regular shift as the employee has merely been held over. The State only pays shift differential for the normal shift, if it qualifies.  These extra hours may make the employee eligible for overtime pay during the week if the employee works more than 40 hours in the seven day period.
7.8 Call Back 5/13/1993 When an employee is called back in, is that time considered for overtime purposes? Hours actually worked are considered for calculation of overtime. If employee only works 1/2 hour, that is all that goes toward overtime calculation. Other portion of call back time is not added into the overtime calculation.
7.8 Call Back 5/28/1993 When an employee classified as a counselor is called at home to provide counseling over the phone, is it call-back time? No, the intent of call back time is to provide a premium for the disruption which causes the employee to leave home. The time spent on the telephone would be work time, however.
7.8 Call Back 1/6/1995 An employee usually works 7am to 5:30pm. Employee has been instructed to return to work at 7pm to shut-down a machine. Does the agency have to pay the employee for two-hours call back time? If they informed the employee at least 24-hours in advance, they do not have to give call-back pay.
7.8 Call Back 9/30/1996 Off duty employee called back for 1/2-hour hearing. Mgr. wants to pay for just 1/2 hour, but does the employee have the option to work the 2-hours for call back. Cannot pay the employee for just 1/2 hour of work time. Employee has to be paid for two hours, and employer can make employee work the two hours.
7.8 Call Back 12/18/2001 When it comes to compensation for "call back" time, can the time be placed in a "comp bank"? No.  Call back time should be paid in cash (pay warrant), the same as an employee's regular work hours.
7.9 Carrying Pagers 10/13/1997 Does an agency have to pay employees for carrying a beeper, if it doesn't interfere with their personal business? The agency does pay them if they have to return to work. It would depend on past practice. If you have been paying them, you should continue, and if you haven't, don't start.
7.10 Travel Time 6/6/2000 Does the agency pay travel time for an employee to go from home to the airport in the same city, when the employee is instructed to attend a conference via air travel? No. The intent of this section was to pay travel time if the employee travels from the city of residence, to a worksite at another City.
7.10 Travel Time 12/28/2001 Should the paid time employees receive for travel be counted in the 40 hour overtime computation? We need to look at the FLSA for guidance.  If the time falls during the normal work hours (not necessarily on the normal work days) of the employee or if the employee is serving as a driver of a vehicle, then the time should be counted in the 40 hour calculation.  If the employee is not driving a vehicle and the time is outside his/her normal work schedule, while it must be paid, the time should not be used in the 40 hour calculation.
7.12.d Meal Reimbursement 4/28/1995 If an employee adjusts his work day to travel and attend an evening meeting (and avoid overtime), does the agency have to pay for the evening meal? Yes, since the employee was traveling to the meeting the agency must pay the cost of the meal.
7.12.d Meals & One Day Travel 4/28/1993 EMS Coordinators travel to volunteer fire department meetings in the evening hours. (One day travel after 7:00 p.m.) Do we have to pay for the evening meal? Yes, They are not returning from their one day travel until after 7:00 p.m. If it is a banquet where their meal is furnished, then No.
7.13 Governor Appointed Committee 5/16/2006 Can an employee appointed by the Governor to serve on a State Board or Committee attend a conference or meeting of allied groups and call it work time? No.  The employee can attend meetings of the Board or Committee on work time, and can include travel time to and from the meeting if it falls during the employee's normally scheduled work hours.  Attending a related conference of the Board or Committee would require the employee to use vacation or comp time if approved.
8.1 Original Probation Re-class 5/5/1993 Can an agency put an employee on original probation as a result of reclassification action? No.
8.1 Original Probation 7/1/2017 If an employee transfers laterally from one state agency to another state agency, does the new agency have to pay the employee the same salary? Since the State is the employer, in a lateral transfer the agency should pay the employee the same salary as before, as long as it is the same class and pay grade.
8.1 Original Probation 7/25/2006 A State employee is employed by the State  Probation Administration.  If a Classified agency hires this employee, can the employee be placed on original probation? Yes.  Since this employee is not currently an employee within the Classified Personnel System (they are with a Constitutional Agency), the classified agency can place the employee on original probation.
8.1; 8.3; 8.4 Probation (Extended) 4/30/1996 Probation needs to be extended today and agency needs to notify employee in writing. Tomorrow employee becomes permanent. Employee is gone (SL or VL) can't reach by phone. Mail the notice of extension to the employee and Hand Deliver a copy to their residence. If no one home, tape it to the door.
8.2 & 9.5 Transfer & Promotion 7/21/1995 Can an employee receive a promotion/ transfer to another position they have applied for even though this particular employee had just received a promotion two weeks earlier and is on promotional probation? There is nothing in the labor contract that says you cannot do this. An employee can apply for another position within an agency even though they have just been promoted.
8.2 Original Probation Extended 2/18/2016 An employee is hired 9-1-15, and original probation is extended on 2-28-16 for another 6 months.  If the employee is promoted into a different position within the same agency on 3-16-16, can the agency begin a new original probationary period of 6 months for this employee, which can be extended another 6 months (if necessary)? Yes.
8.3 Probationary Periods 2/18/1998 Can the original probation period be extended? Yes. For a period not to exceed one year.
8.5 Original Probation Termination 5/21/1993 Can a labor contract employee be terminated on original probation without justification or cause? Cause needs to exist, however the employee does not have grievance rights. The employee still has rights under EEO laws, FLSA, FML, etc.
9.1 Vacancies 7/1/2009 When creating new functions in a division, does the agency have to create new positions and open them up agency wide, or can they just reassign the new duties to the positions they want and have them reclassified? In order to avoid the appearance of favoritism or pre-selection, the agency should create new positions with the new duties and open them up for all employees to apply. They should follow what's in their internal policies on recruitment/selection.
9.1 Seniority 7/1/1995 If two employees from different agencies apply for a job at the agency where one is employed and they score/rank substantially the same, how does the state seniority apply? Regardless of whether or not they are from different agencies, the one with the most state seniority gets the job.
9.1 Hiring 4/8/1999 If a new hire is released after just three weeks on the job, does the position have to be re-advertised or can the next person on the list be hired? As it has only been three weeks, you do not need to re-advertise.
9.1 New Hire 7/1/2017 Can contract salary limitations be a consideration for hiring, when two candidates are current state employees and one is an outside candidate? If all candidates are equally ranked, the state employee with the most seniority gets the position.  Agency budget/financial considerations is now one of the factors in filling job vacancies.
9.1 ADA 7/1/2009 An employee has a permanent disability and can't perform duties of unlocking and moving doors. The employee agrees to be transferred to a position with a lower minimum rate of pay. How does the agency do this? If accommodations aren't possible, the employee is eligible to take a voluntary transfer which they should agree to in writing. The agency could reduce salary to the lower minimum rate of pay (according to Section 11.9 of the contract) or request a salary adjustment from the Director of Personnel, if salary equity is an issue per Section 11.11.
9.5 Involuntary Transfer 7/22/1999 In an involuntary transfer, what is used to determine the seniority, is it years of service or years in classification? Section 9.5 uses the phrase "transfer the employee with the least seniority in said classification."
9.5 Transfers 11/7/2013 Can an agency use the internal transfer process under this Section to move the most senior employees, in the same class, who volunteer, into open positions and then post the final resulting vacant position. Yes.
9.5 Classification Seniority 4/21/2011 If a State employee leaves employment and returns to State employment in the same classification, would you be able to count the service prior to the break in service, as part of that employee's classification seniority?   Classification seniority for purposes of Section 9.5 will be considered the time worked since the time the employee was most recently hired.