Administrative Services

EMPLOYEE RELATIONS

LINK website

Nebraska State Personnel Board Decisions

The following State Personnel Board Decisions regarding employee grievances have been summarized for informational use only.

1997

Larry Shaw and Bruce Prenosil v. Nebraska Department of Revenue: (NAPE -- 5.1, 5.10.b & 10.1) Larry Shaw and Bruce Prenosil filed grievances, appealing their termination on September 1, 1995, from the Nebraska Department of Revenue for failure to report to new job sites, and all parties mutually agreed to have John P. Glynn, Jr. serve as hearing officer, and a hearing was held in accordance with the provisions of the 1995-97 NAPE/AFSCME and State of Nebraska Labor Contract. The agency contends that termination was proper in lieu of the fact that the Grievants failed to report to new job sites following reassignment of duties, reclassification of their positions and reorganization of the Revenue Property Tax Division. The Appellants believed that this should have constituted a lay-off, as it did for other members of the Division back on February, 1995. The State also contended that it was not a lay-off and the Appellants were "not being involuntarily separated." Both Appellants made it known to several levels of supervision, that they would not accept the transfer to new locations in North Platte and Grand Island, since such a move would exceed the "50-mile" limit for involuntary transfers. The Appellants attended a predisciplinary hearing on August 31, 1995, for refusal to accept reassignment, and again stated they would not make the transfer. The State terminated the Appellants on September 1, 1995, when they reported to work in Lincoln and not the new job sites.

The hearing officer concluded that the agency had the right to assign new duties, request a reclassification and change the site of the positions, but only had the right to request the transfer of the Appellants to a geographical location no greater than 50 miles from their present site. The hearing officer further concluded that the agency's decision to terminate the Appellants rather than determining a lay-off for such employees due to a permanent transfer, was not made in good faith and for cause.

The Personnel Board considered the recommended decision of the hearing officer and issued the amended Order, "That the Grievants be reinstated to their positions effective the date they were terminated and be granted their layoff rights under the labor contract, as found in Article 5, as of the last day of their employment, as the intent of the Department of Revenue was actually to eliminate these positions and establish new positions elsewhere. If the retroactive exercise of these layoff rights entitled either Grievant to a position, then the Grievant shall have all lost wages and benefits restored from the time of termination until reinstatement, less any earnings from other employment during this period."

The agency appealed the Board decision to the Lancaster County District Court and the court overturned the Personnel Boards decision to reinstate the employees.

Judith Trackwell v. Nebraska Department of Administrative Services: (NAPE -- 10.1) Judith Trackwell filed a grievance, appealing her termination on October 31, 1994, from the Nebraska Department of Administrative Services for failure to satisfactorily perform her duties, and all parties mutually agreed to have Martel Bundy serve as hearing officer, and a hearing was held in accordance with the provisions of the 1995-97 NAPE/AFSCME and State of Nebraska Labor Contract. The agency contended that the Appellant failed to recognize and respond to both a zone expander alarm on October 11, 1994, and a fire alarm on October 25, 1994. The agency, through testimony, claimed that in both incidents, audible alarms were sounded and also visual "red" lights were activated which the Appellant failed to recognize and respond to. The Appellant, who was alone at the time of both incidents, claims that she did not see the light in one instance and was busy with other duties during the other. Through the Appellant's admission, she misunderstood the fire alarm and did not check the computer printout, and then, upon the return of the other guard, did call 911, but did not immediately provide required information. The agency had previously recommended training on procedures and informed the Appellant to take steps on her own to improve her knowledge, but the Appellant made little effort to increase her knowledge.

The hearing officer concluded that the termination was permissible considering the nature and severity of the misconduct. DAS did act in good faith and for cause and did not violate Section 10.1 of the Labor Contract.

The State Personnel Board accepted the recommended decision of the hearing officer that the agency's decision was made in good faith, for just cause and was in no way, a violation of the current labor contract. The decision of the agency in this matter was sustained.

The Appellant appealed the Board decision to the Lancaster County District Court in March, 1997. No decision has been rendered as of today.

Steve Bowder v. Nebraska Department of Correctional Services: (NAPE -- 1.6 & 2.3) Steve Bowder filed a grievance alleging work place harassment against the Nebraska Department of Correctional Services and that the investigation of this act was not properly completed. All parties mutually agreed to have John P. Glynn, Jr. serve as hearing officer, and a hearing was held in accordance with the provisions of the 1995-97 NAPE/AFSCME and State of Nebraska Labor Contract. The Appellant contended that the harassment consisted of a series of events that occurred approximately between the dates of October, 1993 and December, 1995. It was also alleged that the investigation into the alleged harassment charges and the fact that the investigation was not properly handled, constituted additional work place harassment.

The hearing officer concluded that there was no evidence offered to support the allegation of work place harassment, that it was apparent from the evidence that a thorough investigation was conducted by the agency, and recommended that the grievance be denied. The Board adopted the hearing officer's recommendation.

The Appellant appealed the Board decision to the Lancaster County District Court in June, 1997. No decision has been rendered as of today.

Harold Borchert v. Nebraska Department of Health and Human Services: (Rules -- 13.003.07) Harold Borchert filed a grievance, appealing his termination as Radiological Health Consultant on July 15, 1996, by the Nebraska Department of Health, for insubordination, acts or conduct which affect the employee's performance, and utterance of comments that are derogatory in the workplace. The State Personnel Board appointed David J. Carlbom to serve as hearing officer, and a hearing was held in accordance with the provisions of the State of Nebraska Classified System Personnel Rules and Regulations. The agency alleged that the Appellant violated a work agreement that was issued to improve his work performance and that his use of a "limerick" was a deliberate attempt to undermine or ridicule the agency's Work Place Harassment policy. The Appellant contended that the agency violated the terms of the Work Agreement and that he did not; thus, the Work Agreement should not have been used against him, and that since he did not complete the limerick, the incident did not violate the Work Place Harassment policy.

The hearing officer concluded that both parties violated terms of the Work Agreement, and therefore, the Appellant cannot be disciplined for violations of the Work Agreement; and that there was no persuasive evidence that the "limerick" episode interfered with the operation and management of the agency. The hearing officer also concluded that the agency failed to sustain its burden of proof that the actions in this case were not taken in good faith and for cause.

The Personnel Board modified the recommended decision of the hearing officer and issued the following Order: "The Appellant did not violate the terms of the Work Agreement," and directed the agency to reinstate the Appellant to the position of Radiological Health Consultant or a position within the same pay grade for which he is qualified, with benefits and full back pay, reduced by any earnings or unemployment compensation received by him.

The agency appealed the Board's decision to the Lancaster County District Court in June, 1997. The District Court affirmed the Board's decision, and the agency appealed to the Court of Appeals, where it was later withdrawn.

Matthew Johnson v. Nebraska Department of Social Services: (NAPE -- 10.1) Matthew Johnson filed a grievance, appealing his termination on April 30, 1996, from the Nebraska Department of Social Services for conducting alleged gambling activities while on the job. All parties mutually agreed to have John P. Glynn, Jr. serve as hearing officer, and a hearing was held in accordance with the provisions of the 1995-97 NAPE/AFSCME and State of Nebraska Labor Contract. Acting on a tip, the Nebraska State Patrol began an investigation into gambling activities at the Appellant's place of employment and offered testimony that the Appellant did furnish information on gambling and did receive payment of gambling debts from the investigator.

The hearing officer concluded that while the Appellant did not take bets at his work place, his use of State property to offer gambling information and his acceptance of gambling debts does constitute illegal activities, and that the severity of this activity did warrant termination, rather than progressive discipline. The hearing officer recommended that the agency's actions be sustained, the termination be upheld, and the Appellant's grievance be denied.

The State Personnel Board accepted the recommended decision of the hearing officer that the agency's decision was made in good faith, for just cause, the decision of the agency in this matter was sustained and the Appellant's grievance be denied.

Allan Ackerman v. Nebraska Department of Health and Human Services: (Rules -- 13.003.03) Allan Ackerman filed a grievance, appealing his termination as Program Manager from the Nebraska Department of Health, on July 25, 1996, for work place harassment. The State Personnel Board appointed William J. Wood to serve as hearing officer, and a hearing was held in accordance with the provisions of the State of Nebraska Classified System Personnel Rules and Regulations. The agency terminated the Appellant for alleged work place harassment, insubordination, failure to comply with rules and regulation and acts or conduct affecting the employee's performance. The work place harassment incidents involved an employee that the Appellant supervised, and the other charges stem from the Appellant's conduct following the incidents.

The hearing officer concluded that the agency was not able to satisfy its burden of proof in any of the six allegations against the Appellant, and further, that the actions of the agency were not taken in good faith and for cause, and that the termination of the Appellant be reversed. The hearing officer recommended that the Appellant be re-employed immediately and receive all lost wages and benefits, less any unemployment compensation or wages, and benefits from other employment received during the period following his termination.

The State Personnel Board accepted the recommended decision of the hearing officer that the agency's decision was not made in good faith, for just cause, and the Appellant be re-employed immediately.

The agency appealed the Board decision to the Lancaster County District Court in August, 1997. The parties settled and the case was withdrawn and dismissed.