Administrative Services

EMPLOYEE RELATIONS

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Nebraska State Personnel Board Decisions

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

1998

Margaret Wehland v. Nebraska Department of Correctional Services: (Rules -- 13.003.03) Margaret Wehland filed a grievance, appealing the disciplinary demotion issued by the Nebraska Department of Correctional Services, and the State Personnel Board appointed Andrew W. Russell 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 contended that the Appellant violate a directive of DCS. The Appellant testified that her discipline was too severe, since she was only found guilty of one of the seven original charges.

The hearing officer found that the incident did take place and that the Respondent was correct in issuing discipline.  He also found that the level of disciplinary action was too severe and recommended that the discipline be revoke, returned to the Agency for reconsideration and the grievance be upheld.

The State Personnel Board accepted the recommended decision of the hearing officer that the grievance filed herein by Margaret Wehland be upheld and that the actions of the agency be overturned.

Steve Bowder v. Nebraska Department of Correctional Services #2: (NAPE -- 10.1) Steve Bowder filed a grievance appealing his termination by the Nebraska Department of Correctional Services. The parties agreed to have Sam Van Pelt serve as hearing officer, and a hearing was held in accordance with the provisions of the 1997-99 NAPE/ AFSCME and State of Nebraska Labor Contract. The Appellant contended that he was denied due process, in that he was not allowed to have a Union representative present during a counseling session, which could have, and did, lead to disciplinary action. The agency contended that it was not a disciplinary counseling and that after the Appellant refused to continue with the meeting, he was escorted from the facility, whereupon, he made loud and inappropriate statements to the warden.

The hearing officer found that the Appellant was entitled to representation, and therefore, a violation by the agency did occur. The Appellant’s conduct, although not appropriate, was done to protect his rights. The hearing officer also concluded that if the union representative was allowed to be present, the entire incident would have been avoided. It was the hearing officer’s recommendation that the employee be reinstated to his previous position and reimbursed all back pay and benefits.

The State Personnel Board accepted the recommended decision of the hearing officer that the grievance filed herein be upheld.

Brad Exstrom v. Nebraska Department of Correctional Services: On its own motion, the Personnel Board conducted a hearing and dismissed this appeal as the finding of facts showed the appeal was not timely filed.

Robert DeMoss v. Nebraska Investment Council: On a Motion to Dismiss filed by the agency, the Personnel Board conducted a hearing and sustained the motion for the reason that the Board was without jurisdiction as the grievant had by-passed step two.

Joe D. Hanson v. Nebraska State Fire Marshal: (Rules -- 13.001.02) Joe D. Hanson filed a grievance, appealing two written reprimands issued by the Nebraska State Fire Marshal, and the State Personnel Board appointed Sherri Collins-Wimes to serve as hearing officer. A hearing was held in accordance with the provisions of the State of Nebraska Classified System Personnel Rules and Regulations. The Appellant was charged with violating a direct order from the State Fire Marshal and allowing a subordinate to attend an out-of-state training prior to completing a CPR instructor course. The Appellant was also charged with violating an order from the State Fire Marshal not to attend any overnight, out-of-town meetings with a co-worker. The Appellant claimed that his attendance at the out-of-town meeting with a co-worker was done on vacation leave and not work time.

The hearing officer found, through evidence and testimony, that the agency did have the just cause for imposing a written reprimand for allowing the subordinate to attend the out-of-state meeting following a direct order to the contrary. The hearing officer also found that the agency did not have the authority to take action against the Appellant while on approved vacation leave.

The recommendation to the Personnel Board was to uphold the agency’s action of imposing the written reprimand for the violation of the direct order allowing the out-of-state travel by a subordinate, but rescind the second reprimand for the action of the Appellant while on vacation. The State Personnel Board accepted the recommended decision and it was so ordered.

Keith Rodaway v. Nebraska State Patrol: (SLEBC -- 21) Keith Rodaway filed a grievance claiming that he was denied longevity pay increases and insufficient payment under wage settlement. The parties agreed to have Roland J. Santoni serve as hearing officer, and a hearing was held in accordance with the provisions of the 1995-97 Labor Contract between the State of Nebraska and the State Law Enforcement Bargaining Council. Rodaway began service with the State Patrol in November, 1971, and then left service in April, 1977. He then returned to the State (Correctional Services) in December, 1978, and then transferred to the Patrol in September, 1980.

The hearing officer found that there was a break in service which exceeded one (1) year, and the service anniversary date was December, 1978, not November, 1971. Therefore, he was not entitled to the 20-year service until December, 1998. The State Personnel Board voted unanimously to accept the recommended decision to deny the appeal.

William Ellingrud v. Department of Labor: (Rules -- 4) William Ellingrud filed a grievance claiming that the Department of Labor violated the Classified System Rules and Regulations by hiring a Job Training Director without following proper procedures, which included competitive selection process. The State Personnel Board appointed John P. Glynn, Jr., 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. At the hearing, the agency acknowledged its error, and that it would vacate the position and initiate a competitive selection process. The agency also stated that the prior selectee’s experience would not be considered and that if the grievant was selected, the agency would have his pay and benefits adjusted retroactively.

The hearing officer found that the agency had taken action in good faith and for cause to remedy the grievance, and therefore, recommended that since no additional relief was available, the appeal be denied. The State Personnel Board unanimously accepted the decision.

Michael Paulson v. Nebraska Department of Health & Human Services: On its own motion, the Personnel Board conducted a hearing and dismissed this appeal as the finding of facts showed the appeal was not timely filed at third step.

Brad Exstrom v. Nebraska Department of Correctional Services #2: On its own motion, the Personnel Board conducted a hearing and found that the appeal was filed in a timely manner at first step and should proceed. (This appeal has been heard and the recommended decision is pending.)

Janene Rathbun v. Nebraska Department of Roads: (NAPE -- 10.1) Janene Rathbun filed a grievance appealing her termination by the Nebraska Department of Roads. All parties mutually agreed to have Robert Filbeck serve as hearing officer, and a hearing was held in accordance with the provisions of the 1997-99 NAPE/AFSCME and State of Nebraska Labor Contract. The Appellant contended that she was denied due process, in that she was terminated without being presented a detailed, written statement of allegations and that the disciplinary action was too severe, since she had been a state employee for 24 years with no prior disciplinary action. Following the Appellant’s transfer to a different division, the agency believed there was a performance problem and began to keep a detailed log of her activities. Two-months into the position, the agency notified the Appellant of a pre-disciplinary meeting, and subsequently terminated the employee.

The hearing officer found that the written statement the Appellant received did not list violations as required. The agency also did not satisfy the contractual requirement for progressive disciplinary action with termination. The hearing officer recommended that the Appellant be reinstated with full back pay and benefits, less amounts she had received since termination. The State Personnel Board voted unanimously to accept this recommendation.

Andrea Lindner v. Department of Health & Human Services #5: (Rules) hearing officer Sherri Collins-Wimes recommended the dismissal of the appeal following a Motion to Dismiss filed by the Appellant. The State Personnel Board unanimously accepted the decision.

Margaret Wehland v. Nebraska Department of Correctional Services #2: On its own motion, the Personnel Board conducted a hearing and dismissed this appeal as the finding of facts showed the appeal was not timely filed at third step.

Raymond Pina v. Nebraska Department of Labor: On its own motion, the Personnel Board conducted a hearing and dismissed this appeal as the finding of facts showed the appeal was not a grievable matter.

Joseph Pospisil v. Nebraska Department of Correctional Services: On its own motion, the Personnel Board conducted a hearing and dismissed this appeal as the finding of facts showed the appeal was not timely filed at third step.

Glenda Eden v. Nebraska Department of Health & Human Services: (NAPE -- 10.1) Glenda Eden filed a grievance appealing her termination by the Nebraska Department of Health & Human Services. All parties mutually agreed to have Peter Blakeslee serve as hearing officer, and a hearing was held in accordance with the provisions of the 1997-99 NAPE/AFSCME and State of Nebraska Labor Contract. The Appellant contended that she was denied due process, in that she was not given specific dates and times of the alleged abuse; that the specific sections of the labor contract were not cited, and that it was not progressive discipline. The agency showed, through exhibits and testimony, that the Appellant was given specific incidents, and referred to sections of the manual regarding those violations, which the Appellant was previously afforded. The agency showed that its action to terminate was just, in that the offenses were severe and the Appellant was in a position where she worked alone and was not easily supervised.

The hearing officer found that the agency did follow the labor contract with regard to each of the Appellant’s allegations and that the level of disciplinary action was commensurate with the nature and severity of the offense. The recommendation to deny the appeal and uphold the termination was unanimously accepted by the State Personnel Board.

Steve Wilson v. Nebraska Department of Health & Human Services: On its own motion, the Personnel Board conducted a hearing and found that the appeal brought a grievable issue and a hearing officer should be appointed and a complete hearing conducted.

Joseph Kisicki v. Nebraska Equal Opportunity Commission #2: (Rules -- 13.001.01) Joseph Kisicki filed a grievance, appealing his termination by the Nebraska Equal Opportunity Commission. The State Personnel Board appointed Sherri Collins-Wimes 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 Appellant contended that the notice of charges did not comply with the Classified System Rules and Regulations; the charges were false and that the Director violated the Nebraska Fair Employment Practices Act, in that the termination was a retaliatory action following the Appellant’s filing of a discrimination law suit against the Director. The agency claimed that the Appellant did not have a positive attitude, disobeyed orders, and held personal hostilities against the Director.

The hearing officer found that the agency failed to include references to specific rules, regulations, policies and procedures that were violated by the Appellant and that the agency also failed to prove that the violations actually occurred. It was the hearing officer’s recommended decision that the Appellant be immediately reinstated and awarded back pay and benefits. The State Personnel Board unanimously accepted the recommendation. The agency appealed this decision to the District Court, where it is pending.

Merna Jackson v. Department of Health & Human Services: (Rules -- 14.009.03) Merna Jackson filed a grievance, appealing the decision by the Department of Health & Human Services to select another applicant for a position that she had also applied for. 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 Appellant contended that the vacant position was posted three different times and despite scoring the highest, she was not given the position. She further alleged the position was opened the last time so a specific person could apply. That person was selected, even though he scored lower than Jackson, even after the scoring device was changed to afford him more points.

The hearing officer found that the agency re-opened the position and also changed the scoring device specifically to place some else in the position and to exclude the Appellant from consideration. The hearing officer also found that the agency did not act in good faith and for just cause when it failed to consider the higher score of the Appellant and her on-the-job experience. It was the hearing officer’s recommendation that the Appellant be placed into that position and that she be compensated for any difference in salary between the amount she had been paid and would have been paid in this position. The State Personnel Board unanimously accepted the recommendation. The agency appealed this decision to the District Court, where it is pending.

Bruce Rowe v. Department of Health & Human Services: (Rules -- 14.009.03) Bruce Rowe filed a grievance, appealing his termination by the Department of Health & Human Services. The State Personnel Board appointed Samuel Van Pelt 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.

During the proceedings, the Appellant's representative entered a Motion to Sustain the Appeal, based on the Nebraska Court of Appeals decision in the case of Louis Martin v. Department of Public Institutions. The hearing officer contended that the decision did affect this case, and suspended all further proceedings. The hearing officer entered a recommended decision that the State Personnel Board reverse the termination and reinstate Rowe to his previous position. The State Personnel Board voted 4-1 to accept the recommendation. The agency appealed this decision to the District Court, where it is pending.