The following FY2021-2022 State Personnel Board Decisions regarding employee grievances have been summarized for informational use only.
Matt Piersol v. History Nebraska (NAPE)
Appellant filed a grievance related to his performance evaluation and July 1st pay increase. The Appellant received an unsatisfactory score on his 2021 annual performance evaluation which made him ineligible for an annual merit pay increase in 2021. The Respondent argued that the grievance was not filed timely. The State Personnel Board designated Jim Zalewski as Hearing Officer to determine whether this grievance was filed timely, and the hearing was held in accordance with the with 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract. The rules of evidence were not invoked.
The hearing officer found that the Appellant’s annual performance review was conducted under the 2019-2021 Labor Contract, which did not contain any provision allowing for the grievance of an unsatisfactory performance review or resulting wages. Additionally, the Labor Contract states that grievances must be filed within 15 workdays of the occurrence of the grieved action or from the day the employee should have known about the action. In June of 2021, the Respondent made the Appellant aware that he would not receive a pay raise based upon his performance evaluation. The hearing officer found that the Appellant did not file a grievance within 15 workdays of the date he was made aware of this issue. Therefore, the Hearing Officer recommended the grievance be denied as untimely. The State Personnel Board adopted the recommendation and denied the appeal.
Karen Keehr v. History Nebraska (NAPE)
Appellant filed a grievance related to her performance evaluation and July 1st pay increase. The Appellant received an unsatisfactory score on her 2021 annual performance evaluation which made her ineligible for an annual merit pay increase in 2021. The Respondent argued that the grievance was not filed timely. The State Personnel Board designated Jim Zalewski as Hearing Officer to determine whether this grievance was filed timely, and the hearing was held in accordance with the with 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract. The rules of evidence were not invoked.
The hearing officer found that the Appellant’s annual performance review was conducted under the 2019-2021 Labor Contract, which did not contain any provision allowing for the grievance of an unsatisfactory performance review or resulting wages. Additionally, the Labor Contract states that grievances must be filed within 15 workdays of the occurrence of the grieved action or from the day the employee should have known about the action. In June of 2021, the Respondent made the Appellant aware that she would not receive a pay raise based upon her performance evaluation. The hearing officer found that the Appellant did not file a grievance within 15 workdays of the date she was made aware of this issue. Therefore, the Hearing Officer recommended the grievance be denied as untimely. The State Personnel Board adopted the recommendation and denied the appeal.
Cindy Drake v. History Nebraska (NAPE)
Appellant filed a grievance related to her performance evaluation and July 1st pay increase. The Appellant received an unsatisfactory score on her 2021 annual performance evaluation which made her ineligible for an annual merit pay increase in 2021. The Respondent argued that the grievance was not filed timely. The State Personnel Board designated Jim Zalewski as Hearing Officer to determine whether this grievance was filed timely, and the hearing was held in accordance with the with 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract. The rules of evidence were not invoked.
The hearing officer found that the Appellant’s annual performance review was conducted under the 2019-2021 Labor Contract, which did not contain any provision allowing for the grievance of an unsatisfactory performance review or resulting wages. Additionally, the Labor Contract states that grievances must be filed within 15 workdays of the occurrence of the grieved action or from the day the employee should have known about the action. In June of 2021, the Respondent made the Appellant aware that she would not receive a pay raise based upon her performance evaluation. The hearing officer found that the Appellant did not file a grievance within 15 workdays of the date she was made aware of this issue. Therefore, the Hearing Officer recommended the grievance be denied as untimely. The State Personnel Board adopted the recommendation and denied the appeal.
Matthew Heckman v. Nebraska Department of Correctional Services Appeal (Rules)
The Appellant filed a grievance alleging that he was not transferred properly because the Respondent did not provide a written reason for the reassignment in violation of its Team Member Selection Policy (Policy). Additionally, the Appellant alleges that because of his transfer, his compensation was reduced because he no longer was eligible to receive Merit Incentive Pay. The State Personnel Board designated LeRoy W. Sievers as Hearing Officer, and the hearing was held in in accordance with the Nebraska Classified System Personnel Rules.
The Board found that salary means regular, basic pay; Merit Incentive Pay does not constitute salary. Regarding a written reason for reassignment, the Board found that that a written reason is not a condition precedent to make a reassignment effective. Furthermore, the Board noted that the Appellant was given a reason for his assignment; he was being “administratively reassigned.” The Policy does not say the reassignment reason must be detailed, expansive or even explanative – it merely says that a “reason for the transfer” will be given. Finally, the Board noted that the Policy says, “Management retains the discretion to reassign team members in accordance with the applicable labor contract or State Personnel Rules and Regulations.” The Board found that the Appellant was transferred in compliance with the Personnel Rules.
The State Personnel Board denied the appeal.
Boris Ilic v. Nebraska Department of Correctional Services Appeal (Rules)
The Appellant filed a grievance after he was disciplined in the form of a six-months of disciplinary probation. Ilic’s discipline was based upon allegations that he made unprofessional and inappropriate comments about and in front of subordinates. The State Personnel Board designated Jim R. Titus as Hearing Officer, and the hearing was held in in accordance with the Nebraska Classified System Personnel Rules.
At the hearing, the Appellant admitted he made the comments and admitted the comments violated the Personnel Rules and NDCS policy. The Hearing Officer found that the discipline was for just cause and was progressive and proportionate in nature. The Hearing Officer recommended that the State Personnel Board deny the grievance.
The State Personnel Board affirmed the recommendation.
Alan “AJ” Moore v. Nebraska Department of Veterans’ Affairs Appeal (Rules)
On or about July 15, 2021, the Appellant filed a grievance concerning matters related to performance management and his performance evaluation. As relief, the Appellant requested that he receive a satisfactory performance evaluation for calendar year 2020, and that he be provided a 2% pay increase retroactive to July 1, 2021. The Respondent argues that the grievance was not filed timely. The State Personnel Board designated Sean Davis as Hearing Officer to determine whether this grievance was filed timely, and the hearing was held in accordance with the Nebraska Classified System Personnel Rules.
The hearing officer noted that the reason Appellant did not receive the July 1st pay increase was because he received an unsatisfactory performance evaluation/score for calendar year 2020. Therefore, the performance evaluation is the aggrieved action. The Appellant was aware of his scores by at least May 6, 2021. The hearing officer stated that the grievance would have needed to have been filed by within 15 work days of that date in order to be timely.
The hearing officer found that this grievance was not filed timely in accordance with 273 NAC 15.008.02 of the Classified System Personnel Rules and Regulations, and therefore, the Board has no authority to grant the Appellant’s requested relief in the form of satisfactory evaluation for calendar year 2020. Without a satisfactory evaluation, the Appellant remains ineligible for the 2% pay increase. The State Personnel Board adopted the recommendation and denied the appeal as untimely filed.
Marie Veronica DeBlieck v. Nebraska Department of Health and Human Services Appeal (NAPE)
The Appellant filed a grievance after she was not allowed to work 13.5 hours of voluntary overtime, and she requested backpay as relief. The State Personnel Board (Board) designated Jeanelle R. Lust as Hearing Officer, and the hearing was held in accordance with the with 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract. The rules of evidence were not invoked.
The Respondent stipulated that it violated Articles 12.2 and 12.3 of the Labor Contract but denied that back wages was an available remedy because the Appellant never actually worked the overtime hours. The Hearing Officer was not persuaded by the Respondent’s argument. She noted that in all backpay awards, the employee did not actually work the hours, but the employee is entitled to the award because it is the employer’s actions which prevented the employee from working the hours. No alternative solution for making the Appellant whole was provided by the Respondent, and the Hearing Officer found that the simplest solution under the labor contract was to pay the Appellant for the 13.5 hours of overtime that was incorrectly denied. The Hearing Officer recommended the appeal be upheld and the relief sought be granted. The State Personnel Board adopted the recommendation.
Tamara Cole, on her own behalf and on behalf of all similarly situated FOP 88 Employees v. Nebraska Department of Health and Human Services Appeal (FOP)
The Appellant filed a grievance in response the Respondent’s new overtime policy. The Appellant argued the policy was in violation of Section 12.8 of the FOP/State of Nebraska Labor Contract. The State Personnel Board (Board) designated David M. Gaba as Hearing Officer, and the hearing was held in accordance with the Nebraska Classified System Personnel Rules. The rules of evidence were not invoked.
The Board agreed with the hearing officer that the Respondent’s new overtime accrual policy violates Section 12.8 of the Labor Contract because a plain reading of Section 12.8 says the Department cannot restrict or mandate conditions on its employees’ choice to receive compensatory time off before an employee makes that choice. However, the Board noted that after the employee makes that choice, the Department can elect to pay the employee cash “at any time for overtime obligations.” Thus, the Board agreed with the hearing officer’s recommended order that the Department’s new overtime policy violates Section 12.8 and is unenforceable to the extent it restricts the Appellant’s and other similarly situated employees’ discretionary choice to receive compensatory time off before that choice is made.