The following FY2022-2023 State Personnel Board Decisions regarding employee grievances have been summarized for informational use only.
David Brown v. Nebraska Department of Administrative services Appeal (Rules)
The Appellant filed a grievance on April 18, 2022. The State Personnel Board designated LeRoy Sievers as Hearing Officer to determine whether the appeal was timely filed under the Classified System of Personnel Rules and Regulations and should be received. A hearing was held in accordance with the Nebraska Classified System Personnel Rules.
The Hearing Officer found that an incomplete and out of date website cannot supersede a validly adopted rule. The updated Rules were properly adopted and filed with the Secretary of State of Nebraska and consequently, Title 273 NAC has the effect of statutory law. 273 NAC 14-08.03 provides in part: “The grievant may appeal the decision of the agency head to the State Personnel Board by filing the appeal with DAS-Employee Relations Division within 5 workdays of the agency head’s decision….” Given that the decision at Step 1 was provided by the agency head, the plain language of 273 NAC 14-08.03 specifies that an appeal must be made within 5 workdays at Step 3. The Appellant did not file his appeal within 5 workdays, therefore the Hearing Officer found that the appeal was not timely and should be denied.
The State Personnel Board adopted the recommendation including the hearing officer’s conclusion that a request to determine whether Mr. Brown’s rights to due process have been violated raises a constitutional question which would require judicial determination. Such a request appears to be beyond the scope of review of the State Personnel Board and certainly in this instance is beyond the limited scope for the Personnel Board. The appeal was denied.
Corina Kuta v. State Fire Marshal (NAPE)
Appellant filed a grievance related to her performance evaluation and July 1st pay increase. The Respondent argued that the grievance was not filed timely. The State Personnel Board designated Melanie J. Whittamore-Mantzios 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 is in effect grieving the April 22, 2021 performance evaluation because that is the evaluation that controls the amount of her July 1, 2022 raise. The time to file a grievance is 15 days from when the incident being grieved occurred, or the employee should have known about it. The Appellant’ grievance was filed on September 26, 2021, and is therefore untimely. The Hearing Officer rejected the Appellant’s proposition that every paycheck is a continuing violation, and that each paycheck can be grieved. The amount of the raise is determined by the annual evaluation. There is no new grievable event that occurs at the issuance of each new paycheck. Therefore, the Hearing Officer recommended the grievance be denied as untimely.
The State Personnel Board adopted the recommendation and denied the appeal.
Elizabeth Ruiz v. Nebraska Department of Labor Appeal (NAPE)
The Appellant filed a grievance alleging that the Nebraska Department of Labor violated Article 17.1 of the Labor Contract when it assigned her to the Benefit Payment Control Unit without paying her at the minimum rate for the Unemployment Insurance Field Representative classification. The State Personnel 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 Appellant was classified as a UI Adjudicator; she believed she was performing the duties of a UI Field Representative. The hearing officer found that while the Appellant sometimes did a few job duties a Field Representative would also do, the examples of such work were neither as extensive nor as involved as those of a regular Field Representative’s job duties. The Hearing officer concluded that the Appellant did not establish that she performed the “duties of a position in a classification higher” than UI Adjudicator and, therefore, the Nebraska Department of Labor did not violate Article 17.1 of the Labor Contract.
The State Personnel Board adopted the recommendation and denied the appeal.
Jerry Judson, Appeal No. 2 v. Nebraska Department of Transportation (NAPE)
During a weekend in February, the Appellant was “on call.” While “on call,” the Appellant transitioned to active work status several times. He was not required to return to the office or an NDOT worksite; he worked remotely from home. The Appellant was paid his regular wages for actual time worked and was paid 12% of his regular compensation while in an “on call/standby” status. The Appellant filed a grievance arguing Section 7.8 of the Labor Contract guaranteed him a minimum of two hours each time he transitioned to active work status. The State Personnel Board designated Jim Titus as Hearing Officer, and a 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 Board found that an on call/standby employee cannot be “called back for duty” simply by transitioning to active work status. The Board noted that when Sections 7.8 and 7.9 are read together, the phrase “called back for duty” clearly means an employee who is “called back” to their office or work site. Therefore, Section 7.8’s guaranteed two-hour work minimum is only paid to on call/standby or off-duty employees who return to the “employer’s premises.”
The State Personnel Board denied the appeal.
The Appellant appealed the decision to the District Court.
District Court affirmed the decision of the Personnel Board.
Jerry Judson, Appeal No. 1 v. Nebraska Department of Transportation (NAPE)
During a weekend in January, the Appellant was “on call.” While “on call,” the Appellant transitioned to active work status several times. He was not required to return to the office or an NDOT worksite; he worked remotely from home. The Appellant was paid his regular wages for actual time worked and was paid 12% of his regular compensation while in an “on call/standby” status. The Appellant filed a grievance arguing Section 7.8 of the Labor Contract guaranteed him a minimum of two hours each time he transitioned to active work status. The State Personnel Board designated Jim Titus as Hearing Officer, and a 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 Board found that an on call/standby employee cannot be “called back for duty” simply by transitioning to active work status. The Board noted that when Sections 7.8 and 7.9 are read together, the phrase “called back for duty” clearly means an employee who is “called back” to their office or work site. Therefore, Section 7.8’s guaranteed two-hour work minimum is only paid to on call/standby or off-duty employees who return to the “employer’s premises.”
The State Personnel Board denied the appeal.
The Appellant appealed the decision to the District Court.
District Court affirmed the decision of the Personnel Board.
Steven Bennett v. Nebraska Department of Transportation (NAPE)
During a weekend in January, the Appellant was “on call.” While “on call,” the Appellant transitioned to active work status several times. He was not required to return to the office or an NDOT worksite; he worked remotely from home. The Appellant was paid his regular wages for actual time worked and was paid 12% of his regular compensation while in an “on call/standby” status. The Appellant filed a grievance arguing Section 7.8 of the Labor Contract guaranteed him a minimum of two hours each time he transitioned to active work status. The State Personnel Board designated Jim Titus as Hearing Officer, and a 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 Board found that an on call/standby employee cannot be “called back for duty” simply by transitioning to active work status. The Board noted that when Sections 7.8 and 7.9 are read together, the phrase “called back for duty” clearly means an employee who is “called back” to their office or work site. Therefore, Section 7.8’s guaranteed two-hour work minimum is only paid to on call/standby or off-duty employees who return to the “employer’s premises.”
The State Personnel Board denied the appeal.
The Appellant appealed the decision to the District Court.
Tina Monroe v. Nebraska Department of Veterans’ Affairs Appeal (Rules)
The Appellant filed a grievance against the Department of Veterans’ Affairs. Respondent’s counsel emailed Appellant several times to attempt to schedule a time to meet and confer and received no response. The Respondent argued that the Appellant abandoned her claim by failure to cooperate with her counsel and to communicate with the Respondent. The Respondent filed a Motion to Dismiss, and a Motion to Dismiss Hearing was held in accordance with the Nebraska Classified System Personnel Rules. The State Personnel Board designated Melanie J. Whittamore-Mantzios as Hearing Officer.
The Appellant was contacted and informed of the Motion to Dismiss hearing; however, she did not appear. The Hearing Officer recommended that the State Personnel Board dismiss the grievance for lack of prosecution and abandonment of her grievance.
The State Personnel Board adopted the recommendation.
Sydney Bent v. Nebraska Department of Health and Human Services Appeal (NAPE)
The Appellant filed a grievance when she was disciplined in the form of termination. The discipline was based upon an allegation of patient abuse. The State Personnel Board designated Paul J. Caffera as Hearing Officer, and the hearing was held in accordance with 2021-2023 State of Nebraska and NAPE/AFSCME Labor Contract.
The Hearing Officer found that the Appellant’s approach to handling the patient was inconsistent with the patient’s Individual Support plan and inconsistent with the Respondent’s Abuse/Neglect Policy. Therefore, DHHS did not violate the Labor Contract when it terminated Ms. Bent. The Hearing Officer recommended that the State Personnel Board deny the grievance.
The State Personnel Board affirmed the recommendation.
Sam Shaw v. Nebraska Department Library Commission Appeal (Rules)
The Appellant filed a grievance arguing his pay line should be adjusted. The State Personnel Board designated LeRoy W. Sievers as Hearing Officer. The Respondent filed a Motion to Dismiss. A Hearing was held in accordance with the Nebraska Classified System Personnel Rules.
The Hearing Officer found that the grievance was not filed properly as it did not cite or refer to a specific section(s) of the Rules involved, as required by the Nebraska Classified System Personnel Rules. The Hearing Officer recommended that the State Personnel Board dismiss the grievance.
The State Personnel Board affirmed the recommendation.