Nebraska Administrative Code
Topic - ADMINISTRATIVE SERVICES, DEPARTMENT OF
Title 273 - STATE PERSONNEL DIVISION
Chapter 14 - EMPLOYEE GRIEVANCE PROCEDURE
Section 273-14-008 - GRIEVANCE PROCEDURE AND TIME ALLOWANCES

Universal Citation: 273 NE Admin Rules and Regs ch 14 ยง 008

Current through March 20, 2024

If the agency in the first step fails to respond to the grievant within the specified time period, the grievance shall be considered denied, and the grievant may forward his/her grievance to the next step. If the grievant fails to advance a grievance to any step within the timelines specified, the grievance shall be considered discontinued by the grievant and the matter is considered closed. Time allowances at any step may be extended by mutual agreement of the parties.

008.01 STEP 1 - FORMAL WRITTEN GRIEVANCE. Within 15 work days of the occurrence of the grieved action (or from the day the employee could reasonably have known about the action) the employee must present an original formal written grievance to the agency head or designee. This document must contain a statement of the grievance by indicating the issue[s] involved, the relief sought, the date the incident or violation took place, if known, and the specific section(s) of the Rules involved. The agency head or designee will issue a decision in writing within 15 work days.

008.02 STEP 2 - APPEAL TO AGENCY HEAD. If dissatisfied with the resolution of Step 1, and if Step 1 was resolved by a subordinate of the agency head, the grievant has 10 work days to appeal the decision to the agency head or designee. The agency head will issue a decision in writing within 15 work days.

008.03 STEP 3 - APPEAL TO STATE PERSONNEL BOARD. The grievant may appeal the decision of the agency head to the State Personnel Board by filing the appeal with the DAS-Employee Relations Division within five work days of receipt of the agency head's decision. The original grievance record must be attached to the appeal.

008.03(A) HEARING OFFICER/STATE PERSONNEL BOARD HEARING. The State Personnel Board's ("Board") scope of review will be to determine whether or not the Personnel Rules have been violated and whether the agency's action was taken in good faith and for cause. The Board will decide the grievance in question based upon the issues presented in the written grievance filed pursuant to the grievance procedure. The Board may interpret relevant sections of the Personnel Rules and apply them to the particular case presented to it, but the Board has no authority to add to, subtract from, or in any way modify the Personnel Rules. The Board has the authority to order reinstatement and to award back pay. In cases involving discipline, the agency will present its case first and in all other cases the grievant will present his/her case first. Hearing officers will be appointed by the Board through the DAS-Employee Relations Division.
008.03(A)(i) The Administrator of the DAS-Employee Relations Division or their designee has the authority to set time limitations for:
(1) The length of time within which a hearing officer needs to be chosen;

(2) The amount of time the parties will have to present their case (each party will receive the same amount of time);

(3) The time within which a case needs to be heard after a hearing officer is appointed; and

(4) If allowed, the length of time that will be allowed for the parties to submit post hearing briefs.

008.03(A)(ii) Post hearing briefs will not be allowed in any case unless the parties and the hearing officer are all in agreement as to the need for such briefs.

008.03(A)(iii) The recommended decision of the hearing officer will be made in writing within 60 calendar days of the conclusion of the hearing and will include findings of fact and conclusions of law. The findings of fact will consist of a concise statement of the conclusions upon each contested issue of fact. The hearing officer will submit the recommended decision to the Board by sending it to the DAS-Employee Relations Division by first class U.S. Mail or by electronic means. The DAS-Employee Relations Division will send the Board's decision to the parties. If the hearing officer does not render a recommended decision within 60 calendar days from the last day of the hearing or the date the last brief was received, whichever is later, a penalty of $50 per day will be imposed and deducted from the hearing officer's fee for each day over the 60 calendar days the recommended decision is late, until the recommended decision is received. This penalty may only be waived upon mutual agreement of the parties and the Administrator of the DAS-Employee Relations Division or their designee.

008.03(A)(iv) Any meeting held pursuant to the grievance procedure may be recorded if the parties to said grievance mutually agree to the recording.

008.03(A)(v) Both parties shall provide the other party and the hearing officer with a listing of all exhibits to be introduced at the hearing, a copy of each exhibit, and a listing of individuals that the party plans to call as a witness in the hearing five calendar days prior to the hearing.

008.03(A)(vi) The pleadings in a contested case may include an appeal, notice, motion, stipulation, objection, order, or other formal written document filed in a proceeding before the Board. Any pleading filed in a contested case shall meet the following requirements:
(1) The pleading shall contain a heading specifying the name of the agency and the title or nature of the pleading, shall state material factual allegations and state concisely the action the agency is being requested to take, shall contain the name and address of the appellant, and shall be signed by the party filing the pleading, or when represented by an attorney, the signature of the attorney;

(2) The initial appeal shall also contain the name and address of the respondent;

(3) All pleadings shall be typed or handwritten in ink;

(4) All pleadings shall be filed at the DAS Employee Relations Division office. Filing may be accomplished by personal delivery or mail and will be received during DAS Employee Relations' Division regular office hours.

(5) The appellant shall serve a copy of the appeal on each respondent listed on the appeal personally, by first-class or certified mail, or by electronic delivery. Written proof of such service shall be filed with the DAS Employee Relations Division.

(6) All pleadings subsequent to the initial appeal shall be served by the party filing such pleading upon all attorneys of record or other representatives of record and upon all unrepresented parties. Service shall be made personally or by first-class, or certified mail, or by electronic mail. Written proof of such service shall be filed with the DAS Employee Relations Division.

008.03(A)(vii) SUBPOENAS. If either party to a grievance hearing before the State Personnel Board or designated representative wishes to use any individual as a witness in the presentation of their case, they may request the hearing officer or a designee to subpoena the attendance of the witness. Request forms for subpoenas are available in the DAS-Employee Relations Division and need to be submitted to the Division at least eight calendar days prior to the hearing. Notice of less than eight calendar days will not guarantee witness attendance. At least four work days before the scheduled hearing, the requesting party will notify the other party of the names of any individual(s) who have been subpoenaed as a witness. The requesting party or their representative is responsible to serve the subpoenas on the person(s) sought to be a witness. The subpoenas are to be served on the individual at least four work days before the scheduled hearing. The Board or designated representative may limit the number of witnesses either party may call to testify, considering relevancy of proposed testimony and whether or not it would be repetitious. The cost of serving any subpoenas will be paid by the requesting party. The parties will not be required to serve subpoenas by the process set out in statute but may serve them in person or by first class U.S. mail.
008.03(A)(vii)(1) Employees who are subpoenaed to attend an appeal hearing will be granted time off from their assigned duties to appear and all hours in attendance will be considered paid work time, including travel time.

008.03(A)(viii) Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the DAS-Employee Relations Division record will constitute the exclusive basis for State Personnel Board action in contested cases under the act.

008.03(A)(ix) Unless state law provides a hearing is not required, the Board/Hearing Officer will set a hearing date. Written notice of the time and place of the hearing and the name of the hearing officer, if known, must be given to the parties by the DAS Employee Relations Division. The notice must include proof of service.

008.03(A)(x) CONTINUANCES. The Board chairperson/hearing officer may grant extensions of time or continuances of hearings upon the Board chairperson's/hearing officer's own motion or at the timely request of any party for good cause shown. A party must file a written motion for continuance which states in detail the reasons why a continuance is necessary and serve a copy of the motion on all other parties.
008.03(A)(x)(1) GOOD CAUSE. Good cause for an extension of time or continuance includes, but is not limited to, the following:
(a) Illness of the party, legal counsel, or witness;

(b) A change in legal representation; or

(c) Settlement negotiations are underway.

008.04 In computing time prescribed or allowed by Chapter 14 of these rules and regulations or by any applicable statute in which the method of computing time is not specifically provided, days will be computed by excluding the day of the act or event and including the last day of the period. If the last day of the period falls on a Saturday, Sunday, or state holiday, the period shall include the next working day.

008.05 DISCOVERY.

008.05(A) At any stage after a grievance is put into writing, the employee and/or the agency has the right to request discovery relevant to the grievance. The employee and/or the agency may take the deposition of any witnesses or the other party and may make requests for admissions, documents or interrogatories which are relevant to the grievance. Discovery requests not made pursuant to a timely and properly filed grievance will be returned to the requesting party without action, other than a statement of the reason for such return. In matters where subpoenas are requested prior to the matter being filed at the third step, the Administrator of the DAS-Employee Relations Division or designee will have the authority to issue subpoenas.

008.05(B) Such requests and/or notice will be addressed to the party from which the discovery is sought. Only discovery requests which are relevant or would lead to relevant evidence for the grievance will be granted; however, in no case will discovery be granted which seeks evidence which is recognized as privileged by the Courts of this State.

008.05(C) Discovery requests need to be presented to the designated human resources representative/personnel contact and will be typed or printed legibly. Information sought in the discovery needs to be provided within 20 work days of receipt of request.

008.05(D) Either party may object to discovery requests. Objections to such requests need to be made, in writing, to the Administrator of the DAS-Employee Relations Division within 10 work days of receipt of the request. The Administrator of the DAS-Employee Relations Division or their designee will enter a written decision as to whether the objection will be granted or denied. Either party has 15 work days to comply/respond to a Decision/Order issued by the Administrator of the DAS-Employee Relations Division on an Objection to Discovery unless the parties mutually agree to another date.

008.05(E) If the grievance is at Step 3 when the objection to discovery is made, and a hearing officer has already been appointed or the appeal is already scheduled to be heard by the State Personnel Board (Board), then the objections to discovery will be made to the hearing officer or the Board, as appropriate, and the hearing officer or Board will consider the matter and issue a decision by the same process and within the same time limits set out above for matters where the objection is submitted to the Administrator of the DAS-Employee Relations Division.

008.05(F) Notwithstanding the above provisions, when an objection to discovery is made concerning the release of employment applications, scoring devices, rankings of applicants, lists of criteria considered in filling a position, or applicant scoring sheets, the Administrator of the DAS-Employee Relations Division or their designee will have the authority to conduct a hearing and enter an order to resolve such objections. The Administrator of the DAS-Employee Relations Division or their designee will also have the authority to issue protective orders.

008.05(G) Within five work days of receipt of the response to the discovery requests, the requesting party will notify the answering party of any failure on the part of the answering party to properly respond to the request.

008.05(H) The failure to respond to any discovery requests may result in the answering party being denied the right to introduce the requested evidence during any appeal hearing or other appropriate sanctions may be imposed.

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