Editor's Note: Legal Line is a feature that will periodically appear in E-Line. Prepared by members of the NACO legal staff, Legal Line is not intended to serve as legal advice. Rather, it is published to alert readers to court decisions and legal or advisory matters important to county government. For a specific opinion on how the information contained in this article or that which will be discussed in future issues relates to your county, consult your county attorney or your personal counsel.

Employment Grievance Failed to Comply With Jurisdictional Requirements

In Turnbull v. County of Pawnee, 19 Neb. App. 43, -- N.W. 2d -- (2011), a county employee used an administrative grievance process to challenge the discipline his employer had imposed. The employee was dissatisfied with the result of that process; therefore, he brought an action in district court. The district court dismissed the employee's action because the employee was required to comply with the petition in error statutes (Neb. Rev. Stat. § 25-1901 et seq.).  The district court determined that the employee had failed to provide a record of the proceedings held before the administrative body, as required by § 25-1905. Based on the record provided to it, the Court of Appeals affirmed the lower court's conclusion that the employee had failed to comply with the jurisdictional prerequisites of § 25-1901 et seq. 

The district court, following various grievance proceedings, ultimately concluded that the employee's complaint should be characterized not as an original breach of contract action, but, rather, as seeking a review of disciplinary action taken by his employer. 

In this case, the employee had been accused of violating a safety provision. There were various grievance proceedings that occurred in the process.  The employee first received an informal hearing and then suspended without pay for 30 days after the hearing.   As provided for in the collective bargaining agreement, the employee filed a grievance. The employee's grievance was heard first by his supervisor and then by the Board. Throughout the grievance process, the Court of Appeals did not have a formal record of what had happened at the proceedings.  However, the questions to be resolved at each stage involved the employee's alleged actions and pertained to questions of what he did, where, when, how, why, and with what motive or intent; the questions concerned whether the employee violated a safety provision, whether there was any mitigating evidence, and the appropriate discipline to be imposed. It was stated by the Court of Appeals, "[T]he questions being resolved at each stage of the grievance process were adjudicative in nature."

Since the questions being resolved were adjudicative in nature and because the Board was engaging in a judicial function in hearing the employee's appeal of the denial of his grievance related to the discipline imposed, the petition in error statutes were applicable and dictated the proper steps for perfecting jurisdiction in the district court.

A petition in error is to be perfected by following § 25-1903 that directs the petitioner to file the petition to the district court setting forth the errors complained of. (Citations omitted.)  Additionally, § 25-1905 directs the petitioner to file with his or her petition a transcript of the proceedings or a praecipe directing the tribunal, board, or officer to prepare the transcript of the proceedings. (Citations omitted.)  

The Court of Appeals noted that the process advocated by the employee would arguably render meaningless the grievance process agreed to by the parties in the collective bargaining agreement. The court commented, 

[The employee]  has attempted to frame his proceedings in the district court as an original law action for breach of contract, requiring no review of the lower tribunal proceedings and no deference to the administrative conclusions concerning his discipline and his grievance. In a proper petition in error proceeding, the district court determines whether the lower tribunal acted within its jurisdiction and whether the tribunal's decision is supported by sufficient relevant evidence; the review accords substantial deference to the administrative body." (Citations omitted.) To permit [the employee] to simply disregard the entire grievance process and start entirely anew with an evidentiary trial before the district court would be tantamount to encouraging grievants to simply go through the motions of the grievance process and then seek to litigate employee disciplinary matters in the district court. 

The Court of Appeals concluded not only that such action would ignore the intent of the grievance process set forth in the collective bargaining agreement, but also that it would endorse a legal course of action that does not appear to have ever before been endorsed in our jurisdiction.  The Court further concluded that the employee's "breach of contract" action was more properly characterized as an attempt to appeal the administrative denial of his grievance concerning discipline imposed for his violation of safety policies. The employee failed to satisfy statutory prerequisites for perfecting jurisdiction in the district court through petition in error proceedings. The district court was found to have properly dismissed the employee's action for want of jurisdiction and the Nebraska Court of Appeals affirmed the lower court's decision.