Champion v. Hall Cnty.

• Decision Date: 23 April 2021
• Docket Number: No. S-20-481.,S-20-481.
• Citation: 309 Neb. 55,958 N.W.2d 396
• Parties: Eddy CHAMPION and Fraternal Order of Police Lodge No. 78, appellants, v. HALL COUNTY, Nebraska, et al., appellees.
• Court: Nebraska Supreme Court

309 Neb. 55

958 N.W.2d 396

Eddy CHAMPION and Fraternal Order of Police Lodge No. 78, appellants,

v.HALL COUNTY, Nebraska, et al., appellees.

No. S-20-481.

Supreme Court of Nebraska.

Filed April 23, 2021

Thomas P. McCarty, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., Lincoln, for appellants.

Ashley H. Connell and Erin Ebeler Rolf, Lincoln, of Woods & Aitken, L.L.P., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

I. NATURE OF CASE

The question presented in this appeal is whether a grievance committee of a county with fewer than 150,000 inhabitants exercised "judicial functions" for purposes of the petition in error statute,¹ when, after a hearing involving the presentation of sworn testimony and other evidence, conducted pursuant to procedures in the applicable collective bargaining agreement giving the aggrieved party the right to an evidentiary hearing, the committee decided, under largely undisputed facts, that the managerial and disciplinary rights of the applicable collective bargaining agreement permitted the director of the county department of corrections to exclude a correctional officer from working overtime unarmed transport shifts, as a consequence of a prior disciplinary action removing that officer from transport duty. The district court held that it lacked jurisdiction over the petition in error, because no statute specifically requires an evidentiary hearing before such a grievance committee and the grievance committee decided matters of law concerning the meaning of the collective bargaining agreement rather than matters of disputed fact.

II. BACKGROUND

Eddy Champion, a corrections officer with the Hall County Department of Corrections (Department), filed a grievance in relation to the denial of overtime working unarmed transport after Champion was subjected to discipline that included the indefinite removal from "transport duty." The parties followed the grievance procedures set forth as part of a collective bargaining agreement between the Department, as the employer, and the Fraternal Order of Police Lodge No. 78 (FOP), as representative of employee correctional officers and corporals of the Department. The collective bargaining agreement was signed by the president of the FOP and the chairperson of the Hall County Board of Corrections and Hall County Board of Supervisors. Following an evidentiary hearing before the Hall County Grievance Committee (Grievance Committee) and its written decision denying the grievance, Champion filed a petition in error, which the district court dismissed for lack of jurisdiction.

1. DISCIPLINARY ACTION

On January 18, 2019, following an administrative hearing, the director of the Department (Director) disciplined Champion for sending 48 fellow employees a post on social media he had written alluding to a " ‘story’ " he had to tell about the Department's lying to employees’ families and tricking them in order to get information and " ‘what they want.’ " This revolved around the Department's attempt to get employees’ family members’ contact information in order to plan a surprise appreciation project for its officers.

The Director determined that the post sent to fellow employees was in violation of the staff code of conduct provision that states, "Staff shall refrain from participating in the spreading of rumors, innuendo, or other unfounded information which may have a hurtful or negative effect on other employees, the Department or any county agency."

As part of Champion's discipline, he was "removed from transport duty indefinitely effective immediately."

2. MANAGEMENT AND DISCIPLINARY RULES UNDER COLLECTIVE BARGAINING AGREEMENT

In taking this disciplinary measure, the Director relied on article 3 of the collective bargaining agreement, which provided: "All management rights, functions, responsibilities and authority not specifically limited by the express terms of this Agreement are retained by the Employer and remain exclusively within the rights of the Employer."

This article further specified that management rights included, but were "not limited" to,

[t]he right to direct and arrange working forces including the right to hire, examine, classify, promote or not to promote, train, transfer, assign, and retain employees; maintain discipline and control and use of Department property; suspend, demote, discharge or take other disciplinary action against employees; and to relieve employees from duty due to lack of work, lack of funds, a decision to subcontract or discontinue Department operations or other legitimate reasons.

The rights identified in article 3 "are not in any way intended to be exclusive, but are merely intended to illustrate the rights retained by the Employer."

The Director also relied on article 11 of the collective bargaining agreement, which gives the Director the "full discretion and authority to impose disciplinary action."

Article 11 lists progressive discipline measures that "may be used, depending on the particular situation and severity of the infraction." These begin with an oral warning and end with suspension. They do not specify a restriction from certain duties.

Article 11 provides: "In most instances this procedure shall be followed. However, in instances of flagrant or repeated violations suspension or termination may be used." But article 11 then continues:

The ... Director and the Employer reserves [sic] the right to investigate, make judgments, and take appropriate disciplinary action in each individual incident. The level of severity of any infraction and the level and type of discipline to be imposed is solely at the discretion of the ... Director and the Employer.

3. GRIEVANCE

Champion did not file a grievance immediately from this disciplinary action. However, he subsequently filed an informal, and later a formal, grievance in relation to the denial of overtime for unarmed transport shifts that the Director denied pursuant to the disciplinary action.

(a) General Grievance Procedure Under Collective Bargaining Agreement

Grievance procedures set forth in the collective bargaining agreement state that they must begin with an informal resolution process involving a problem-solving meeting. If the aggrieved party is not satisfied with the response from the informal resolution process, the aggrieved party may submit the problem, in writing, to the Director, who must respond in writing within 14 days. Thereafter, the aggrieved party may present the appealed grievance to the Grievance Committee. Under the collective bargaining agreement, the Grievance Committee is to consist of two or more members of the Hall County Board of Corrections appointed by the county board chairperson.

(b) Factual Allegations

Champion's grievance alleged that on February 1, 2019, an overtime requirement for an unarmed transport position developed and was posted in advance. Champion was the most senior officer to request to work the shift, but was denied the opportunity. At the time of the grievance, Champion had been denied a total of two unarmed transport shifts for which he was the most senior officer to sign up.

(c) Overtime Provisions of Collective Bargaining Agreement

Champion asserted that these denials violated article 22, section 7, of the collective bargaining agreement. Article 22, section 7, provides: "When an overtime requirement is identified in advance, the Department may post the opening and allow staff to sign up. The senior officer will be scheduled and expected to work the overtime."

Champion asserted that the Director lacked the power under the collective bargaining agreement to remove him from transport duty, because the "disciplinary actions" described in article 11 therein referred only to oral warnings, written warnings, suspension without pay, suspensions with pay, and discharge. They did not refer to the removal of what Champion described as "negotiated contractual benefits and rights." Further, Champion asserted that the overtime provision of article 22, section 7, was an express term of the agreement that specifically limited the Director's management rights.

Champion sought to distinguish armed transport postings from unarmed transport officer postings, stating:

To be sure, [the] Director ... generally had the right to reassign ... Champion to a post other than his armed transport post. And, this was a significant change for ... Champion, who was assigned to the armed transport post following testing and a competitive selection process. By assigning ... Champion back to a non-transport post, [the] Director ... placed ... Champion in the same position as other officers who are not armed transport officers; and all of those other officers not assigned as armed transport officers have the right to work unarmed transport officer overtime shifts based upon seniority.

Champion also thought it arbitrary and capricious to deprive him from working as an unarmed transport officer, because it had no logical relationship with the actions for which he was disciplined.

(d) Director's Denial of Grievance

On March 15, 2019, the Director denied the formal grievance. The Director noted that transport duty is considered to be a " ‘plum’ " position that was appropriate to take away in light of the seriousness of Champion's inappropriate behavior.

And other overtime, not involving transport duties, was still available to Champion.

4. GRIEVANCE COMMITTEE REVIEW

Champion and the FOP appealed to the Grievance Committee and sought a hearing pursuant to article 8, section 4, of the bargaining agreement.

(a) Committee Review Procedures Under Collective Bargaining Agreement

The collective bargaining agreement sets forth that the Grievance Committee shall consist of two or more members of the Hall County Board of Corrections appointed by the county board chairperson.

A meeting of the Grievance Committee shall take place in a timely manner after the notice of appeal, and it shall furnish the aggrieved party...