| BONNIE JOLLY, and | | | CASE NO. 840 |
| NEBRASKA ASSOCIATION | | | |
| OF PUBLIC EMPLOYEES, | | | |
| LOCAL 61 OF THE AMERICAN | | | |
| FEDERATION OF STATE, COUNTY | | | |
| AND MUNICIPAL EMPLOYEES, | | | |
| | | ||
| Petitioners, | | | |
| | | ORDER ON MOTION FOR | |
| v. | | | SUMMARY JUDGMENT |
| | | ||
| STATE OF NEBRASKA, | | | |
| NEBRASKA STATE DEPARTMENT | | | |
| OF PERSONNEL, and NEBRASKA | | | |
| STATE DEPARTMENT OF REVENUE, | | | |
| | | ||
| Respondents. | | |
F. MOORE, J:
This matter comes before the Commission upon Respondents' Motion For Summary Judgment. A hearing was held on March 16, 1995, at which time evidence was adduced and the matter was orally argued to the Commission.
This case was initially filed on February 2, 1992 as an unfair labor practice complaint. Specifically, Petitioners alleged that the collective bargaining agreement between the parties was violated when the Respondent Nebraska Department of Personnel ("Personnel") eliminated the Revenue Property Tax Analyst III ("Analyst III") position, which reduced Petitioner Bonnie Jolly's pay and status to a Revenue Property Tax Analyst II ("Analyst II"). Petitioners further alleged that the circulation by the Respondent Nebraska Department of Revenue ("Revenue") of a memorandum written by Personnel advising Revenue of the actions Personnel would take in response to Jolly's appeal of her job classification was an attempt to interfere and restrain Jolly in her rights under the State Employees Collective Bargaining Act.
On April 1, 1992, Respondents filed a Motion for Summary Judgment ("Motion") arguing that the Commission of Industrial Relations ("Commission") lacked subject matter jurisdiction over the dispute. An evidentiary hearing was held on the matter.
The significant facts set out in the Commission's decision are that Jolly was an employee of the Department of Revenue and was covered by a collective bargaining agreement between NAPE/AFSCME and the State of Nebraska. On July 11, 1991, Jolly asked to be promoted from Revenue Property Tax Analyst I ("Analyst I") to Analyst III. After a desk audit, Personnel approved Jolly to be reclassified as a Analyst II. Jolly appealed this decision to the Classification Appeal Panel ("Panel"), which heard her appeal, and then classified her as a Analyst III.
The Commission's decision on the Motion further states that seven days after the Panel's decision, Personnel eliminated the classification of Analyst III and Jolly was returned to a Analyst II. It is the State's position, that its decision to remove this classification was made prior to the Panel's decision. On November 20, 1991, Jolly filed two grievances with the Nebraska State Personnel Board ("Personnel Board"). One grievance concerned the elimination of the classification of Analyst III, and the other claimed the State's elimination of Analyst III was in retaliation for Jolly's appeal to the Classification Appeal Panel.
The Commission determined that Petitioners' claim was not a breach of contract suit outside of the Commission's jurisdiction and denied the Motion for Summary Judgment. The Commission held in its Decision and Order, dated June 9, 1992, that although the elimination of a job classification is a prerogative of management, and therefore, not a bargainable issue, there were other unresolved prohibited practice issues. Specifically, the remaining issues were whether Petitioners waived their right to complain about elimination of job classifications since they never complained about past eliminations, whether the Commission should defer further action in this case until after a decision is rendered on the grievances, and whether the facts support a claim of retaliation.
On June 30, 1992, Respondents filed a Motion to Defer the proceedings before the Commission pending the outcome of the grievances before the Personnel Board, which the Commission granted on July 21, 1992. A hearing on the grievances was held before the Personnel Board, and on June 10, 1993, the Personnel Board issued an order affirming the decision of Revenue to promote Jolly to the position of Analyst II and eliminate the Analyst III position.
The Personnel Board's decision was appealed to the District Court of Lancaster County. On November 7, 1994, an order was issued affirming the Personnel Board's decision. The district court found, among other things, that Personnel's decision to eliminate the Analyst III position was not made in retaliation for Jolly exercising her rights under the labor contract.
On January 31, 1995, Petitioners filed a Motion to Reactivate this case before the Commission for purposes of obtaining a final order. Said Motion was granted on February 10, 1995. Respondents filed a second Motion For Summary Judgment on March 3, 1995, which is the subject of this Order.
On a Motion for Summary Judgment, the moving party must show that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Neb. Rev. Stat. ยง 25-1332 (1989). The issues remaining from the Commission's Decision and Order of June 9, 1992 have either been resolved or are moot. The Commission previously held that elimination of the Analyst III position was not a bargainable issue, but rather an issue of management prerogative. The Commission deferred further action in this case on July 21, 1992, pending outcome of Jolly's grievances before the Personnel Board. A decision on the grievances was rendered on June 10, 1993. The issue of whether the facts support a claim of retaliation was decided in the district court decision of November 7, 1994 and any further proceeding by the Commission on this issue is barred by the doctrine of res judicata. The final issue, whether Petitioners waived their right to complain about elimination of the Analyst III position, is moot.
Since there is nothing further for the Commission to consider in this case, Respondents' Motion for Summary Judgment, dated March 3, 1995, is hereby granted and this case is dismissed.
Entered March 29, 1995.
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