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Nebraska Supreme Court Advance S

302 Nebraska Report

BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 847

Betty Jane Bower-Hansen, appellant, v. N

Department of Health and Human 

et al., administrative agencies of 

State of Nebraska, and the St

of Nebraska, appellees.

___ N.W.2d ___

Filed April 12, 2019. No. S-17-1278.

1. Administrative Law: Judgments: Appeal and Error. A judgment or 

final order rendered by a district court in a judicial review pursuant to 

the Administrative Procedure Act may be reversed, vacated, or modified 

by an appellate court for errors appearing on the record.

2. ____: ____: ____. When reviewing an order of a district court under 

the Administrative Procedure Act for errors appearing on the record, the 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

3. Contracts. When the terms of a contract are clear, a court may not 

resort to rules of construction. Instead, the terms of the contract are to 

be accorded their plain and ordinary meaning.

4. ____. Courts do not have the power to rewrite a contract to provide 

terms contrary to those that are expressed.

5. ____. It is not the province of a court to rewrite a contract to reflect the 

court’s view of a fair bargain.

Appeal from the District Court for Lancaster County: Jodi L.

Nelson, Judge. Affirmed

Nicholas J. Welding, of Norby & Welding, L.L.P., for 

appellant.

Douglas J. Peterson, Attorney General, and Ryan C. Gilbride 

for appellees.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/03/2019 08:06 AM CDT
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302 Nebraska Report

BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 847

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Papik, J

After the Nebraska Department of Health and Human 

Services (DHHS) terminated the employment of Betty Jane 

Bower-Hansen as a teacher at the Youth Rehabilitation and 

Treatment Center in Kearney, Nebraska, Bower-Hansen sought 

to challenge the termination. She initiated grievance proceedings provided by the governing collective bargaining agreement (CBA). Those proceedings concluded when the State 

Personnel Board (Personnel Board) dismissed her grievance 

appeals. Bower-Hansen sought review of that decision in district court, and the district court affirmed the Personnel Board’s 

decision. Bower-Hansen now appeals the district court’s decision. We affirm.

BACKGROUND

June 3, 2016, Meeting.

The facts relevant to this dispute begin with a June 3, 2016, 

meeting between Bower-Hansen; John McArthur, the principal at the treatment center; and LaDene Madsen, the human 

resources manager at the center. Bower-Hansen was a member 

of the bargaining unit represented by the State Code Agency 

Teachers Association (SCATA) at the time, and representatives 

of SCATA were also present at the meeting. During the meeting, Bower-Hansen was issued a notice of discipline advising 

her that her employment was terminated for cause, effective immediately.

Bower-Hansen claims that one of her union representatives 

asked where Bower-Hansen should file a grievance challenging her termination of employment and that Madsen said that 

it should be filed with Douglas Weinberg, the director of the 

Division of Children and Family Services at DHHS. DHHS 

apparently does not contest Bower-Hansen’s account of the 

June 3, 2016, meeting.
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302 Nebraska Report

BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 847

SCATA Grievance Procedures.

The terms and conditions of employment for SCATA members were set forth in a CBA entered into between SCATA 

and the State of Nebraska. Because terms of the CBA are 

central to the arguments and issues in this case, we discuss 

them here.

The CBA allows teachers to file a grievance if they believe 

there has been a violation, misinterpretation, or misapplication 

of the CBA. It establishes a three-level grievance procedure. 

The first level (level one) requires the employee to submit the 

grievance to the “decision maker.” There is apparently no dispute that the “decision maker” with respect to the termination 

of Bower-Hansen’s employment was McArthur.

The CBA further provides that if the grievance is not resolved 

to the employee’s satisfaction at level one, the employee 

may file a grievance with the “Agency Director” within 10 

workdays of the receipt of the response at level one. Again, 

there is apparently no dispute that the “Agency Director” was 

Weinberg.

If a satisfactory resolution is not reached at the second level 

(level two), the CBA allows the employee to seek review from 

the Personnel Board. The Personnel Board is required to then 

hold a grievance hearing and issue a written response to the 

grievance. The Personnel Board’s written response constitutes 

the final administrative decision of DHHS.

Importantly, section 7.7 of the CBA provides in part:

The failure of the grievant to proceed to the first or subsequent steps of this grievance procedure within the time 

limits specified shall indicate that the grievant has elected 

not to file a grievance or has accepted the response previously rendered, and shall constitute a waiver of any 

future appeal.

Grievance Proceedings.

Less than a week after the June 3, 2016, meeting, BowerHansen, with the assistance of counsel, completed a grievance 

form challenging her termination. Rather than sending the 
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BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 847

grievance to McArthur as the CBA required, Bower-Hansen 

sent the grievance to Weinberg in accordance with what she 

claims Madsen told her at the June 3 meeting.

After several weeks had passed without receiving a response, 

on June 29, 2016, Bower-Hansen proceeded to the third level 

(level three) of the grievance procedure and submitted a level 

three grievance to the Personnel Board. She claims she did so 

under the belief that she was allowed to skip level one and 

file her initial grievance at level two and that when she did 

not receive a timely response, she was entitled to proceed to 

level three. On July 1, however, Bower-Hansen received a 

level one grievance response from McArthur. The level one 

grievance response confirmed that McArthur had received the 

grievance. It denied the grievance and the relief sought, finding that there was just cause for the termination of BowerHansen’s employment.

Bower-Hansen then submitted a level two grievance, objecting to McArthur’s denial of her grievance at level one. DHHS 

received it on July 20, 2016. DHHS later rejected BowerHansen’s level two grievance on the grounds that she did 

not file it within 10 workdays of her receipt of the level one 

response on July 1.

Bower-Hansen then filed another level three grievance 

with the Personnel Board. DHHS filed a motion to dismiss 

Bower-Hansen’s grievance in its entirety. The Personnel Board 

appointed a hearing officer to conduct a hearing and recommend a decision. The parties then stipulated to the admission 

of various documents for the hearing officer to consider in 

resolving DHHS’ motion to dismiss.

The hearing officer later issued a recommended order on 

DHHS’ motion to dismiss. His recommended order found that 

Bower-Hansen’s grievance should be dismissed because she 

failed to file her initial grievance with McArthur as required 

by the CBA. The Personnel Board later unanimously adopted 

the recommended decision of the hearing officer and dismissed Bower-Hansen’s grievance.
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BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 847

District Court.

Bower-Hansen sought review of the dismissal of her grievance in the district court. The district court affirmed the 

Personnel Board’s dismissal of her grievance. The district court 

agreed with the hearing officer’s finding that Bower-Hansen 

had failed to comply with the CBA when she submitted her 

initial grievance to Weinberg rather than McArthur.

In addition, the district court found that even if BowerHansen’s initial filing with Weinberg was appropriate, her 

subsequent grievance appeals were untimely under the CBA. 

The district court explained that after Bower-Hansen received 

McArthur’s decision denying her level one grievance, she did 

not timely file her level two appeal within 10 workdays.

Bower-Hansen appealed the district court’s decision.

ASSIGNMENT OF ERROR

Bower-Hansen assigns multiple errors to the district court’s 

decision, but they can be effectively consolidated and restated 

into one: that the district court erred by affirming the decision 

of the Personnel Board dismissing her grievance.

STANDARD OF REVIEW

[1,2] A judgment or final order rendered by a district court 

in a judicial review pursuant to the Administrative Procedure 

Act may be reversed, vacated, or modified by an appellate 

court for errors appearing on the record. J.S. v. Grand Island 

Public Schools, 297 Neb. 347, 899 N.W.2d 893 (2017). When 

reviewing an order of a district court under the Administrative 

Procedure Act for errors appearing on the record, the inquiry 

is whether the decision conforms to the law, is supported by 

competent evidence, and is neither arbitrary, capricious, nor 

unreasonable. Id.

ANALYSIS

Bower-Hansen Was Required to 

Submit Level One Grievance.

In her primary argument on appeal, Bower-Hansen contends 

that she was not required to submit a level one grievance 
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BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 847

and could begin the grievance process at level two. If her 

initial grievance is understood as a valid level two grievance, the argument goes, it was properly filed with Weinberg 

and her subsequent challenges to her termination were timely 

raised. As we will explain, however, we disagree with BowerHansen’s position that she was entitled to skip level one of the 

grievance process provided by the CBA.

Bower-Hansen offers multiple reasons for her belief that 

she was entitled to file her grievance at level two. She first 

points us to Nebraska’s Classified System Personnel Rules, 

found at title 273 of the Nebraska Administrative Code. She 

contends that a provision of those rules, 273 Neb. Admin. 

Code, ch. 15, § 008 (2006), applies to her and allowed her 

to proceed directly to level two. And, indeed, those rules do 

refer to a three-level grievance procedure similar to that set 

forth in the SCATA CBA and do contain a provision allowing 

for the initiation of grievances at level two “[i]f the grievance 

involves an involuntary separation . . . .” 273 Neb. Admin. 

Code, ch. 15, § 008.

As promising for Bower-Hansen’s position as the provision quoted above may initially sound, the argument collapses 

upon further scrutiny. As Bower-Hansen concedes, the terms 

and conditions of her employment were provided by the CBA. 

This is relevant because the Classified System Personnel 

Rules provide as follows: “Employees subject to certified 

Collective Bargaining Agreements as prescribed in Section 

81-1373 and 1374 are not covered by these rules to the extent 

that wages, hours and other terms and conditions of employment are provided for by contract.” 273 Neb. Admin. Code, 

ch. 1, § 004.03 (2006). Neb. Rev. Stat. § 81-1373 (Reissue 

2014) refers to a number of units created by statute for collective bargaining purposes. Among them, there is a unit 

composed of “employees required to be licensed or certified 

as a teacher.” § 81-1373(1)(k). In the CBA, the State recognizes SCATA as the collective bargaining agent for teachers 

employed by the State. Because the terms and conditions of 
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BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 847

Bower-Hansen’s employment are provided in the CBA, the 

Classified System Personnel Rules do not, of their own force, 

apply to Bower-Hansen.

We recognize that the CBA incorporates some sections of 

the Classified System Personnel Rules by reference, but it does 

not incorporate the provision allowing employees to skip level 

one of the grievance process. Moreover, that provision is flatly 

inconsistent with the provision of the CBA providing that the 

failure of the grievant to proceed to the first step or subsequent 

steps of the grievance process constitutes a waiver of the right 

to any future appeal. The provision in the Classified System 

Personnel Rules allowing for some grievances to be filed at 

level two does not apply to Bower-Hansen.

Bower-Hansen next argues that she was entitled to initiate 

her grievance at level two, because Madsen advised her that 

she could do so at the June 3, 2016, meeting. But, in fact, there 

is no allegation that Madsen told Bower-Hansen that she could 

initiate her grievance at level two; Bower-Hansen and her 

union representatives allege only that she was told she should 

submit her initial grievance to Weinberg. We question whether 

Bower-Hansen could ever rely on Madsen’s advice rather than 

the terms of the CBA, but she certainly could not rely on 

something Madsen is not even alleged to have said. Given the 

absence of any allegation or evidence that Bower-Hansen was 

told she could proceed directly to level two of the grievance 

process, we find no basis to conclude that a statement made at 

the June 3 meeting allowed her to do so.

Bower-Hansen Failed to 

Comply With CBA.

Because Bower-Hansen was not entitled to initiate her 

grievance at level two, either she did not file a level one grievance or she submitted one, but to the wrong official. In either 

case, Bower-Hansen failed to comply with the grievance procedures in the CBA. As we have already explained, the CBA 

explicitly provides that employees cannot skip levels in the 
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BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 847

grievance process. If Bower-Hansen’s initial grievance was a 

level two grievance, she ran afoul of this language.

Bower-Hansen can make different arguments if her initial 

grievance is treated as a level one grievance sent to the wrong 

official. Here, Bower-Hansen could contend that Madsen told 

her to file her grievance with Weinberg. Additionally, BowerHansen could point out that DHHS, at least for a time, overlooked the fact that she submitted her grievance to the wrong 

official. After all, even though Bower-Hansen submitted the 

initial grievance to Weinberg, she received a response from 

McArthur, who considered her grievance and denied it, not 

because it was submitted to the wrong official, but because 

he found her termination of employment was supported by 

good cause.

But even assuming these facts could excuse BowerHansen’s submission of the grievance to the wrong official, 

they cannot excuse the fact that she did not timely file a 

level two grievance after receiving McArthur’s denial at level 

one. DHHS did not receive Bower-Hansen’s challenge to 

McArthur’s response at level one until July 20, 2016. Even 

Bower-Hansen does not contend on appeal that this was 

timely under the provision in the CBA requiring level two 

grievances to be filed within 10 workdays of the receipt of a 

denial at level one.

Bower-Hansen Waived Her Right 

to Continue to Pursue 

Her Grievance.

As demonstrated above, whether Bower-Hansen’s initial 

grievance is treated as a level one or level two grievance, she 

failed to comply with the CBA. Bower-Hansen argues that 

even if she failed to comply with the terms of the CBA, her 

grievance could not be dismissed on this basis. For reasons we 

will explain, we disagree.

As we have noted, section 7.7 of the CBA provides that the 

failure of an employee to “proceed to the first or subsequent 
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BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 847

steps of this grievance procedure within the time limits specified shall indicate that the grievant has elected not to file a 

grievance or has accepted the response previously rendered, 

and shall constitute a waiver of any future appeal.” Whether 

Bower-Hansen skipped level one or failed to timely file a 

level two grievance, she failed to proceed to the required steps 

of the grievance procedure in the time limits specified. The 

CBA provides that such a failure constitutes a waiver of 

future appeals.

Bower-Hansen urges us to find that she did not waive her 

claims under the terms of the CBA. She claims that a finding 

of waiver results in the dismissal of her grievance on “technical” grounds. Brief for appellant at 10. According to BowerHansen, such a dismissal runs contrary to principles governing the interpretation of collective bargaining agreements. In 

support of her argument that a finding of waiver would be an 

impermissible “technical” dismissal of a grievance, BowerHansen invokes language from a 1934 opinion from this court. 

In that opinion, we quoted language from another court stating 

that collective bargaining agreements “‘ought to be construed 

not narrowly and technically but broadly and so as to accomplish its evident aims.’” Rentschler v. Missouri P. R. Co., 126 

Neb. 493, 500, 253 N.W. 694, 698 (1934), quoting Yazoo & M. 

V. R. Co. v. Webb, 64 F.2d 902 (5th Cir. 1933).

[3] The language Bower-Hansen relies on does not preclude a collective bargaining agreement from providing for 

the waiver of claims for the failure to comply with procedural 

steps. At most, it adopts a rule of construction for collective 

bargaining agreements. Even if that rule of construction might 

apply in some circumstances, it would have no bearing here. 

When the terms of a contract are clear, a court may not resort 

to rules of construction. Kercher v. Board of Regents, 290 

Neb. 428, 860 N.W.2d 398 (2015). Instead, the terms of the 

contract are to be accorded their plain and ordinary meaning. 

See id. We have previously applied this familiar rule when 

presented with a collective bargaining agreement. See Murphy 
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BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 847

v. City of Lincoln, 245 Neb. 707, 515 N.W.2d 413 (1994). 

Here, section 7.7 of the CBA provides that if an employee 

fails to timely follow all of the steps of the grievance process, 

the employee waives the right to future appeals. Given these 

clear terms, rules of construction do not come into play.

The language in the CBA providing that the failure to 

timely follow all of the steps of the grievance process constitutes a waiver of the right to future appeals also distinguishes 

this case from Parent v. City of Bellevue Civil Serv. Comm., 17 

Neb. App. 458, 763 N.W.2d 739 (2009), a Nebraska Court of 

Appeals opinion cited by Bower-Hansen. In Parent, a collective bargaining agreement required a city to take disciplinary 

action against a police officer within 30 days of being notified 

of a potential cause for discipline. After the city terminated 

the employment of an officer outside the 30-day deadline and 

the officer challenged his termination, the district court held 

that the city could not validly terminate the officer’s employment. The Court of Appeals reversed. It explained that the 

collective bargaining agreement provided a timeline for an 

investigation, but “no explicit recourse for the employee in the 

case of a delay.” Id. at 464, 763 N.W.2d at 745. Based on the 

absence of any language precluding the city from imposing 

discipline outside the 30-day deadline, the Court of Appeals 

held that the city’s failure to adhere to the deadline did not 

deprive it of the power to impose discipline.

[4,5] Unlike the collective bargaining agreement in Parent, 

the CBA in this case explicitly and plainly provided a consequence for the failure to proceed to each of the required steps 

of the grievance procedure by the specified deadlines: waiver 

of the right to future appeals. Bower-Hansen can prevail only if 

this language is not enforced. Courts do not, however, have the 

power to rewrite a contract to provide terms contrary to those 

that are expressed. See Berens & Tate v. Iron Mt. Info. Mgmt., 

275 Neb. 425, 747 N.W.2d 383 (2008). Nor is it the province 

of a court to rewrite a contract to reflect the court’s view of a 

fair bargain. Id.
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BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 847

Because Bower-Hansen waived the right to continue to 

pursue her grievance under the terms of the CBA, the district 

court did not err in affirming the Personnel Board’s dismissal 

of her grievance.

CONCLUSION

We find that the district court did not err in affirming 

the order of the Personnel Board dismissing Bower-Hansen’s 

grievance. We therefore affirm the order of the district court.

Affirmed