Submitted: October 18, 2018
Consideration of Appellant's Appeal from the Merit
Employee Relations Board. AFFIRMED
Rausch, Pro Se Appellant.
Slattery, Esquire, Department of Justice, Deputy Attorney
L. Scott, Jr. Judge
issue before the Court is whether an employee, covered by a
Collective Bargaining Agreement, adhered to the filing
deadlines for appeals as outlined in the Agreement and the
Merit Employee Relations Board's Merit Rules.
Laura Rausch was previously employed as a Registered Nurse
(RN) in the Delaware Department of Health and Social
Services. Appellant worked at the Governor Bacon Health
Center (GBHC), a 94 bed long-term residential facility for
elderly patients with chronic health conditions. Appellant
worked at GBHC from December 1, 2014, until January 6,
2018. Appellant's position was covered by a
Collective Bargaining Agreement (CBA) between the Delaware
Department of Health and Social Services (DHSS) and a
Division of the AFSCME, known as the Merit Employee
Bargaining Unit #6.
2016, Appellant received a promotion in error from RN II to
RN III. The career ladder path for RNs includes an
intermediate level of RN II Level II between RN II and RN
III. Following an audit in April 2017, it was discovered
Appellant was not eligible for a promotion to RN III.
Appellant was notified of the error and she was notified of a
retroactive correction of her classification and pay would be
imposed. The correction resulted in an overpayment of
Appellant's wages which Appellant was required to repay
under 29 Del. C. § 5943.
followed the grievance process as outlined in her bargaining
unit's 2016 CBA. Appellant argued the modification of her
promotion was a violation of the CBA relating to discipline
without just cause. Appellant further argued she bore a
greater responsibility working at the RN III level, and as a
result should be allowed to retain the overpayment.
grievance process proceeded without incident. Appellant had a
review at Step 3 with the Department Secretary, and at Step 4
with the Cabinet Secretary. The decision at that time was
that despite the error that resulted in Appellant's
promotion of two levels instead of one, there was no
violation of the CBA, therefore the overpayment of wages must
be paid back in accordance with State law. The Cabinet
Secretary's decision was dated October 25, 2017, and sent
to Appellant and her union representative via email. The
Board accepted as fact that Appellant did not receive this
decision until November 15, 2017.
filed an appeal with the Department of Human Resources (DHR)
Secretary on December 5, 2017. On December 20, 2017,
Appellant was notified that her appeal was not timely filed,
therefore the DHR Secretary could not proceed.
then appealed that decision to the Merit Employee Relations
Board (MERB). A MERB hearing was held on April 19, 2018. The
MERB concluded as a matter of law Appellant's grievance
was controlled by the CBA, and that her appeal to Director of
Labor Relations and Employment Practices must have been filed
within 10 days of the Cabinet Secretary's decision. The
appeal to the Director of Labor Relations was not timely
filed, and therefore the MERB did not have jurisdiction to
hear the grievance.