[§89-10.8]  Resolution of disputes;grievances.  (a)  A public employer shall enter into written agreement withthe exclusive representative setting forth a grievance procedure culminating ina final and binding decision, to be invoked in the event of any disputeconcerning the interpretation or application of a written agreement.  Thegrievance procedure shall be valid and enforceable and shall be consistent withthe following:

(1)  A dispute over the terms of an initial or renewedagreement shall not constitute a grievance;

(2)  No employee in a position exempted from chapter76, who serves at the pleasure of the appointing authority, shall be allowed togrieve a suspension or discharge unless the collective bargaining agreementspecifically provides otherwise; and

(3)  With respect to any adverse action resulting froman employee's failure to meet performance requirements of the employee'sposition, the grievance procedure shall provide that the final and bindingdecision shall be made by a performance judge as provided in this section.

(b)  The performance judge shall be a neutralthird party selected from a list of persons whom the parties have mutuallyagreed are eligible to serve as a performance judge for the duration of thecollective bargaining agreement.  The parties, by mutual agreement, may modifythe performance judge list at any time and shall determine a process forselection from the list.

(c)  The performance judge shall use theconditions in section 76-41(b) as tests in reaching a decision on whether theemployer's action, based on a failure by the employee to meet the performancerequirements of the employee's position, was with or without merit.

(d)  If it is alleged that the adverse actionwas not due to a failure to meet performance requirements but for disciplinaryreasons without just and proper cause, the performance judge shall firstproceed with a determination on the merits of the employer's action undersubsection (c).  If the performance judge determines that the adverse action maybe based on reasons other than a failure to meet performance requirements, theperformance judge shall then determine, based on appropriate standards ofreview, whether the disciplinary action was with or without proper cause andrender a final and binding decision. [L 2000, c 253, §91]