NEBRASKA DEPARTMENT OF ROADS EMPLOYEES ASSOCIATION, AN UNINCORPORATED ASSOCIATION, ET AL.,
APPELLANTS AND CROSS-APPPELLEES,
DEPARTMENT OF ROADS, STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLANT.
189 Neb 754, 205 N.W.2d 110
Filed March 9, 1973. No. 38617
Court of Industrial Relations: Labor and Labor Relations.
All industrial disputes involving governmental service, service of a
public utility, or other disputes as the Legislature may provide shall be
settled by invoking the jurisdiction of the Court of Industrial Relations.
Court of Industrial Relations: Employer and Employee.
A uniquely personal termination of employment does not constitute an
Public Officers and Employees.
It is a settled principle that governmental employment, in the absence
of legislation, can be revoked at the will of the appointing officer.
Labor and Labor Relations: Employer and Employee.
No person shall be denied employment because of membership in or
affiliation with, or resignation or expulsion from a labor organization.
Court of Industrial Relations: Jurisdiction.
Where the court has no jurisdiction of the subject matter of the
action, all proceedings in such action are void.
from the Court of Industrial Relations. Affirmed.
A.H. Meyer, Attorney General, and James J. Duggan, for appellee.
before WHITE, C.J. SPENCER, BOSLAUGH, SMITH, McCOWN,
This is an appeal from a judgment of the Court of Industrial Relations of the State of Nebraska dismissing, on jurisdictional grounds, an action by the Nebraska Department of Roads Employees Association and by Richard Kiernan, a member of that organization. This action was commenced following the discharge from employment of the plaintiff, Richard Kiernan, by Thomas D. Doyle, Director-State Engineer of the Department of Roads, on September 8, 1971. The Court of Industrial Relations decided the controversy on jurisdictional grounds, found that the issue involved did not constitute an "industrial dispute" within the meaning of section 48-810, R.S. Supp., 1972, and that therefore the court was without jurisdiction, and dismissed the petition. We affirm the judgment of dismissal by the Court of Industrial Relations.
order to understand the precise issue involved in this case, it is necessary
to narrate the general background of the controversy and the development of
the tension or friction between the plaintiff Kiernan and Thomas D. Doyle, the
State Engineer, from the month of January 1971.
January of 1971 the plaintiff Kiernan became interested in forming an
employees' organization within the Department of Roads.
He began by distributing a petition around the central complex of the
department in order to determine how many of his coworkers would be interested
in joining such a union. Donald O.
Swing, one of Mr. Kiernan's immediate superiors, learned of these
organizational efforts and reported them to the administrative deputy state
engineer, Roy Gardner. By February
of 1971 the matter had come to the attention of State Engineer Doyle.
April of 1971 and August 1971 the plaintiff Kiernan actively participated in
the affairs of the fledgling union, acting first as chairman of the
"Steering Committee for the Formation of the Department of Roads
Employees Association," then as chairman of the "Constitutional
Committee," and finally as chairman of the "Board of Directors"
of the association. During this
period Doyle was kept advised of the public activities of the union.
A copy of each published notice or information letter to be circulated
among the employees was delivered to Doyle's office by Kiernan marked
"Mr. Doyle: For your information. Richard
first confrontation between Doyle and Kiernan concerned a flier announcing the
first organizational meeting of the association to be held on April 16, 1971,
in the cafeteria of the Department of Roads central building.
Kiernan was called into Doyle's office and was told that the
association could not have the use of the cafeteria for the purpose of holding
its meeting because, Doyle said, the notice specifically provided that no
personnel with a rating of Grade V engineer or higher could attend, and that
under the circumstances he could not allow such a meeting to be held.
Doyle testified that he was not sure whether he had the right to allow
a closed meeting to be conducted on state property.
At this same meeting Doyle advised Kiernan that the organization did not have permission to post its notices on the departmental bulletin boards, but that permission would be granted in individual situations if supervisory personnel were given an opportunity to examine the notices prior to posting. The organization chose not to post its newsletters or notices rather than submit to supervision, and all subsequent notices bear the legend "NOT FOR BULLETIN BOARD POSTING." Deputy state engineer Roy Gardner testified that Doyle prohibited such posting because to permit it "would have opened it up for any type organization to come out and make use of a bulletin board, he didn't want to give them the right and deny others."
the ensuing months a series of meetings took place between Doyle and Kiernan.
In August 1971 Kiernan was called into Doyle's office and questioned
concerning one of the constitutional committee's information letters.
The letter, in urging department employees to join the new association,
contained the following: "In
ALL categories except one, Nebraska was below average.
THE ONE EXCEPTION BEING THE OFFICE OF STATE ENGINEER.
Nebraska did not rate better than 35th in any category and rated in the
40's in 16 categories." Doyle
was sufficiently concerned by this newsletter that he prepared a rebuttal in
the form of a comparison of the salaries of most of the fifty state highway
department heads, and based it upon more recent information than that
contained in the newsletter. Furthermore,
Kiernan was called into Doyle's office and asked whether he had considered how
this would affect his future with the Nebraska Department of Roads, or
something to that effect.
August 12, 1971, Doyle issued a memorandum to all employees of the Department
of Roads in which he alleged that the new association was spreading
information "which implies that a new grievance procedure has been
established within the Nebraska Department of roads."
He warned the employees that the only proper grievance procedures were
those provided by the Personnel System rules, and that future statements or
representations by the association in this vein "should be critically
examined before employees rely upon them to the extent that their legal rights
thereunder might be placed in jeopardy."
On August 15, 1971, Kiernan was elected chairman of the board of
directors of the N.D.R.E.A., and the constitution and by-laws of that
organization were adopted.
controversy between Kiernan and Doyle finally came to a head in late August
and early September of 1971. On
August 28, 1971, Kiernan attended a meeting of the Professional Engineers in
Government Section of the Professional Engineers of Nebraska.
This was a closed meeting, and no press representatives were invited or
present, nor was any publicity intended. At
one point in the meeting, after a discussion of the proper role for P.E.G. in
future political appointments, Larry Brown, a Department of Roads employee,
asked what P.E.G. intended to do about the State Engineer's situation.
W.R. Meyer, Jr., chairman of the meeting, expressed the opinion that
perhaps P.E.G. should have made some recommendations or taken some action at
the time of the appointment, but that it was too late to take any such action
now. Kiernan then stood up and
commented that he felt Doyle was not qualified to hold the post of State
Engineer, but agreed that it was probably too late to do anything about it at
the time. According to Mr. Meyer,
the entire discussion involved no more than 5 minutes, and Kiernan made no
more comments at the meeting concerning Doyle.
Doyle learned of Kiernan's comments through Eldon Green, a personal friend of Doyle's who had attended the meeting. Doyle admits that neither Kiernan nor anyone else gave any publicity to the remarks made there.
September 1, 1971, W.R. Meyer, Jr., was summoned to Doyle's office and asked
if Kiernan had questioned Doyle's qualifications at the P.E.G. meeting.
After receiving an affirmative reply, Doyle inquired whether Lyle
Nelson or Russ Reinig, two other active members of the N.D.R.E.A., had said
anything, to which Meyer replies that he did not believe so.
Doyle mentioned no other names and never asked exactly what Kiernan
said. Doyle indicated to Meyer
that he was considering disciplinary action against Kiernan.
a brief conference with Reinig, Doyle called Donald Swing, Kiernan's immediate
superior, and asked him to accompany Kiernan and deputy state engineer Roy
Gardner to his office. At the
meeting, Doyle asked Kiernan if he had made the remarks in question and asked
him if he would care to repeat or elaborate on such remarks.
In answer to this question, Kiernan said, "I'll be honest, it is
my contention that you're not qualified to fill the position of Director-State
Engineer, and it is my further contention that it was inappropriate for
Governor Exon to have appointed you to that position."
Kiernan made it clear that the opinion was based upon the fact that
Doyle was not a civil engineer, and did not have the necessary education or
experience to fill the job. No
voices were raised during the discussion and there was nothing threatening or
otherwise objectionable about Kiernan's demeanor.
told Kiernan that he did not believe Kiernana could conscientiously carry out
his duties in view of his attitude, and at approximately 4:55 p.m. on that
date he informed Kiernan that he was suspended as of 5 p.m. on that date.
A letter of suspension was immediately prepared by Doyle.
The letter recites the activities which took place at the meeting and
advised Kiernan that the suspension would last until a final determination was
made by Doyle within the next week to 10 days.
W.R. Meyer, Jr., testified that he went back to Doyle's office to inform him that Kiernan had not been the one to raise the subject of his qualifications at the meeting, but he arrived after the suspension had already taken place. He nonetheless advised Doyle of this fact, whereupon Doyle replied that it did not matter because Kiernan had already been suspended. Doyle never did inquire as to who brought up the subject.
late September 7th or early September 8th a letter of termination was sent to
Kiernan by certified mail. The
letter cited as reasons for the termination:
"1. Direct insubordination 2.
Conduct unbecoming a State employee
3. For the good of the
classified service." On
September 8th Doyle presented a speech to a Lancaster County Democratic
luncheon which, as Doyle knew, was attended by local newspaper reporters.
Even though it was unlikely that Kiernan had received formal notice of
his termination, Doyle nonetheless announced his decision at the luncheon.
Doyle went on to say that "we can not afford obstructionists"
in the Department of Roads and that "we are trying to identify (those
persons who are not good, dedicated employees) to convince them of the
administration's point of view or encourage them to seek employment
During the period after Kiernan's termination, Doyle made known his opinion that supervisory personnel should not belong to an organization such as the N.D.R.E.A., which also includes among its membership nonsupervisory personnel. During this period at least six supervisors who had been very active in the N.D.R.E.A. resigned from the organization.
basic controversy here is whether or not the dismissal of the plaintiff
Kiernan by Doyle under the circumstances above set forth involved an
"industrial dispute" within the meaning of section 48-810, R.S.
Supp., 1972, which gives jurisdiction to the Court of Industrial
Relations only when such industrial dispute is involved.
Section 48-810, R.S. Supp., 1972, provides:
"All industrial disputes involving governmental service, service
of a public utility, or other disputes as the Legislature may provide shall be
settled by invoking the jurisdiction of the Court of Industrial
supplied.) From this language
alone, it is clear that a uniquely personal termination of employment does not
constitute an industrial dispute within the meaning of the statute.
We are not called upon in this case to either explore or decide any
possible close questions involving the precise meaning of the term
"industrial dispute" in other factual contexts.
The interest of a government employee in retaining his job can be
summarily denied. It is a settled
principle that government employment, in the absence of legislation, can be
revoked at the will of the appointing officer.
Jones v. Hopper, 410 F.2d 1323 (1969), cert. den. 397
again briefly review the pertinent evidence with relation to whether the
determination of the Court of Industrial Relations is supported by the
evidence. The evidence does
disclose something more than the simple discharge of an employee by his
superior. Of course, it is true,
that there is no allegation that Kiernan's performance prior to the time he
became involved in union activities was anything less than superior.
But, as the court below noted in its findings and order, and as the
evidence we have reviewed clearly demonstrates, there developed a substantial
and apparently irreconcilable personality conflict between Doyle and Kiernan.
The court below said: "We
do not analyze this evidence in detail nor reach a conclusion as to 'fault,'
because interpreted most favorably to Mr. Kiernan it could only support the
further inference that Mr. Doyle's letter purporting to remove Mr. Kiernan
from his employment was motivated by anti-Kiernan animus rather than by
anti-labor organization animus. It
is clear that Mr. Kiernan gave no indication that he was acting or speaking
for the Association when he did any of the things Mr. Doyle found
offensive." (Emphasis supplied.)
agree. We hold, as did the court
below, that the discharge of Richard Kiernan from his employment from the
State of Nebraska, Department of Roads, constituted a uniquely personal
termination of employment and not an industrial dispute.
The plaintiffs simply fail adequately to show reasons for the discharge
other than the direct insubordination and a clear personality conflict between
Doyle and Kiernan. accordingly,
the Court of Industrial Relations was correct in finding that it lacked
jurisdiction over the subject matter of this action under section 48-810, R.S.
The same argument disposes of the plaintiffs' contention that Doyle's action in dismissing Kiernan violated rights guaranteed to Kiernan under Article XV, section 13, of the Constitution of the State of Nebraska, and section 48-837, R.S. Supp., 1972. The former provides: "No person shall be denied employment because of membership in or affiliation with, or resignation or expulsion from a labor organization***." The latter provides: "Public employees shall have the right to form, join and participate in *** any employee organization of their own choosing." The finding by the Court of Industrial Relations that no antiunion animus was shown to have prompted Kiernan's dismissal dictated a finding that Kiernan had not been denied rights under either of these provisions. The two findings rest on the same factual base, and were necessary to determine the jurisdictional issue.
the court below lacked jurisdiction over the subject matter it was correct in
refusing to decide whether or not Kiernan was in fact guilty of insubordination,
or whether other constitutional violations were present.
It is elementary that where a court has no jurisdiction over the subject
matter of the action, the proceedings in such action are void.
Wolski v. Lippincott, 147
we have found that the court below had no jurisdiction over the subject matter,
it is unnecessary for us to consider the other issues raised on this appeal or
the cross-appeal. The judgment is
correct and is affirmed, and the cross-appeal is dismissed.