| ROBERT PENNY, | | | CASE NO. 740 |
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| Petitioner, | | | |
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| v. | | | FINDINGS AND ORDER |
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| CITY OF FREMONT, NEBRASKA, | | | |
| DEPARTMENT OF UTILITIES, | | | |
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| Respondent. | | |
Appearances:
For the Petitioner: Malcolm D. Young
Young & White
8901 Indian Hills Drive, #210
Omaha, Nebraska 68114-4071
For the Respondent: Jerry L. Pigsley
Heron, Burchette, Ruckert & Rothwell
500 The Atrium, 1200 "N" Street
P.O. Box 82028
Lincoln, Nebraska 68501-2028
MULLIN, J:
Before: Judges Mullin, Kratz, and Orr
Petitioner was an employee of Respondent but was terminated before this action was filed. He brings this action asking in Count I that we:
a.Declare that he is a member of the bargaining unit and covered by the Contract between Respondent and Local Union No. 1536 of the International Brotherhood of Electrical Workers, AFL-CIO;
b.That he is entitled to all the benefits and income afforded a regular employee in his respective classification under the Contract;
c.That Respondent be ordered to pay him, retroactively, the salary and benefits from September, 1986 through and including February, 1988; and
d.For an award of attorney's fees and costs.
In Count II he asks that we determine that he was discharged in violation of Section 48-811 R.R.S. (1943) and that he be reinstated with back pay since February 25, 1988. At the pretrial conference Petitioner also contended that the discharge was in violation of Section 48-819.01, R.R.S. 1943.
FACTS
Petitioner was employed by Respondent as a temporary utility worker on September 25, 1986. As such, he worked full-time side by side with the "regular" utility workers and did the same work. A "regular" employee is a member of the aforementioned Union and entitled to certain salary and other benefits under the negotiated Contract. A temporary employee is not covered by the Contract.
Throughout his seventeen months of employment Petitioner periodically requested that he be upgraded to a regular employee so that he could receive the benefits to which he thought he was entitled. Then, in February of 1988 after Petitioner had retained legal counsel who made demands upon Respondent for certain employment documents, Petitioner was terminated.
In late December 1987, Petitioner was given a Personnel Manual/Contract which carried an effective date of August 1, 1987. Attached to it was a copy of an earlier edition of the Personnel Manual/Contract which had an effective date of April 19, 1984. (Exhibit 25). The earlier edition of the Personnel Manual/Contract defined temporary employee as "...one who has been employed to work for less than six consecutive months in a calendar year." the later edition of the Personnel Manual/Contract did not define temporary employee but defined a regular employee as "...one who has been employed to work at least 30 hours per week for at least six months per year and has been hired as such."
Petitioner testified that he was assured at the time he was hired that he would "probably" get on as a regular employee within two weeks.
Petitioner testified, and there is no dispute, that he is presently disabled due to an injury on the job which occurred in February of 1988 (6:15) and that he is unable to do the work required in his prior job with the Respondent. (27:13 et seq.) He contends that there was plenty of work to be done by utility workers at the time of his termination; however, that was disputed by Respondent. Respondent offered testimony that the work load was declining and that other city employees were transferred to the Department of Utilities and the two temporary employees, Petitioner included, were layed off. (67:1 et seq.).
STATUTES
Our authority to act is limited to "industrial disputes" as defined by Section 48-801(7) R.R.S. 1943:
Industrial dispute shall include any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or refusal to discuss terms or conditions of employment.
Not all terminations rise to the level of an "industrial dispute". In Nebraska Dept. of Roads Employees Ass'n v. Dept. of Roads , 189 Neb. 754, 205 N.W.2d 110 (1973) an employee was terminated because of a personal conflict or dispute with his supervisor. The Supreme Court affirmed our decision that we had no jurisdiction since the termination was uniquely personal and not the result of antiunion animus and, as such, it did not amount to an industrial dispute.
The scope or breadth of the phrase "industrial dispute" must be tempered by the public policy behind the Industrial Relations act. Section 48-802 R.R.S. (1943) sets this policy as:
(1) The continuous, uninterrupted and proper functioning and operation of the governmental service in a proprietary capacity and of public utilities engaged in the business of furnishing transportation for hire, telephone service, telegraph service, electric light, heat or power service, gas for heating or illuminating, whether natural or artificial, or water service, or any one or more of them, to the people of Nebraska are hereby declared to be essential to their welfare, health and safety...
The interpretation of "industrial dispute" within that public policy by University Police Officers Union v. University of Nebraska , 203 Neb. 4, 277 N.W.2d 529 (1979) is controlling on this point.
A reading of the applicable provisions of the act clearly establishes that the authority of the CIR is narrowly described and is limited in scope. In the first instance, it is limited to "industrial disputes" as defined by section 48-801 (7), R.R.S. 1943. These include any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or refusal to discuss terms or conditions of employment. While this may provide in some limited instances authority for the CIR to act, it does not grant to the CIR the authority to declare unfair labor practices and to take action therefor.
The adoption of sections 48-801 to 48-838, R.R.S. 1943, was not intended to in any way remove the lawful responsibility or the proper prerogative of public employers in the exercise of their recognized management rights, or in the exercise of their lawful duties, except as may otherwise have been specifically entrusted to the CIR in resolving industrial disputes as prescribed by the statutes.
203 Neb. at 14.
Many of the factors involved in School Dist. of Seward Education Assn. v. School Dist. of Seward, supra , are not applicable here. It nevertheless does point up the fact that not all matters about which the public employer and its employees disagree constitute an industrial dispute over which the CIR obtains jurisdiction....
203 Neb. at 15.
In providing a forum for the public employer and public employees to resolve disputes regarding terms and conditions of employment, the Act was not intended to create a special judicial system for resolving breach of contract cases by public employees. See Transport Workers of America v. Transit Authority of the City of Omaha , 205 Neb. 26, 286 N.W.2d 102 (1979) where our Supreme Court said:
If the CIR has authority to hear cases involving an alleged breach of contract, declared rights, duties, and obligations of parties and grant equitable relief such as an accounting, that authority must be found in the Constitution and statutes creating and authorizing the CIR. We are unable to find such authority.
205 Neb. at 31.
This is not a case of a single employee seeking to have us set his wages or other terms of employment as one could do under Sections 48-811 and 48-818, R.R.S. 1943, which provide in part:
48-811 ... any ... employee ..., when any industrial dispute exists ..., may file a petition with the Commission of Industrial Relations invoking its jurisdiction....
48-818 .... In making such findings and order or orders, the Commission of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent...
This is a case where the employee is asking that we determine that he was a regular employee under an existing contract and entitled to those specific wages and benefits.
We cannot declare the rights of these parties under the Personnel Manual/Contract in evidence and the oral testimony regarding the terms under which Petitioner was hired. Nor can we resolve the contractual claim that he is entitled to the benefits of that contract.
Petitioner's contention under Count II that he is entitled to reinstatement with back wages for a violation of 48-811 is also unfounded. Without regard to the evidence as to whether he was terminated because he hired a lawyer to try to force a reclassification or because of lack of work, the Petition in this case was filed after the termination. The Supreme Court, in University Police Officers Union v. University of Nebraska, supra , addressed this and held:
The only provisions which can be found in the act concerning activities of the employer are found in Section 48-811, R.R.S. (1943), and apply only during the pendency of a petition for recognition....
203 Neb. at 16 (Emphasis added).
....The provisions of Section 48-811, R.R.S. (1943), do not constitute matters similar to those prescribed in Sections 8a and 8b of the NLRA. Thus, the CIR does not, by reason of Section 48-811, R.R.S. (1943) have authority to declare unfair labor practices. If, in fact, the evidence discloses that a public employer is threatening or harassing an employee because of any petition filing by such employee, the CIR is limited to entering an order directing the employer to cease and desist such threat or harassment. The CIR has no authority, however, to require anything further. Upon failure of the public employer to cease and desist, action must be brought by the employee in the appropriate District Court seeking to hold the public employer guilty of contempt of court. Other action, which an employee may seek in connection with a public employer's action against such employee, must be sought by other means in appropriate courts and not before the CIR....
203 Neb. at 17 (Emphasis added).
An example of a termination which amounts to an industrial dispute and where we would have the authority to order the employer to cease and desist, effectively reinstating the employee, is shown in Mid-Plains Education Assn. v. Mid-Plains Nebraska Tech. College , 189 Neb. 37, 199 N.W.2d 747 (1972). There the alleged terminations (actually refusals to reinstate) were done after a petition had been filed before us to establish representation. The evidence clearly showed the "terminations" were motivated by the pending petition. As stated before, here there was no petition pending at the time of the termination.
Section 48-8l9.0l, R.R.S. 1943 provides:
Whenever it is alleged that a party to an industrial dispute has engaged in an act which is in violation of any of the provisions of the Industrial Relations Act, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in such act, the commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in section 48-802, and to resolve the dispute.
While this section was not in effect when University Police Officers Union v. University of Nebraska, supra ., was tried, it does not enlarge our jurisdiction beyond "industrial disputes." It is Petitioner's contention that the termination was in retaliation for his hiring an attorney to investigate his entitlement to the benefits under the Personnel Manual/Contract. He admitted that he was not a member of the bargaining unit and that he had not sought to become one. (30:2 et. seq.) Taken in a light most favorable to Petitioner, the most the evidence shows is that he was terminated because he demanded a contractual right to the benefits under that Contract. It is unnecessary for us to determine whether that was in fact the reason for his termination because such relief is not provided for under the Industrial Relations Act. It is therefore not a protected activity under Section 48-819.01, R.R.S. 1943.
In his brief Petitioner argues that one of the rights under the Act is comparable pay for comparable work. This is apparently a reference to Section 48-818, R.R.S. 1943. Were he asking us to set his wages under this section of the act he would be entitled to offer proof of the prevalent as would the employer. That proof might well include other employers who have "temporary" positions who are compensated differently than "permanent" positions. This is an action for specific contractual wages and benefits and is beyond our jurisdiction.
In summary:
1. We do not have jurisdiction to decide the rights of the parties under the written contract;
2. We do not have jurisdiction to decide the contract issues under the oral contract at the time of hiring;
3. Section 48-811 has no application since there was no petition pending;
4. Section 48-819.01 has no application because Petitioner's claim is not an industrial dispute.
In light of the decision to dismiss this action on the grounds of lack of jurisdiction, it is unnecessary to rule on the evidentiary matters taken under advisement during the hearing.
IT IS THEREFORE ORDERED that Petitioner's Petition be dismissed.
All judges assigned to the panel in this case join in the entry of these Findings and Order.
Entered May 26, 1989.
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